U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39825 (rem)
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UNITED STATES
Appellee
v.
Sean W. HARRINGTON
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
On Remand from
the United States Court of Appeals for the Armed Forces
Decided 3 May 2024
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Military Judge: Christopher M. Schumann.
Sentence: Sentence adjudged 1 July 2019 by GCM convened at Cannon
Air Force Base, New Mexico. Sentence entered by military judge on
30 July 2019: Dishonorable discharge, confinement for 14 years, and re-
duction to E-1.
For Appellant: Major Matthew L. Blyth, USAF; Major M. Dedra Camp-
bell, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major
Vanessa Bairos, USAF; Major Zachary T. West, USAF; Mary Ellen
Payne, Esquire.
Before RICHARDSON, CADOTTE, and DOUGLAS, Appellate Military
Judges.
Senior Judge CADOTTE delivered the opinion of the court, in which
Judge DOUGLAS joined. Senior Judge RICHARDSON filed a separate
concurring opinion.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Harrington, No. ACM 39825 (rem)
CADOTTE, Senior Judge:
Contrary to Appellant’s pleas, a general court-martial composed of officer
members convicted Appellant of one specification of involuntary manslaughter
and one specification of communicating a threat in violation of Articles 119 and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 919, 934, Manual
for Courts-Martial, United States (2016 ed.) (2016 MCM).* Also, Appellant was
found guilty, consistent with his pleas, of one specification of divers use of co-
caine and one specification of divers use of marijuana, both in violation of Ar-
ticle 112a, UCMJ, 10 U.S.C. § 912a, Manual for Courts-Martial, United States
(2012 ed.). Appellant was sentenced to a dishonorable discharge, confinement
for 14 years, and reduction to the grade of E-1.
After this court affirmed the findings and sentence, United States v. Har-
rington, No. ACM 39825, 2021 CCA LEXIS 524 (A.F. Ct. Crim. App. 14 Oct.
2021) (unpub. op.), the United States Court of Appeals for the Armed Forces
(CAAF) granted Appellant’s petition for review of three issues. United States
v. Harrington, 82 M.J. 267 (C.A.A.F. 2022) (order). Ultimately, the CAAF found
in Appellant’s favor on two of those issues: (1) “whether the military judge
abused his discretion by denying Appellant’s request to instruct the panel
members on the maximum punishment available for each of Appellant’s of-
fenses of conviction,” and (2) “whether the military judge abused his discretion
in allowing the Government trial counsel to participate in the delivery of the
unsworn statement of the homicide victim’s parents.” United States v. Harring-
ton, 83 M.J. 408, 412 (C.A.A.F. 2023). The CAAF affirmed the findings but re-
versed the sentence, returning the case to The Judge Advocate General for re-
mand to this court to “either reassess the sentence based on the affirmed find-
ings or order a sentence rehearing.” Id. at 423.
On remand, Appellant urges this court to order a rehearing on sentence. In
contrast, the Government states the court “can conduct a sentence reassess-
ment and reassess the sentence to the same [ ] sentence adjudged at trial” and
requests we “reassess Appellant’s sentence, and affirm the reassessed 14-year
term of confinement.”
I. LAW AND ANALYSIS
Under Article 59(a), UCMJ, 10 U.S.C. § 859(a), a court-martial sentence
may not be held incorrect by virtue of legal error “unless the error materially
* All charged offenses in this case occurred prior to 1 January 2019, and were preferred
and referred to court-martial after that date. Unless otherwise noted, all references in
this opinion to the non-punitive articles of the Uniform Code of Military Justice
(UCMJ) and Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial,
United States (2019 ed.).
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United States v. Harrington, No. ACM 39825 (rem)
prejudices the substantial rights of the accused.” If we can conclude that absent
any error, an adjudged sentence would have been at least a certain severity,
“then a sentence of that severity or less will be free of the prejudicial effects of
error; and the demands of Article 59(a)[, UCMJ,] will be met.” United States v.
Sales, 22 M.J. 305, 308 (C.M.A. 1986).
