## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, MORAN, 1 and CAMPANELLA Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant TARENCE C. DIXON United States Army, Appellant

ARMY 20120473

Headquarters, XVIII Airbor ne Corps and Fort Bragg G. Brett Batdorff, Military Judge

Colonel Paul S. Wilso n, Staff Judge Advocate

For Appellant: Colonel Kevin Boyle, JA; Lieu tenant Colonel Jonath an F. Potter, JA; Major Amy E. Nieman, JA; Captain James S. Trieschmann, Jr., JA (on brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L Varley, JA; Major Elisabeth A. Claus, JA; Captain Ti mothy C. Erickson, JA (on brief).

31 July 2014

--------------------------------- SUMMARY DISPOSITION

--------------------------------- Per Curiam:

A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of assault consummated by batt ery, in violation of Article 128, Uniform Code of Military Ju stice, 10 U.S.C. § 928 (2006) [hereina fter UCMJ]. The military judge sentenced appellant to a ba d-conduct discharge, confinement for 120 days, and reduction to the grade of E-1. The conven ing authority approved the sentence and credited appell ant with 246 days of conf inement credit against the

sentence to confinemen t.

This case is before us for review under Article 66, UCMJ. Appellant’s sole assignment of error warrants discussion but no relief. Appellant alleges his sentence is inappropriately seve re because he served more time in pretrial confinement than the maximum authorized peri od of confinement for his so le conviction and because

his conduct was an is olated incident.

1 Judge MORAN took final ac tion on this case whil e on active duty.DIXON —ARMY 20120473

2 BACKGROUND

Appellant’s Misconduct

In the summer of 2011, a woman, CS, spent a night at a ppellant’s home. Appellant and CS had previous ly had a romantic relationsh ip that had ended earlier that summer. The next morning, appellant returned fro m physical training in an angry mood. Appellant and CS began arguing. Eventual ly, CS tried to make a phone call to a friend becaus e she was scared of appellan t. She could not make the call because appellant snatched the phone out of her hand.

During the argument, appe llant punched a hole in the wall, shocking CS. She did not try to fight him back. Appellan t then put his hand s around CS’s neck, squeezed, and choked her. CS suffers from asthma and had trouble br eathing. The two continued to argue. Ap pellant pushed CS and then threw a Gatora de bottle at CS’s face, injuring her. The assault last ed between thirty an d forty-five minutes, during which appellant woul d not let CS leave.

CS testified that she was in pain for three to four da ys after the assault, while the markings on her n eck from the choking remained fo r approximately two months.

She also testified that she became anti-soc ial, defensive, and went months without talking to people. She also became more aggressive toward men, including her family members and had difficulty eating and sleeping and had nightmares. She

testified that some of these effects contin ued up to the sentencing hearing and that she had trouble trusting men anymore.

Appellant’s Pretrial Confinement and Trial

In October 2011, appellant’s comma nder preferred nume rous charges and specifications against appellan t. Appellant, who is HIV- positive, was charged with three specifications of willfully disobeying orders to inform sexual partners about

his HIV status and to use a condom, in violat ion of Article 90. He was also charged with wrongfully using spic e under two th eories: by violati ng a lawful general regulation, in violation of Article 92 and by wrongfully using a Schedule 1 controlled substance, in violation of Artic le 112a. Appellant wa s also charged with five specifications of aggrav ated assault, in violation of Articl e 128, for having

sexual intercourse wh ile HIV-positive. Finally, appe llant was charged with assault consummated by battery for assaulting CS. Except for the assaul t of CS, appellant was either acquitted of the other offens es or the government dismissed those

offenses.DIXON —ARMY 20120473

3 Appellant was in pretrial confinement from 2 Septem ber 2011 until 3 October 2011. He subsequently re-e ntered pretrial confinemen t from 14 October 2011 until

he was sentenced on 15 May 2012. The convening authority cred ited appellant with 246 days of confinemen t credit at action.

At trial, appellant presented evidence of his good military career and that he

was a man who values education and his family. Appellant’s unsworn statement noted, inter alia , his difficult childhood, his burden of being HIV-positive, and his

remorse for his misconduct.

LAW AND DISCUSSION

This court “may affirm only such findings of guilty and the sentence or such part or amount of the sentence , as it finds correct in law and fact and determines, on

the basis of the entire reco rd, should be approved.” UC MJ art. 66(c). Determining sentence appropriaten ess is a function of this co urt's duty to do justice. United States v. Healy , 26 M.J. 394, 395-3 96 (C.M.A. 1988). “Sen tence appropriateness involves the judicial function of assuring that justice is done and that the accused gets the punishment he deserves.” Id. at 395. This is distin guished from clemency

which “involves be stowing mercy.” Id. “Generally, sentence appropriateness should be judged by ‘individ ualized consideration’ of th e particular ac cused ‘on the

basis of the nature an d seriousness of the o ffense and the character of the offender.’” United States v. Snelling , 14 M.J. 267, 268 (C.M.A. 1982).

A threshold issue is whethe r appellant’s sentence is inappropriate in light of appellant’s 246 days of confinement credit, which is longer than the authorized maximum confinement of six months permit ted for assault consummated by battery. See Manual for Courts-Martial, United States (2008 ed.), Part IV, ¶ 54.e.(2). We note “there is no legal requ irement that appellant be gi ven credit for his pretrial

confinement.” United States v. Smith , 56 M.J. 290, 293 (C .A.A.F. 2002). Our superior court has “never held that pretri al confinement which exceeds an adjudged sentence is per se prejudicial.” United States v. Danylo , 73 M.J. 183, 188 (C.A.A.F. 2014) (citing Bell v. Wolfish , 441 U.S. 520, 539 (1979) (holding that, when “reasonably related to a leg itimate governmental objective,” pretrial detentio n is not “punishment”) (internal quotation marks omitted)). Appellant does not on appeal contend that his pretrial confinement vi olated his speedy trial rights or was otherwise illegal or p unitive in nature. See UCMJ arts. 10, 13, 55. However, we will consider this pretrial confinement, as part of the entire record, in determining the appropriateness of appellant’s sentence.

Appellant argues that hi s assault against CS was an isolated incident. Appellant notes the ev idence showin g that he was a good student, desp ite a difficultDIXON —ARMY 20120473

4 childhood. Appellant also notes that he had never previously been subject to

adverse action before as a soldier.

However, an isolated crimin al act is still a criminal act. Appella nt seriously assaulted CS, causing her phys ical, emotional, and psycholo gical injury. The impact and surrounding circum stances of this a ssault on CS were strong aggravation evidence. Additionally, we find legitimat e, non-punitive reas ons for appellant’s pretrial confinement, not least being the reasonable grounds that justified pretrial confinement in the first place. 2 See Rule for Courts-Martial 305(h)(2)(B). In this case, the sentence is appropriate.

CONCLUSION

On consideration of the entire record and the assigned er ror, we find the findings of guilty and the sentence as approved by the c onvening authority correct in law and fact. Accordingly, the findings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

ANTHONY O. POTTINGER Chief Deputy Clerk of Court

2 The military magistra te determined that it was likely that appellant would commit

future serious miscon duct and less seve re forms of restraint were inadequate. ANTHONY O. POTTINGER Chief Deputy Clerk of Court FOR THE COURT: