The Court of Appeals for the Armed Forces recently released its opinion in the case of United States v. Cole. Airman First Class Cole pled guilty to committing three different assault offenses against a fellow airman. He pled guilty to assault via strangulation on multiple occasions, to simple assault with an unloaded firearm, and to assault consummated by a battery. As part of his plea agreement, the Military Judge was to sentence A1C Cole to between 60 days and 6 months confinement for each of these three offenses. The Military Judge sentenced him to 6 months confinement for each of the first two offenses, and to two months confinement for the third offense.
The focus on appeal was the offense involving an unloaded firearm. A1C Cole held an unloaded 9mm handgun to the fellow airman’s temple during an argument. He had removed the firing pin from the weapon before approaching the other airman with it. For this incident, A1C Cole was charged with simple assault with an unloaded firearm. A simple assault differs from other types of assault because the victim is not actually harmed. To commit this offense, an individual offers or attempts to do bodily harm, but does not actually harm the victim. The essence of this offense is that the victim is put in fear of injury, but is not injured.
At trial, A1C Cole pled guilty to simple assault with an unloaded firearm. However, during the plea inquiry, the Military Judge discussed a different offense with him. The Military Judge seemed to believe that A1C Cole was pleading guilty to aggravated assault with a dangerous weapon. The elements of aggravated assault with a dangerous weapon require that the accused intended to cause bodily harm and used a dangerous weapon. Under the law, a dangerous weapon is a weapon that is used in a manner capable of inflicting death or grievous bodily harm. The Military Judge used these elements and definition even though the firearm used by A1C Cole could not qualify as a dangerous weapon in the way that he used it because it was unloaded and incapable of firing with the firing pin removed.
On appeal, the Air Force Court of Criminal Appeals said that even though the Military Judge applied the wrong law, A1C Cole’s guilty plea was still valid. The Air Force Court also decided that the Military Judge had not considered extra aggravating factors in coming to his sentence for this offense. The Air Force Court affirmed both the findings and sentence.
The defense appealed this decision to the Court of Appeals for the Armed Forces, which disagreed that the sentence was properly decided. The Court found that the Military Judge considered the elements of aggravated assault including the elements of intent to commit bodily harm and use of a dangerous weapon when he was coming to his sentence. Since these elements were not part of the offense to which A1C Cole was charged and was pleading guilty, the Military Judge’s consideration of these factors was improper. The Court of Appeals for the Armed Forces set the sentence aside and returned the case to the Air Force Court of Criminal Appeals to either reassess the sentence or order a rehearing on sentence.
If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.