We have broad discretion first to decide whether to reassess a sentence,
and then to arrive at a reassessed sentence. United States v. Winckelmann, 73
M.J. 11, 12 (C.A.A.F. 2013). In deciding whether to reassess a sentence or re-
turn a case for a rehearing, we consider the totality of the circumstances, and
the following illustrative factors announced in Winckelmann: (1) “Dramatic
changes in the penalty landscape and exposure;” (2) “Whether an appellant
chose sentencing by members or a military judge alone;” (3) “Whether the na-
ture of the remaining offenses capture[s] the gravamen of criminal conduct in-
cluded within the original offenses and . . . whether significant or aggravating
circumstances addressed at the court-martial remain admissible and relevant
to the remaining offenses;” and (4) “Whether the remaining offenses are of the
type that judges of the [C]ourts of [C]riminal [A]ppeals should have the expe-
rience and familiarity with to reliably determine what sentence would have
been imposed at trial.” Id. at 15–16 (citations omitted).
We may reassess a sentence only if we are able to reliably determine that,
absent the error, the sentence would have been “at least of a certain magni-
tude.” United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000) (citation omitted).
Having considered the totality of the circumstances, including the Winckel-
mann factors, we are not convinced that we can reliably make such a determi-
nation. In view of the CAAF’s conclusions that the military judge misappre-
hended the law and allowed erroneous presentation of victim matters, “the only
fair course of action is to have [Appellant] resentenced at the trial level.” Id.
(quoting United States v. Peoples, 29 M.J. 426, 429 (C.M.A. 1990)).
II. CONCLUSION
The record is returned to The Judge Advocate General for further proceed-
ings consistent with this opinion. A rehearing is authorized. Article 66(f)(2),
UCMJ, 10 U.S.C. § 866(f)(2). Thereafter, the record will be returned to the
court to complete appellate review under Article 66(d), UCMJ.
RICHARDSON, Senior Judge (concurring):
I concur that we should order a rehearing and not reassess Appellant’s sen-
tence in this case. I write separately to discuss important aspects of this case
as they relate to the non-exhaustive factors announced in United States v.
Winckelmann, 73 M.J. 11, 15–16 (C.A.A.F. 2013), and to expand upon those
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United States v. Harrington, No. ACM 39825 (rem)
factors when determining whether to reassess a sentence in light of the analy-
sis and conclusions of the United States Court of Appeals for the Armed Forces
(CAAF) regarding prejudice in United States v. Harrington, 83 M.J. 408
(C.A.A.F. 2023).
I. BACKGROUND
As to the defense-requested instruction on the maximum punishment, the
CAAF concluded “[Rule for Courts-Martial] 1005(e)(1)’s requirement that a
military judge must instruct the panel members on the maximum cumulative
sentence in no way prohibits an additional instruction on the maximum pun-
ishment for each offense of conviction” and “neither the practice of general uni-
tary sentencing nor the Rules for Courts-Martial foreclosed the military judge
from instructing the panel on the maximum punishment for each offense of
conviction.” Harrington, 83 M.J. at 415–18. The CAAF held “[t]he military
judge therefore abused his discretion by declining Appellant’s requested in-
struction based on an erroneous view of the law,” adding in a footnote:
To be clear, nothing in this opinion should be interpreted as re-
quiring a military judge to instruct the members on the maxi-
mum sentence for each offense should the accused request such
an instruction. We only hold that the military judge abused his
discretion because of his misbelief that such an instruction was
foreclosed as a matter of law. Because the military judge abused
his discretion in this manner, we need not—and do not—express
a view on what the outcome would have been here of applying
the three-part test from [United States v. Carruthers, 64 M.J.
340, 346 (C.A.A.F. 2007)].[1]
Id. at 418, n.10.
Regarding prejudice resulting from the military judge’s erroneous view of
the law, the CAAF found that
by denying Appellant’s requested instruction, the military judge
deprived Appellant of a powerful argument: that the President
had deemed even the worst involuntary manslaughters to war-
rant no more than ten years of confinement. Given the focus
1 The test in Carruthers for whether the failure to give a requested instruction is error
is (1) whether the requested instruction is correct; (2) whether it is not substantially
covered in the other instructions; and (3) whether “it is on such a vital point in the case
that the failure to give it deprived [the accused] of a defense or seriously impaired its
effective presentation.” United States v. Carruthers, 64 M.J. 340, 346 (C.A.A.F. 2007)
(alteration in original) (citation omitted).
