UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant LASHAWN M. JENNINGS

United States Air Force

ACM 38355

06 November 2014

Sentence adjudged 6 Mar ch 201 3 by G CM convened at Scott Air Force
Base, Illinois . Military Judge: Lynn Schmidt 1 (sitting alone)

.

Approved S entence: Confinement for 12 months and reduction to E

- 4.

Appellate Counsel for the Appellant: Major Christopher D. James

.

Appellate Counsel for the United States: Lieutenant Colonel C. Taylor Smith; Captain Richard J. Schrider ; and Gerald R. Bruce, Esquire

.

Before

HECKER

, WEBER, and KIEFER Appellate Military Judges

OPINION OF THE COURT

This opinion is subject to editoria l correction before final release

.

KIEFE R, Judge:

A general court

- martial composed of a military judge sitting alone convicted the appellant, contrary to her pleas, of a single specification of culpably negligent child endangerment resulting in harm, in violation of Article 134, UCMJ, 10 U.S.C. § 934. The military judge sentenced the appellant to confinement for 12 months and reduction to

E

- 4. The convening authority approved the sentence as adjudged.

The appellant challenges the severity of her sentence and claims ineffective

assistance of trial defense counsel. 2 We affirm.

1 Prior to this opinion, the military trial judge’s last name changed from Schmidt to Watkins.ACM 38355 2 Background

The appellant adopted a five

- year

- old child in 2005. Years later, she married Mr. James Jennings. In 2012, the child visited a school nurse complaining of a hurt arm. The nurse noticed significant bruising on the child ’ s arm and a bruise on his back. Eventually, the child disclosed that his stepfather, Mr. Jennings, had abused him by hitting him with his hand and a belt. A subsequent medical examination found several

bruises on the child ’ s body.

The child later described how Mr. Jennings regularly beat him, with the appellant ’ s knowledge. He also stated that shortly before his injuries were discovered, the appe llant left him in the care of Mr. Jennings. On this occasion, Mr. Jennings punished the child for eating cookies by forcing him to eat the whole package of cookies, including crumbs that had fallen on the floor. Mr. Jennings also forced the child to eat other items on the floor, including two screws. A subsequent x

- ray confirmed the child had ingested two screws.

The appellant was convicted of endangering her child in a culpably negligent manner by leaving the child with a caregiver whom she knew had ca used bodily harm to the child in the past. 3

Sentence Severity

In this case, the a ppellant argues that her sentence of confinement for 12 months

and reduction to E

- 4 was too severe based on the offense for which she was convicted. Additionally, she main tains that her sentence was unduly harsh as compared to the sentence her husband received in a civilian criminal proceeding for allegedly related

conduct.

This c ourt “may affirm only such findings of guilty and the sentence or such part

or amount of the s entence, as [we find] correct in law and fact and determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). We review sentence appropriateness de novo, employing “a sweeping congressional mandate to e nsure a fair and just punishment for every

accused.” United States v. Baier

, 60 M.J. 382, 384 (C.A.A.F. 2005) (quoting

United States v. Bauerbach , 55 M.J. 501, 504 (Army Ct. Crim. App. 2001)) (internal quotation marks omitted). “We assess sentence appropriateness by considering the particular appellant, the nature a nd seriousness of the offense , the appellant ’ s record of

2 The appellant raises the ineffective assistance of counsel issue pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982).

3 The military judge acqui tted the appellant of two specifications of assault consummated by a battery and two additional specifications of child endangerment by design.ACM 38355 3 service, and all matters contained in the record of trial.” United States v. Anderson

, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 200 9) (citing United States v. Snelling

, 14 M.J. 267, 268 (C.M.A. 1982)) . Although we are accorded great discretion in determining whether a particular sentence is appropriate, we are not authorized to engage in exercises of clemency. United States v. Nera d , 69 M.J. 138, 146 (C.A.A.F. 2010).

Additionally, “[t]he Courts of Criminal Appeals are required to engage in sentence comparison only ‘ in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sent ences adjudged in closely related cases. ’ ”

United States v. Sothen , 54 M.J. 294, 296 (C.A.A.F. 2001) (quoting United States v.

Ballard , 20 M.J. 282, 283 (C.M.A. 1985)). Sentence comparison is not required unless

this c ourt f

inds that any cited cases are “ closely related” to the appellant ’ s case and the sentences are “highly disparate.” United States v. Lacy , 50 M.J. 286, 288 (C.A.A.F. 1999). Closely related cases include those which pertain to “coactors involved in a
common crime, servicemembers involved in a common or parallel scheme, or some other direct nexus between the servicemembers whose sentences are sought to be compared.”

Id. The “appellant bears the burden of demonstrating that any cited cases are ‘ closely

related ’ to his or her case and that the sentences are ‘ highly disparate. ’ If the appellant

meets that burden . . . then the Government must show that there is a rational basis for the disparity.” Id.

We decline the appellant ’ s invitation to engage in sentence comparison. While the two cases may appear factually “related,” we find they are not “closely related” as defined by our case law. Even if we were to find the appellant ’ s case is “closely related”

to her husband ’ s civilian criminal case, the appellant wo uld still need to demonstrate that her sentence was “highly disparate” from her husband ’ s sentence before we would consider granting relief on a sentence comparison basis.

Our assessment of whether a sentence is highly disparate may consider both the

el ements of the sentences to be compared as well as the punitive exposure each person

faced. The appellant argues that her husband received only “weekend confinement, probation and counseling.” There is no evidence in the record to support this claim.

