The Terlap sentencing issue

United States v. Campbell, decided by the Coast Guard Court of Criminal Appeals (9/17), presents a current look at United States v. Terlap and proper sentencing evidence. The Appellant “that the military judge admitted improper evidence in aggravation and testimony contradictory to the stipulation of fact.”

During presentencing testimony, the military judge asked BI, “You never moved away or pushed away from the hand; it stopped voluntarily?” (R. at 129.) She answered, “I did push his hand away.” (Id.) During closing argument, defense counsel requested that the military judge not consider that testimony, as it conflicted with the stipulation of fact.

The CGCCA decided that the information did not contradict the stipulation of fact and was, likely, more of the facts and circumstances surrounding the offense to which the appellant pleaded guilty.

Testimony may go beyond the stipulation of fact without consequence, so long as providence is not undermined, unless there is an agreement not to introduce such evidence. See United States v. Terlep, 57 M.J. 344, 348 (C.A.A.F. 2002).

I anticipate this to become a more common issue at sentencing in sexual assault-related cases. It is not uncommon for a negotiated pretrial agreement in sexual assault cases where the accused is willing to plead guilty to assault and battery but not a sexual assault, and where the accused is not willing to sign a stipulation of fact which acknowledges a sexual assault. An assault and battery plea like this is not normally a sex offender registration eligible offense. However, the prosecution then wants to present the full facts and circumstances of the assault to show how aggravated the assault and battery is. The aggravation usually comes up through the victim’s unsworn statement. There is no error here because of Terlep. What the defense needs to do, if possible, during negotiations, is have an agreement not to present that additional information.