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United States v. Harrington, No. ACM 39825 (rem)
placed on the involuntary manslaughter conviction by the Gov-
ernment during sentencing and under the specific facts of this
case, we cannot be confident that the military judge’s denial of
the requested instruction did not substantially influence the ad-
judged sentence.
Id. at 422.
As to the delivery of the unsworn statements, the CAAF concluded:
“Presentation of the victim’s unsworn statement via a question-and-answer
format with trial counsel violates the Rules for Courts-Martial because it con-
travenes the principle that an unsworn victim statement belongs solely to the
victim or the victim’s designee.” Id. at 418 (citation omitted). The CAAF held
“that the military judge abused his discretion by permitting trial counsel and
the victim’s parents to present the unsworn victim statements in this [ques-
tion-and-answer] format.” Id. at 420–21 (footnote omitted). Additionally, the
CAAF found “[i]n this case, the military judge not only erred by allowing trial
counsel and the victim’s parents to present their unsworn victim statements
in a question-and-answer format, but he also permitted those statements to be
given from the witness stand.” Id. at 423.2
The CAAF concluded that, “given the presence of two separate errors dur-
ing sentencing, . . . the Government failed to meet its burden of demonstrating
that the cumulative errors did not have a substantial influence on the adjudged
sentence.” Id. at 421. Accordingly, the CAAF affirmed the findings, but our
decision was reversed with respect to the sentence. Id. at 423. The CAAF re-
turned the record to The Judge Advocate General of the Air Force for remand
to this court. Id. The remand stated that this court may “either reassess the
sentence based on the affirmed findings or order a sentence rehearing.” Id.
2 The military judge provided this summary of his conversation with counsel under
R.C.M. 802 regarding presentation of the anticipated unsworn statements:
I did inform the parties if they wish to do so in a [question-and-answer]
format because they indicated a desire to do a [question-and-answer]
format unsworn for both the victim impact witnesses as well as the
accused, I told them that they would be permitted under the circum-
stances to have their respective witnesses sit in the actual witness
chair, even though they are not providing sworn testimony. But I would
make that exception in this case if they chose to go that route.
Neither party objected to unsworn statements being delivered from the witness stand.
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United States v. Harrington, No. ACM 39825 (rem)
II. ANALYSIS
The first and second Winckelmann factors squarely apply in this case.
Winckelmann, 73 M.J. at 15–16. The third and fourth Winckelmann factors do
not apply inasmuch as the findings were affirmed.3 Part of the third factor can
be applied: “whether significant or aggravating circumstances addressed at the
court-martial remain admissible and relevant to the remaining offenses.” Id.
at 16. Whether to reassess a sentence is “based on the totality of the circum-
stances presented,” and is not limited to the four factors articulated in Winck-
elmann. Id. at 15 (citation omitted). As such, in addition to the Winckelmann
factors, we should apply an additional factor as part of the circumstances pre-
sented in this case: the CAAF concluded “that the Government failed to meet
its burden of demonstrating that the cumulative errors did not have a substan-
tial influence on the adjudged sentence.” Harrington, 83 M.J. at 423.
Applying the Winckelmann factors to the instruction issue, I first consider
the CAAF’s analysis of prejudice, specifically that Appellant was “deprived of
a powerful argument” when the military judge failed to tell the members that
the maximum punishment for involuntary manslaughter was only ten years.
Assuming the military judge would have given the defense-requested instruc-
tion if he correctly understood the law, the penalty landscape may have
changed. The members would have known that while the maximum term of
confinement they could impose for all offenses was 20 years, only 10 years
would be authorized if Appellant was convicted only of involuntary manslaugh-
ter, and similarly 5 years for divers use of cocaine, 3 years for communicating
a threat, and 2 years for divers use of marijuana.
Perhaps the penalty landscape may not have changed at all. The military
judge in this case likely would not have given the defense-requested instruction
even if he believed he could. The military judge was concerned the members
might “give more weight to one offense over another offense or less weight to
one offense over another offense simply based on a maximum punishment the-
ory.” Tellingly, the military judge stated he was “loath[ ] to give [the members]
any kind of direction that interferes with their ability, their independent abil-
ity, to decide an appropriate sentence in this case based on their interpretation
of the evidence, matters in aggravation and the matters in mitigation, as long
as that sentence falls underneath the maximum punishment.” Indeed, a mili-
tary judge instructing the members what the President determined was the
maximum punishment for each individual offense could unduly influence the
3 As to the fourth factor, while we have “experience and familiarity” with the offenses
to allow us reliably to determine what sentence would have been imposed at trial for
any “remaining offenses,” our task here arguably is more difficult: to determine what
sentence would have been imposed but for the errors. Winckelmann, 73 M.J. at 16.