Eve n if we accepted it at face value, however, this statement still fails to address what charge (s) Mr. Jennings was convicted of , the maximum sentence authorized, the facts and

evidence presented, and whether any plea bargain was involved in his case. Accor dingly, we cannot say that the appellant ’ s sentence is “highly disparate” from her husband ’ s sentence, given the different jurisdiction and unknown circumstances of his case. Accordingly, because the appellant ’ s case and that of her husband are not “close ly related” and because we do not find the sentences to be “highly disparate” on the facts presented, we are not required to conduct a sentence comparison in this case.

As part of our authority to review the appropriateness of a sentence, however, we

also consider the appellant ’ s sentence i n its own right. The appellant was convicted ofACM 38355 4 endangering her child in a culpably negligent manner by leaving the child with a caregiver whom she knew to have been abusive in the past. Additionally, the child sustained harm through the appellant ’ s culpably negligent act . The appellant faced a

maximum sentence of a bad

- conduct discharge, confinement for 2 years, reduction to

E

- 1, and total forfeiture of all pay and allowances, and was sentenced to 12 months

co nfinement and reduction to E

- 4. The appellant ’ s argument that “50% of the maximum confinement” is too severe fails to consider the entire range of punishment at issue. Notably, the appellant did not receive a bad

- conduct discharge, which would have been a severe punishment with a lasting impact, especially for the appellant who had over 18 years of service and was approaching retirement eligible status. Furthermore, she did not receive any adjudged forfeitures and was only reduced to E

- 4.

Evaluating t he severity of the sentence, we find that reduction to E

- 4 and confinement for 12 months is not inappropriate based on the facts and circumstances of

this case and all matters in the record of trial.

Ineffective Assistance of Counsel

Appellant also argu es that her trial defense counsel was ineffective for failing to submit evidence that the child previously made an unsubstantiated allegation of abuse (against different individuals) and failing to cross

- examine the child about being a

“ thief. ”

When revi ewing claims of ineffective assistance of counsel, we follow the

two

- part test outlined by the United States Supreme Court in Strickland v. Washington

, 466 U.S. 668, 687 (1984). See United States v. Tippit , 65 M.J. 69, 76 (C.A.A.F. 2007). Our superior court has applied this standard to military courts

- martial, noting that “[i]n order to prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate both (1) that his counsel ’ s performance was deficient, and (2) that this

deficienc y resulted in prejudice.” United States v. Green , 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland , 466 U.S. at 687; United States v. Mazza

, 67 M.J. 470, 474 (C.A.A.F. 2009) ).

“[T]he defense bears the burden of establishing the truth of the factual allegations that would provide the b asis for finding deficient performance.” Tippit , 65 M.J. at 76. When there is a factual dispute, appellate courts determine whether further fact

- finding is required consistent with United States v. Ginn

, 47 M.J. 236

, 243 (C.A.A.F. 1997). If, however, the fact s alleged by the defense would not result in relief under Strickland , the

c ourt may address the claim without the necessity of resolving the factual dispute.

See Ginn , 47 M.J. at 248. Such is the case here.

T rial defense counsel acknowledged in a post

- trial affidavit that he was aware of a prior abuse allegation made by the child against several members of the appellant’sACM 38355 5 family while they were caring for the child in Florida at the appellant’s request

. He was

also aware the child had been arrested at Scott Air Force Base (AFB), Illinois, for a theft issue. Notwithstanding this, trial defense counsel elected to not question the child or any other witness about either the prior abuse allegation or the the ft issue. His basis for declining these lines of inquiry was that they did not fit with his case theory of casting blame on the appellant ’ s husband, and he also wanted to avoid alienating the fact

- finder and creating added sympathy for the child. These a re typical tactical decisions normally

entrusted to a trial defense counsel. United States v. Perez , 64 M.J. 239, 243 (C.A.A.F. 2006) ( holding as a general matter, appellate courts will not second guess the strategic or tactical decisions made at trial by defense counsel). Upon review of the record, we find these decisions were reasonable based on the facts of this case. Consequently, we do not

find trial defense counsel ’ s performance to be deficient.

Additionally, even if there was some deficiency in trial defense counsel ’ s tactical decisions, there was no prejudice to the appellant. To establish prejudice, the appellant

must show “ that there is a reasonable probability that, but for counsel ’ s [deficient performance], the result of the proceedings wou ld have been different.” Strickland

, 466 U.S. at 694. First, the evidence trial defense counsel allegedly failed to use at trial falls short of the appellant ’ s representations or would not have been beneficial to the

defense case . While the prior abuse allegation was not substantiated, the findings did not indicate that the child lied or was untrustworthy and, as trial defense counsel noted, the report about this allegation indicated the child had been left with family members wh o had a “pattern of reports” filed against them at the civilian family services agency

. Regard ing the child’s arrest at Scot t AFB, there is some question whether this would have even been admissible in this prosecution for assault and child endangerment. A failed attempt to characterize the child as a delinquent may have also had negative

ramifications for the appellant in se ntencing.

In this case, the appellant was acquitted of four of five specifications. Additionally, she did not receive a punitive d ischarge. We agree with trial defense counsel that the physical evidence of abuse was overwhelming and attacking the child through use of a prior allegation of abuse and a possible theft was unlikely to result in a

better outcome. Further, a failed effor t to attack the child in this manner could have resulted in convictions on additional specifications or an increased sentence. Accordingly, applying the Strickland standard, trial defense counsel ’ s actions were not deficient, and there was no prejudice to the appellant.

Conclusion

The approved findings and the sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) and 66(c), 10 U.S.C. §§ 859(a), 866(c).ACM 38355 6 Accordingly, the approved findings and the sentence are AFFIRMED

.

FOR THE COURT

STEVEN LUCAS

Clerk of t he Court