Phillip K. Lee
Staff Sergeant U.S. Air Force
Convicted Sex Offender
Carnal Knowledge And Sodomy Of A Child
Name: Phillip K.Lee
Case: United States v. Lee No. 99-0002 Crim. App. No. 32773
Date Of Appeal: October 11, 2000
Plea: Not Guilty
Charges: Carnal Knowledge And Sodomy Of A Child et all
Military Branch: U.S. Air Force
Listed In National Sex Offenders Registry? NO
A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of carnal knowledge, sodomy with a child, and committing an indecent act on a female under the age of 16 years, in violation of Articles 120, 125, and 134, Uniform Code of Military Justice, 10 USC §§ 920, 925, and 934, respectively.
The military judge sentenced appellant to a dishonorable discharge, confinement for 18 years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority reduced the confinement to 15 years in accordance with a pretrial agreement but approved the remainder of the sentence as adjudged.
When appellant’s case was first reviewed by the Court of Criminal Appeals, he raised legal issues involving ex post facto punishment under United States v. Gorski, 47 MJ 370 (1997); errors in the staff judge advocate’s recommendation (SJAR); illegal pretrial confinement credit; and propriety of the prosecutor’s sentencing argument.
The court below returned the case to the Judge Advocate General of the Air Force for Gorski relief, set out the confinement credit ordered by the judge, which had been omitted from the action, and affirmed the findings and the approved sentence.
This Court granted appellant’s petition for review and ordered a new SJAR and convening authority’s action. 50 MJ 296 (1999). After the new recommendation and action were completed with no relief being granted, the court below again reviewed the case. On this further review, no new issues were before the court. The court below affirmed the findings and sentence in a short per curiam opinion, noting, "Judge HEAD did not participate in the decision." No reason for Judge Head’s absence is stated or apparent from the record.
Appellant requested the court below to reconsider its decision, alleging that the court erred by affirming his conviction with only two judges participating. The Court of Criminal Appeals sitting en banc (including Judge Head) denied reconsideration by an order, holding that "[t]he panel that decided the appellant’s case was ‘composed’ of three appellate military judges, properly appointed" and that "[a] proper quorum of the panel heard and determined the appellant’s case." The issue now before this Court arises from these last two decisions of the court below.1 For the reasons set out below, we hold that the Court of Criminal Appeals did not err.
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