United States v. Anderson

• Court: United States Air Force Court of Criminal Appeals
• Decided: March 30, 2021
• Docket: S32671
• Status: Unpublished

Opinion

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________

No. ACM S32671 ________________________

UNITED STATES Appellee v. Tristan M. ANDERSON Airman First Class (E-3), U.S. Air Force, Appellant ________________________

Appeal from the United States Air Force Trial Judiciary Decided 30 March 2021 ________________________

Military Judge: Wesley A. Braun. Sentence: Sentence adjudged on 9 September 2020 by SpCM convened at Patrick Air Force Base, Florida. Sentence entered by military judge on 5 October 2020: Bad-conduct discharge, confinement for 104 days, and reduction to E-1. For Appellant: Lieutenant Colonel Lance J. Wood, USAF. For Appellee: Mary Ellen Payne, Esquire. Before MINK, KEY, and ANNEXSTAD, Appellate Military Judges. Judge KEY delivered the opinion of the court, in which Senior Judge MINK joined. Judge ANNEXSTAD filed a separate dissenting opinion. ________________________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ KEY, Judge: A military judge sitting as a special court-martial convicted Appellant, in accordance with his pleas pursuant to a plea agreement, of one specification of fraudulent enlistment and four specifications of wrongfully using controlled United States v. Anderson, No. ACM S32671

substances in violation of Articles 83 and 112a, Uniform Code of Military Jus- tice (UCMJ), 10 U.S.C. §§ 883, 912a. 1 The wrongful-use specifications per- tained to offenses Appellant committed in 2020, but Appellant committed his fraudulent enlistment offense in 2017. The military judge sentenced Appellant to a bad-conduct discharge, confinement for 104 days, and reduction to the grade of E-1. 2 Appellant’s case was submitted to this court for review on its merits with- out any assignments of error. Although not raised by Appellant, we address an error in the post-trial processing of Appellant’s court-martial: whether the con- vening authority failed to take action on the sentence as required by Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), and Article 60, UCMJ, 10 U.S.C. § 860. We conclude he did and that remand to the Chief Trial Judge, Air Force Trial Judiciary, is appropriate. We defer completion of our Article 66(d), UCMJ, review until the record is returned to this court. 10 U.S.C. § 866(d) (Manual for Courts-Martial, United States (2019 ed.) (2019 MCM)).

I. BACKGROUND The specifications in this case were referred on 24 April 2020 and 5 June 2020, and Appellant was tried by a military judge on 9 September 2020. After- wards, Appellant’s trial defense counsel submitted a petition for clemency re- iterating the terms of the plea agreement and requesting the convening au- thority “grant any clemency permissible” to reduce Appellant’s sentence, to in- clude setting aside Appellant’s punitive discharge. After reviewing Appellant’s clemency request and consulting with his staff judge advocate, the convening authority signed a Decision on Action memorandum on 24 September 2020. In the memorandum, the convening authority stated: “I hereby take no action on the findings in this case.” He further wrote, “I hereby take no action on the sentence in this case.” The Decision on Action memorandum also directed Ap- pellant to “take leave pending completion of appellate review” upon release from confinement. The memorandum contained no further indication as to whether any element of the sentence was approved, disapproved, commuted,

1 Unless otherwise noted, references to the Uniform Code of Military Justice and the

Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2016 ed.). 2 Appellant elected to be sentenced under the sentencing rules in effect on 1 January

2019 pursuant to R.C.M. 902A, Manual for Courts-Martial, United States (2019 ed.). The military judge specified separate terms of confinement for each specification, rang- ing from 15 to 104 days. In conformity with the plea agreement, the military judge specified that each term would run concurrently with each other.

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or suspended. On 5 October 2020, the military judge signed an entry of judg- ment, setting out the adjudged sentence. He included the Decision on Action memorandum as an attachment.

