United States v. Walker

• Court: United States Air Force Court of Criminal Appeals
• Decided: August 21, 2023
• Docket: S32737
• Status: Unpublished

Opinion

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

No. ACM S32737 ________________________

UNITED STATES Appellee v. John L. WALKER Airman First Class (E-3), U.S. Air Force, Appellant ________________________

Appeal from the United States Air Force Trial Judiciary Decided 21 August 2023 ________________________

Military Judge: Shad R. Kidd. Sentence: Sentence adjudged 16 June 2022 by GCM convened at Peter- son Space Force Base, Colorado. Sentence entered by military judge on 18 July 2022: Bad-conduct discharge, confinement for 120 days, and re- duction to E-1. For Appellant: Major Heather M. Caine, USAF. For Appellee: Colonel Naomi P. Dennis, USAF; Lieutenant Colonel G. Matt Osborne, USAF; Major Morgan R. Christie, USAF; Captain Olivia B. Hoff, USAF; Mary Ellen Payne, Esquire. Before RICHARDSON, CADOTTE, and ANNEXSTAD, Appellate Mili- tary Judges. ________________________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ PER CURIAM: At a special court-martial, a military judge convicted Appellant, in accord- ance with his pleas, and pursuant to a plea agreement, of one charge and one specification of reckless operation of a vehicle, and one charge and three spec- ifications of domestic violence in violation of Articles 113 and 128b, Uniform United States v. Walker, No. ACM S32737

Code of Military Justice (UCMJ), 10 U.S.C. §§ 913, 928b.1 The military judge sentenced Appellant to a bad-conduct discharge, confinement for 120 days, and reduction to the grade of E-1. The convening authority took no action on the sentence.

I. BACKGROUND AND DISCUSSION Appellant raises three issues: whether (1) a provision in Appellant’s plea agreement providing that dismissal of certain charges and specifications would only ripen into dismissal with prejudice upon “the guilty findings in accordance with [his] plea being affirmed on final appellate review” is void or otherwise unenforceable; (2) a provision in Appellant’s plea agreement requiring the mil- itary judge to adjudge a bad-conduct discharge violates Appellant’s constitu- tional rights or otherwise is unenforceable; and (3) Appellant is entitled to re- lief because the charge of domestic violence was not referred by the convening authority.2 With respect to issue (1) we find Appellant is not entitled to relief. See, e.g., United States v. Goldsmith, No. ACM 40148, 2023 CCA LEXIS 8, at *15 (A.F. Ct. Crim. App. 11 Jan. 2023) (unpub. op.) (finding plea agreement term—re- quiring the convening authority to dismiss the additional charges and specifi- cations with prejudice “upon completion of appellate review where the findings and sentence have been upheld”—is permissible because it does not violate law or public policy). With respect to issue (2) we find Appellant is not entitled to relief. See, e.g., United States v. Geier, ACM S32679 (f rev), 2022 CCA LEXIS 468, at *13 (A.F. Ct. Crim. App. 2 Aug. 2022) (unpub. op.) (finding “plea agreement provision requiring a military judge or court members to sentence [a]ppellant to a bad- conduct discharge” did not violate the United States Constitution, UCMJ, or public policy). As to issue (3), we have carefully considered Appellant’s contentions and find they do not warrant relief. See United States v. Ballan, 71 M.J. 28, 32 (C.A.A.F. 2012) (finding that a convening authority’s entry into a plea agree- ment was the functional equivalent of a referral order).

1 All references to the UCMJ and the Rules for Courts-Martial are to the Manual for

Courts-Martial, United States (2019 ed.). 2 Issue (3) was raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.

1982).

2 United States v. Walker, No. ACM S32737

II. CONCLUSION The findings and sentence as entered are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Ar- ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find- ings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court