United States v. Private E2 DENNIS BAILON
ARMY 20160240
| A.C.C.A. | Jan 10, 2017Background
- Appellant Private (E-2) Dennis Bailon pleaded guilty to two specifications for violating an order (Article 92, UCMJ) and to assault consummated by a battery as a lesser-included offense of abusive sexual contact (Article 128, UCMJ).
- Military judge sentenced appellant to a bad-conduct discharge, confinement for seven months and one day, forfeiture of all pay and reduction to E-1; convening authority limited confinement to six months per a pretrial agreement.
- At the Care inquiry, trial counsel and defense counsel jointly told the military judge the maximum punishment included 18 months confinement; the judge then advised appellant of that maximum.
- On appeal, the court concluded the correct maximum confinement was eight months (not eighteen), so the military judge and counsel overstated the maximum by ten months.
- Appellant did not claim ineffective assistance of counsel, did not challenge the providence of his pleas, and did not seek relief under his pretrial agreement protections.
- The Army Court reviewed the record under Article 66, UCMJ, found the judge erred on the maximum punishment calculation but determined the error did not materially prejudice appellant’s substantial rights, and affirmed the findings and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the military judge mis-stated the maximum punishment | Prosecution implicitly agreed (at trial) to an 18-month confinement maximum | Appellant argues the judge used an incorrect higher maximum which could have influenced sentencing | Court: Judge erred; correct max confinement is 8 months, not 18 months |
| Whether the incorrect maximum materially prejudiced appellant's substantial rights | N/A (government did not argue prejudice) | Appellant asserts possible causal relationship between error and sentence | Court: No material prejudice found; conviction and sentence affirmed |
| Whether trial counsel or defense counsel rendered ineffective assistance by agreeing to wrong maximum | N/A (appellant did not claim ineffective assistance) | Appellant did not allege ineffective assistance | Court: No ineffective-assistance claim; no relief warranted |
| Whether appellant can upset plea or pretrial agreement based on the sentencing-max error | N/A (no challenge to plea or PTA protections) | Appellant made no post-hoc effort to disturb plea or pretrial agreement | Court: Plea and pretrial agreement protections stand; no relief granted |
Key Cases Cited
- United States v. Baransky, 17 M.J. 54 (C.M.A. 1983) (standard for determining whether sentencing error materially prejudices substantial rights)
- United States v. Phillips, 74 M.J. 20 (C.A.A.F. 2015) (authoritative guidance on computing maximum punishments)
- United States v. Amaya, 74 M.J. 264 (C.A.A.F. 2015) (authority on maximum punishment calculations)
- United States v. Care, 18 U.S.C.M.A. 535 (1969) (requirements for advising accused of maximum punishment during plea inquiry)