United States v. Taylor

• Court: United States Air Force Court of Criminal Appeals
• Decided: May 13, 2021
• Docket: 39978
• Status: Unpublished

Opinion

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

No. ACM 39978 ________________________

UNITED STATES Appellee v. Drake E. TAYLOR Captain (O-3), U.S. Air Force, Appellant ________________________

Appeal from the United States Air Force Trial Judiciary Decided 13 May 2021 ________________________

Military Judge: Mark W. Milam. Sentence: Sentence adjudged on 23 June 2020 by GCM convened at Avi- ano Air Base, Italy. Sentence entered by military judge on 15 September 2020: Dismissal, confinement for 60 days, forfeiture of $1,500.00 pay per month for 3 months, and a reprimand. For Appellant: None. 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This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4.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 general court-martial convicted Appellant, in accordance with his pleas pursuant to a plea agreement, of five specifications of conduct unbecoming an officer in violation of Article 133, UCMJ, 10 U.S.C. § 933, and two specifications of fraternization and three specifications of adul- tery in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 United States v. Taylor, No. ACM 39978

U.S.C. § 934. 1,2 The specifications Appellant was convicted of were committed in 2017 and 2018; however, one specification which was dismissed after ar- raignment alleged an offense committed in 2019. The military judge sentenced Appellant to a dismissal, confinement for 60 days, forfeiture of $1,500.00 pay per month for three months, and a reprimand. 3 Appellant’s case is before this court for review without 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 convening 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 required. We defer completion of our Article 66, 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)). In our initial review of this case, we identified several other potential errors with respect to matters contained in the record of trial which may warrant consideration prior to returning the record to this court. We set out those mat- ters below.

I. BACKGROUND The specifications in this case were referred to a general court-martial on 9 March 2020. Prior to trial, Appellant and the convening authority entered into a plea agreement which limited Appellant’s maximum confinement sen- tence to 120 days with all terms of confinement being served concurrently; set

1 Unless otherwise noted, references to the Uniform Code of Military Justice (UCMJ)

and the Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2016 ed.). 2 Pursuant to the terms of the plea agreement, after Appellant had been arraigned, the

convening authority withdrew and dismissed with prejudice one charge and its speci- fication of making a false official statement in violation of Article 107, UCMJ, 10 U.S.C. § 907, and one specification of conduct unbecoming an officer in violation of Article 133, UCMJ, 10 U.S.C. § 933. 3 By virtue of being charged with offenses committed both before and after 1 January

2019, Appellant had the option—which he exercised—to be sentenced under the sen- tencing rules in effect on 1 January 2019 pursuant to R.C.M. 902A, Manual for Courts- Martial, United States (2019 ed.). The military judge sentenced Appellant to separate terms of confinement for each specification, ranging from no confinement to 60 days. In conformity with the plea agreement, the military judge specified the terms would run concurrently.

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the minimum monthly forfeitures at $1,000.00 per month; and set the maxi- mum monthly forfeitures at $2,500.00 per month. Appellant thereafter pleaded guilty and was sentenced by the military judge on 23 June 2020. On this same day, Appellant signed an Air Force Form 304, Request for Appellate Defense Counsel, checking the box which reads: “I do not request Appellate Defense Counsel to represent me.” On 1 July 2020, Appellant submitted a written request to the convening authority asking that his sentence to confinement be deferred until the entry of judgment. He also requested that his automatic forfeitures be similarly de- ferred. Finally, he asked that—should his request for deferral of the automatic forfeitures be denied—those automatic forfeitures be waived for the benefit of his dependent. On 1 August 2020, Appellant submitted a petition for clemency to the convening authority, but this petition did not request any specific relief. After reviewing Appellant’s clemency request and consulting with his staff judge advocate, the convening authority signed a Decision on Action memoran- dum on 25 August 2020, likely after Appellant had been released from confine- ment. In the memorandum, the convening authority stated: “I take no action on the findings in this case.” He further wrote, “I take no action on the sentence in this case.” The Decision on Action set out the wording for Appellant’s repri- mand and noted Appellant “will be required . . . to take leave pending comple- tion of appellate review” upon release from confinement. The Decision on Action memorandum also addressed Appellant’s defer- ment and waiver requests. Without providing any rationale for his decision, the convening authority wrote, “I hereby deny the request for deferment of the confinement.” The convening authority then incorrectly asserted Appellant had requested “deferment of all of the adjudged and automatic forfeitures until the entry of judgment.” As noted above, however, Appellant had only requested deferment of the automatic forfeitures. Following this statement, the conven- ing authority wrote: “I hereby defer $1,060.00 pay per month of the automatic forfeitures and all of the automatic forfeitures from 14 days from the date the sentence was adjudged until [Appellant] is released from confinement.” 4 (Em- phasis added). Finally, the convening authority stated he had denied Appel- lant’s request for waiver of the automatic forfeitures. The convening authority’s memorandum contained no indication as to whether Appellant’s sentence to confinement was approved, disapproved, com- muted, or suspended. On 15 September 2020, the military judge signed the

4 In his request, Appellant explained he was paying 900 Euros per month in child sup-

port, roughly equivalent to $1,060.00 at the time.