II. DISCUSSION Proper completion of post-trial processing is a question of law this court reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004) (citation omitted). Interpretation of a statute and a Rule for Courts- Martial (R.C.M.) are also questions of law we review de novo. United States v. Hunter, 65 M.J. 399, 401 (C.A.A.F. 2008) (citation omitted); United States v. Martinelli, 62 M.J. 52, 56 (C.A.A.F. 2005) (citation omitted). Executive Order 13,825, § 6(b), requires that the version of Article 60, UCMJ, in effect on the date of the earliest offense of which the accused was found guilty, shall apply to the convening authority . . . to the extent that Article 60: (1) requires action by the convening authority on the sentence; . . . or (5) authorizes the convening authority to approve, disapprove, commute, or suspend a sen- tence in whole or in part. See 2018 Amendments to the Manual for Courts-Martial, United States, 83 Fed. Reg. at 9890. The version of Article 60, UCMJ, in effect in 2017—the year in which Appellant’s first offense occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860(c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”). Article 60(c)(2)(B), UCMJ, further stated: “Except as [otherwise] pro- vided . . . the convening authority . . . may approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part.” 10 U.S.C. § 860(c)(2)(B). The convening authority’s action is required to be “clear and un- ambiguous.” United States v. Politte, 63 M.J. 24, 26 (C.A.A.F. 2006) (citation omitted). This court addressed a similar situation in its recent en banc decision in United States v. Aumont, No. ACM 39673, 2020 CCA LEXIS 416 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (unpub. op.). In Aumont, the convening authority signed a memorandum stating that he took “no action” on the findings or sen- tence in a case involving offenses occurring prior to 1 January 2019. Id. at *19. Aumont resulted in four separate opinions, reflecting four distinct positions among the judges on this court as to whether the convening authority’s state-

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ment that he took no action was erroneous and, if so, whether remand for cor- rection was required. Id. (passim). A majority of the judges in Aumont—six of the ten judges—concluded the convening authority erred; four of those six judges, including the majority of the panel in the instant case, found the error required remand for corrective action without testing for prejudice, id. at *89 (J. Johnson, C.J., concurring in part and dissenting in part). We recognize that other panels of this court have applied different reason- ing in cases decided before and after Aumont. See, e.g., United States v. Crus- pero, No. ACM S32595, 2020 CCA LEXIS 427 (A.F. Ct. Crim. App. 24 Nov. 2020) (unpub. op.); United States v. Barrick, No. ACM S32579, 2020 CCA LEXIS 346 (A.F. Ct. Crim. App. 30 Sep. 2020) (unpub. op.); United States v. Finco, No. ACM S32603, 2020 CCA LEXIS 246 (A.F. Ct. Crim. App. 27 Jul. 2020) (unpub. op.); cf. United States v. Coffman, 79 M.J. 820, 824 (A. Ct. Crim. App. 2020) (wherein our sister-service court found the convening authority’s failure to take action was harmless error). Nevertheless, we continue to adhere to the view that—in situations where the convening authority fails to take ac- tion on the sentence as required by Executive Order 13,825 and the pre-1 Jan- uary 2019 version of Article 60, UCMJ—the convening authority has erred. In cases involving a conviction for an offense committed prior to 1 January 2019, the convening authority is required to explicitly state whether the sen- tence is approved. R.C.M. 1107(f)(4)(A) (implementing the version of Article 60, UCMJ, applicable to Appellant’s case). “If only part of the sentence is approved, the action shall state which parts are approved.” Id. In this case, the convening authority did not take action on the entire sentence. He implicitly referenced the adjudged punitive discharge by mentioning appellate leave, but he did not mention the confinement or reduction in grade. The convening authority’s ac- tion was incomplete and ambiguous, and therefore deficient. See Politte, 63 M.J. at 26. The convening authority’s failure to take action on the entire sen- tence fails to satisfy the requirement of the applicable Article 60, UCMJ. See United States v. Lopez, No. ACM S32597, 2020 CCA LEXIS 439, at *11 (A.F. Ct. Crim. App. 8 Dec. 2020) (unpub. op.). Our superior court has mandated that when a Court of Criminal Appeals identifies an ambiguity in an action, it must return the case to the convening authority. Politte, 63 M.J. at 25–26 (applying the earlier versions of Articles 60 and 66, UCMJ, 10 U.S.C. §§ 860, 866 (2000), reasoning which we find applica- ble here). In requiring the deficient action to be returned to the convening au- thority, our superior court did not evaluate the deficiency for prejudice; the deficiency in the action ipso facto required its return. Id.; see also United States v. Scott, 49 M.J. 160, 160 (C.A.A.F. 1998). For the reasons set forth in the dis- senting opinion in Aumont, we remand the record to the Chief Trial Judge, Air Force Trial Judiciary, to resolve the error. Unpub. op. at *89 (J. Johnson, C.J.,

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concurring in part and dissenting in part); see Article 66(f)(3), UCMJ, 10 U.S.C. § 866(f)(3) (2019 MCM).