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United States v. Harrington, No. ACM 39825 (rem)
members to sentence Appellant to less—or perhaps more—time in confinement
than they believe is warranted for all the offenses of which he was convicted.
Moreover, if the military judge had given the instruction, he would have care-
fully crafted and given additional instructions to assuage his concerns that the
defense-requested instruction would lead to the members’ confusion or misap-
plication of the law. Finally, he could have prohibited trial defense counsel
from making an argument to the members that contravened their independent
duty to determine an appropriate sentence in Appellant’s case, hindering Ap-
pellant’s ability to make as powerful an argument.
Applying the Winckelmann factors to the victim-statement issue, I again
consider the CAAF’s analysis of prejudice. The CAAF concluded the “the pri-
mary problem[ was] that trial counsel’s participation in the presentation of the
unsworn victim statement blurred the important distinction between sentenc-
ing evidence presented by the Government and nonevidentiary sentencing
matters presented by the victim” and the question-and-answer format from the
witness stand “mimicked the presentation of actual sworn testimony that the
panel members would have experienced during the rest of the trial, raising the
potential for confusion among the members about the status of the state-
ments.” Harrington, 83 M.J. at 423. The CAAF made this conclusion even
though the military judge gave the members an instruction that the victim
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United States v. Harrington, No. ACM 39825 (rem)
statements were unsworn, and did not solicit questions from them to the vic-
tims.4,5 The CAAF did not state whether it found prejudice from this error—
finding it “might not have prejudiced Appellant on its own”—but concluded the
Government failed to demonstrate the two sentencing errors combined “did not
have a substantial influence on the adjudged sentence.” Id.
The substance of the victim statements at issue was not found to be erro-
neous, only their presentation. The members may have given that substance
more significance because of the question-and-answer format from the witness
stand. But they also were charged with instructions that they each determine
the weight and significance to give to the statements, and may consider that
the statements were not under oath. Ultimately, it appears the substance
would have been just as admissible and relevant without the erroneous presen-
tation.
A Court of Criminal Appeals may reassess a sentence only if it is able to
reliably determine that, absent the error, the sentence would have been “at
least of a certain magnitude.” United States v. Harris, 53 M.J. 86, 88 (C.A.A.F.
2000) (citation omitted). Having applied the Winckelmann factors and consid-
ering the CAAF’s conclusions regarding prejudice discussed supra, I am not
convinced that we can reliably make such a determination in this case. I agree
with the majority that in view of the CAAF’s conclusions that the military
4 Before the victim unsworn statements at issue were presented, the military judge
gave the members the following instruction:
Members of the Court, at this time you will hear some unsworn state-
ments from individuals that are identified as victims of the crime. I
want to read you a brief instruction though as to how you can consider
these particular statements. An unsworn statement is an authorized
means for a victim to bring information to the attention of the court
and must be given appropriate consideration. The victim cannot be
cross-examined by the Prosecution or Defense or interrogated by court
members, or me, upon an unsworn statement but the parties may offer
evidence to rebut statements of fact contained in it. The weight and
significance to be attached to an unsworn statement rests within the
sound discretion of each court member. You may consider that the
statement is not under oath, its inherent probability or improbability,
whether it is supported or contradicted by evidence in the case, as well
as any other matter that may have a bearing upon its credibility. In
weighing an unsworn statement, you are expected to use your common
sense and your knowledge of human nature and the ways of the world.
5 Appellant presented an unsworn statement to the members in question-and-answer
format—presumably from the witness stand—and the military judge provided the
members an instruction substantially similar to the victim-unsworn-statement in-
struction.
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United States v. Harrington, No. ACM 39825 (rem)
judge misapprehended the law and allowed erroneous presentation of victim
matters, “the only fair course of action is to have [Appellant] resentenced at
the trial level.” Id. (quoting United States v. Peoples, 29 M.J. 426, 429 (C.M.A.
1990)).
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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