United States v. Staff Sergeant FRANCISCO I. NAREWSKI
ARMY 20140080
| A.C.C.A. | Aug 22, 2016Background
- On 27 April 2013 Staff Sergeant Narewski, a Fort Jackson drill sergeant on CQ duty, drank alcohol, provided alcohol to at least one trainee, engaged in sexual conduct with trainees (including intercourse and groping), and later drove intoxicated with three trainees, during which he threw a smoke grenade at a headquarters building. He was tasered by military police after refusing orders.
- At trial Narewski pleaded guilty to adultery and to providing alcohol to a person under 21; he pleaded not guilty to several other charges but was found guilty of driving while drunk, drunk on duty, three specifications of abusive sexual contact, and drunk and disorderly.
- The military judge sentenced him to a bad-conduct discharge, five months confinement, and reduction to E-1; the convening authority approved the sentence with a narrow waiver of forfeitures for the spouse.
- On appeal Narewski argued ineffective assistance by his civilian trial counsel and raised several personal matters under Grostefon; the Army Court found no prejudice from counsel’s shortcomings and denied relief on Grostefon matters.
- The court found a substantial basis in law to question the providence of his guilty plea to providing alcohol to a minor under S.C. Code § 61-6-4070 (assimilated by 18 U.S.C. § 13), because the statute is silent as to mens rea and the plea colloquy did not establish culpable mental state.
- The court set aside and dismissed that specification, affirmed the remaining findings, reassessed and affirmed the sentence as at least as severe as adjudged, and ordered restoration of rights affected by the dismissed finding.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether appellant’s guilty plea to providing alcohol to a person under 21 was provident given the statute’s silence on mens rea | Appellant conceded providing alcohol but (per plea) did not establish criminal intent; plea should stand | Statute criminalizes providing alcohol to minors as assimilated state law and was pleaded and admitted | Court: Substantial basis in law to question plea because statute lacks express mens rea and plea colloquy did not establish culpability; set aside and dismissed the specification |
| Whether civilian defense counsel was ineffective at trial | Counsel’s unfamiliarity with court-martial practice deprived appellant of effective assistance | Military judge and detailed defense counsel corrected errors; appellant failed to show prejudice | Court: No prejudice shown; ineffective assistance claim denied |
| Whether appellant’s Grostefon matters (sentence severity, property loss, delay) warrant relief | Appellant asserted sentence excessive and other personal grievances | Government urged denial | Court: Grostefon matters merit no relief |
| Whether sentence can be reassessed after dismissal of one specification | Appellant argued reassessment improper or would reduce sentence | Government supported reassessment to determine impact | Court: Reassessed under Winckelmann and Sales; sentence affirmed as at least as severe as adjudged |
Key Cases Cited
- United States v. Gifford, 75 M.J. 140 (C.A.A.F.) (mens rea requirement for offenses under general orders analyzed in light of Elonis)
- Elonis v. United States, 135 S. Ct. 2001 (2015) (Supreme Court discussion of mental state requirements for criminal liability)
- United States v. Winckelmann, 73 M.J. 11 (C.A.A.F.) (standards for sentence reassessment on appeal)
- United States v. Sales, 22 M.J. 305 (C.M.A.) (principles for sentence reassessment)
- Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance requires showing of prejudice)