(concurring in part and in the result).
I concur with the majority opinion in its analysis and conclusions as to maximum punishment and post-trial/appellate delay. As to the invalid prior conviction, I concur in the result and part of the analysis. However, I must respectfully disagree with other parts of the analysis.
The majority opinion properly emphasizes the fact that the defense used the now-invalid prior conviction as an integral part of its strategy in the presentencing hearing. Although the defense objected to the admission of the providence inquiry from the prior court-martial, the defense later offered evidence that tacitly admitted, at least in general terms, the sexual misconduct described in the providence inquiry. For me, this unusual fact is a critical case-specific matter to consider in deciding that any error committed by the military judge was harmless beyond a reasonable doubt.
I view Rule for Courts-Martial 1001(b)(4), Manual for Courts-Martial, United States (2002 ed.), as providing the only legally sound theory of admissibility for the facts underlying the prior conviction. As the majority opinion states, several cases from our superior court have taken a relatively expansive interpretation of the “directly related to or resulting from” language in that rule. The case that comes closest to the instant scenario is United States v. Mullens, 29 M.J. 398 (C.M.A.1990). That case addressed the admission of uncharged misconduct involving child-victims that were the subject of the charged offenses. In affirming the sentence adjudged by members, the court observed:
Clearly, the uncharged misconduct delineated in this stipulation was directly related to the conduct for which appellant was found guilty. The stipulation evidenced a continuous course of conduct involving the same or similar crimes, the same victims, and a similar situs within the military community, i.e., the servicemember’s home. These incidents demonstrate not only the depth of appellant’s sexual problems, but also the true impact of the charged offenses on the members of his family. These were appropriate sentence considerations under the above Manual rule.
Mullens, 29 M.J. at 400 (internal citations omitted). As in Mullens, important considerations in this sentence included the depth of the appellant’s sexual problems and the impact of the appellant’s sexual misconduct upon the members of his family.
I cannot join the analysis and conclusions regarding the interplay between Military Rule of Evidence 414, Manual for Courts-Martial, United States (2002 ed.) and R.C.M. 1001. Our superior court has clearly held that R.C.M. 1001 comprises the only gate through which presenteneing evidence may enter the courtroom. United States v. Wingart, 27 M.J. 128, 135-36 (C.M.A.1988). Thus, R.C.M. 1001 may fairly be read to confer greater due process rights upon the military defendant than he might find in civilian criminal courts. If Congress or the President choose to change the rules by applying Mil. R. Evid. 414 to presenteneing evidence, so be it. But this court cannot and should not attempt to do so. The fact that presenteneing hearings in civilian cases in state and federal court feature more expansive rules is not an appropriate consideration in our analysis. See Wingart, 27 M.J. at 136.