III. CONCLUSION This case is REMANDED to the Chief Trial Judge, Air Force Trial Judici- ary, to resolve a substantial issue with the convening authority’s decision mem- orandum, as the action taken on Appellant’s adjudged sentence was ambiguous and incomplete. Our remand returns jurisdiction over the case to a detailed military judge and dismisses this appellate proceeding consistent with Rule 29(b)(2) of the Joint Rules for Appellate Procedure for Courts of Criminal Appeals. JT. CT. CRIM. APP. R. 29(b)(2). A detailed military judge may: (1) Return the record of trial to the convening authority or his successor to take action on the sentence; (2) Conduct one or more Article 66(f)(3), UCMJ (2019 MCM), proceedings using the procedural rules for post-trial Article 39(a), UCMJ, 10 U.S.C. § 839, sessions; and/or (3) Correct or modify the entry of judgment. Thereafter, the record of trial will be returned to the court for completion of appellate review under Article 66, UCMJ.

ANNEXSTAD, Judge (dissenting): I respectfully disagree with my colleagues’ conclusion remanding this case to the Chief Trial Judge, Air Force Trial Judiciary, because the convening au- thority’s action was ambiguous and incomplete. Consistent with our court’s de- cision in United States v. Barrick, No. ACM S32579, 2020 CCA LEXIS 346, at *3 (A.F. Ct. Crim. App. 30 Sep. 2020) (unpub. op.), I would find the convening authority’s decision to “take no action on the sentence” was the equivalent of action. In coming to this conclusion, I note, as our court did in Barrick, that: Air Force Instruction 51-201, Administration of Military Justice, Section 13D (18 Jan. 2019), correctly advises convening author- ities to grant relief as circumscribed by the applicable version of Article 60, UCMJ[, 10 U.S.C. § 860]. Additionally, it advises convening authorities to specify “no action” if not granting relief, which would include effecting “action” under the applicable ver- sion of Article 60, UCMJ. Id. at *3–4.

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I also recognize that we can use surrounding documentation to interpret an otherwise unclear convening authority action, including looking outside the four corners of the action’s language. See United States v. Politte, 63 M.J. 24, 26 (C.A.A.F. 2006) (citing United States v. Loft, 10 M.J. 262, 268 (C.M.A. 1981)). In this case, the record demonstrates that Appellant submitted clemency matters to the convening authority on 18 September 2020. In his matters, Ap- pellant asked the convening authority to “grant any clemency permissible” to reduce the sentence, to include setting aside his punitive discharge. On 24 Sep- tember 2020, the convening authority’s decision to “take no action” on the find- ings and sentence was memorialized in his Decision on Action memorandum to the military judge. Consistent with Section 13D of Air Force Instruction (AFI) 51-201, Administration of Military Justice, the convening authority ex- pressed his decision to not grant relief as “no action.” See AFI 51-201, ¶ 13.23 (18 Jan. 2019). Additionally, the convening authority directed Appellant to “take leave” pending completion of appellate review upon release from confine- ment. On 5 October 2020, the military judge signed the entry of judgment (EoJ), reflecting the sentence as adjudged. The convening authority’s Decision on Action memorandum was attached to the EoJ. I would find that the convening authority’s decision met the legacy require- ments of Article 60, UCMJ, 10 U.S.C. § 860 (Manual for Courts-Martial, United States (2016 ed.)), requiring the convening authority to effectuate the sentence. I would also find the decision complied with the provisions of Rule for Courts- Martial (R.C.M.) 1109 of the Manual for Courts-Martial, United States (2019 ed.) (2019 MCM), requiring convening authority action only when affecting the sentence. In this case, the convening authority’s decision to provide no relief at action was a “clear and unambiguous” determination to effectuate the ad- judged sentence without modification. See Politte, 63 M.J. at 25−26 (footnote omitted). There is no indication in the record that the military judge or the parties were confused as to the convening authority’s decision to grant no re- lief. The sentence memorialized in the EoJ was the same as the sentence ad- judged at trial, and neither party moved for correction of the Decision on Action or the EoJ. See R.C.M. 1104(b)(2)(B), (C) (2019 MCM). For these reasons, I would find no error in the convening authority’s action and would not delay

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our review under Article 66(d), UCMJ, 10 U.S.C. § 866(d) (2019 MCM), by re- manding the case to the Chief Trial Judge, Air Force Trial Judiciary.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court