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entry of judgment setting out the adjudged sentence and the convening author- ity’s decisions—verbatim—respecting Appellant’s deferment and waiver re- quests. The military judge included the Decision on Action memorandum as an attachment. This case was docketed with this court on 4 November 2020, without an appellate defense counsel assigned. On 14 January 2021, this court sent a cer- tified letter to Appellant advising him that his case was docketed with this court and informing him that he had 60 days to file a brief assigning any error pursuant to Rule 18(d) of the Joint Rules of Procedure for Courts of Criminal Appeals. JT. CT. CRIM. APP. R. 18(d). Appellant submitted no response. No ap- pellate attorney has entered an appearance before this court on behalf of either Appellant or the Government.

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 and 2018— the years in which Appellant’s offenses occurred—stated “[a]ction on the sen- tence 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.

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§ 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 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.), rev. granted, 2021 CAAF LEXIS 389 (C.A.A.F. 2021). In Aumont, the convening authority signed a memorandum stating that he took “no action” on the findings or sentence 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 statement that he took no action was erroneous and, if so, whether remand for correction was required. Id. (pas- sim). 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 set out the terms of Appellant’s reprimand, discussed Appellant’s waiver and deferment requests, and implicitly referenced the adjudged dismissal by mentioning appellate leave, but he did not state whether Appellant’s confinement, forfeitures, or dis- missal were actually approved. Moreover, the convening authority’s Decision on Action memorandum refers to a request for deferment of adjudged forfei-

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tures—a request Appellant never made—as well as the irreconcilable state- ment that he was deferring both “$1,060.00 pay per month of the automatic forfeitures and all of the automatic forfeitures.” The convening authority did not take complete and unambiguous action, and therefore his decision regard- ing Appellant’s sentence is deficient. See Politte, 63 M.J. at 26. The convening authority’s failure to take action on the entire sentence fails to satisfy the re- quirement 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, reasoning which we find applicable here). In requiring the deficient action to be returned to the convening authority, 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 dissenting opin- ion 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., concurring in part and dissenting in part); see Article 66(f)(3), UCMJ, 10 U.S.C. § 866(f)(3) (2019 MCM). We also take this opportunity to highlight other matters regarding the rec- ord of trial we observed in our review. First, Prosecution Exhibit 1—the stipu- lation of fact in this case—references documents purportedly attached to it. The stipulation included in the record of trial filed with this court, however, has no attachments. Second, the record includes a memorandum from Appel- lant’s trial defense counsel titled, “Request for Deferment of Adjudged Confine- ment, and Automatic Forfeitures, IAW RCM 1103(b) and Article 57, UCMJ; Request for Wavier of Automatic Forfeitures IAW RCM 1103(h) and Article 58b – United States v. Capt Drake E. Taylor.” This document also indicates it has matters attached to it, yet no such attachments are found in the record. Third, the record includes six digital video discs (DVDs) which appear to in- clude such matters as trial counsel’s opening-statement slides, 5 a short video taken with a cellular phone, as well as written reports and audio recordings from preliminary hearings carried out pursuant to Article 32, UCMJ, 10 U.S.C. § 832. Each of these DVDs contains a variety of identifying markings on them; most concerning is that each DVD is marked “SECRET.” For example, the DVD

5 Although this court-martial did not involve contested findings, the military judge

permitted the parties to make opening statements.

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of the opening-statement slides has the following annotations written in black ink on the disc: *FOUO* Appellate Exhibit IV GCM/U.S. v. Taylor/Aviano 22 Jun 20/Disc 1 of 1 SECRET *FOUO* Each of the discs carries a version of the above annotations, but nothing in the record gives any indication that the DVDs contain classified material or that any classified information was at issue in either Appellant’s court-martial or its related proceedings. Fourth, while Appellant declined appellate represen- tation on the day he was sentenced, there is no indication in the record Appel- lant executed a waiver of appellate representation after the convening author- ity’s decision on action in the case pursuant to United States v. Xu, 70 M.J. 140 (C.A.A.F. 2011) (mem.); United States v. Smith, 34 M.J. 247, 249 (C.M.A. 1993); or consistent with the guidance in Air Force Instruction 51-201, Administra- tion of Military Justice, ¶ 14.5.2 (18 Jan. 2019).

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 (2019 MCM).

ANNEXSTAD, Judge (dissenting):

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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 [(AFI)] 51-201, Administration of Military Justice, Section 13D (18 Jan. 2019), correctly advises convening authorities to grant relief as circumscribed by the applicable ver- sion of Article 60, UCMJ[, 10 U.S.C. § 860]. Additionally, it ad- vises convening authorities to specify “no action” if not granting relief, which would include effecting “action” under the applica- ble version of Article 60, UCMJ. Id. at *3–4. 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 1 August 2020, but did not ask for any specific relief. On 25 August 2020, the convening authority’s memorialized his decision to “take no action” on the findings and sentence in his Decision on Action memorandum to the military judge. Consistent with Section 13D of AFI 51-201, the convening authority expressed 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 confinement, an action only necessary when a con- vening authority cannot or chooses not to disturb an adjudged punitive dis- charge. Moreover, the convening authority specifically denied Appellant’s re- quest to defer confinement, granted Appellant’s request to defer $1060.00 pay per month of the automatic forfeitures from 14 days from the date the sentence was adjudged until Appellant was released from confinement, denied Appel- lant’s request to waive the automatic forfeitures, and included the language for the Appellant’s reprimand. On 15 September 2020, the military judge signed the entry of judgment (EoJ), reflecting the sentence as adjudged and noting the Appellant’s approved deferment request. The convening authority’s Decision on Action memorandum was attached to the EoJ.

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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, with the exception of Appellant’s approved deferment request, and neither party moved for correction of the Decision on Action memorandum 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 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