United States v. Jones

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM 39950 ________________________ UNITED STATES Appellee v. Dejuan A. JONES Airman First Class (E-3), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Decided 3 November 2021 ________________________ Military Judge: Thomas J. Alford.

Sentence: Sentence adjudged on 27 May 2020 by GCM convened at Minot Air Force Base, North Dakota. Sentence entered by military judge on 26 June 2020: Bad-conduct discharge, confinement for 20 months, forfei- ture of all pay and allowances, reduction to the grade of E-1, and a rep- rimand.

For Appellant: Captain David L. Bosner, USAF.

For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Captain Cortland T. Bobczynski, USAF; Mary Ellen Payne, Esquire.

Before KEY, RICHARDSON, and MERRIAM, Appellate Military 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 ________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4.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: A general court-martial composed of a military judge alone found Appellant guilty, in accordance with his pleas and a pretrial agreement (PTA), of one specification of possession of child pornography on divers occasions, in violation United States v. Jones, No. ACM 39950

of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934.1 The offenses were committed between March and December 2018. The military judge sentenced Appellant to a bad-conduct discharge, confinement for 20 months, forfeiture of all pay and allowances, reduction to the grade of E-1, and a reprimand. The PTA required the convening authority to approve no more than 24 months of confinement.

Appellant raises two assignments of error. First, whether the sentence of confinement for 20 months is inappropriately severe. Second, whether Appel- lant is entitled to appropriate relief due to the convening authority’s failure to take action on the sentence as required by law.

We find the convening authority failed to take action on the entire sentence as he was required to do, and that Appellant’s requested relief of remand to the Chief Trial Judge, Air Force Trial Judiciary, is appropriate. We defer ad- dressing Appellant’s first assignment of error, which addresses the appropri- ateness of the approved sentence and subsequently entered judgment, until the record is returned to this court for completion of our Article 66, UCMJ, 10 U.S.C. § 866, review.

I. BACKGROUND After the sentence was adjudged by the military judge, Appellant requested the convening authority grant clemency. Appellant specifically requested that the convening authority disapprove “the portion of his sentence that calls for reduction to the grade of E-1 and total forfeitures.” Appellant further requested “any relief available . . . in accordance with the applicable Rules for Court-Mar- tial and Uniform Code of Military Justice.”

The convening authority subsequently issued his Decision on Action mem- orandum.2 In the memorandum, the convening authority stated, “I take no ac- tion on the sentence in this case.” Nevertheless, the convening authority pre- scribed the language of the reprimand. The Decision on Action memorandum also indicated Appellant would be required to take appellate leave under Arti- cle 76a, UCMJ, 10 U.S.C. § 876a. However, there was no explicit statement as to whether any element of the sentence was approved, disapproved, commuted, or suspended.

United States v. Jones, No. ACM 39950

After receiving the decision on action, the military judge signed the entry of judgment (EoJ), in which the sentence entered was the same as the sentence initially adjudged.

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 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, 10 U.S.C. § 860, 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. 9889, 9890 (1 Mar. 2018).

The date of the earliest charged offense of which Appellant was found guilty was on or about 7 March 2018. The version of Article 60, UCMJ, in effect on that date 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 sec- tion.” 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, UCMJ, further stated: “Except as [otherwise] provided . . . 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 United States Court of Appeals for the Armed Forces (CAAF) recently held that: In any case where an accused is found guilty of at least one spec- ification where the offense was committed before January 1, 2019, a convening authority errs if he fails to take one of the following mandated post-trial actions in a case: approve, disap- prove, commute, or suspend the sentence of the court-martial in whole or in part.

United States v. Jones, No. ACM 39950

United States v. Brubaker-Escobar, ___ M.J. ___, No. 20-0345, 2021 CAAF LEXIS 818, *6 (C.A.A.F. 7 Sep. 2021) (per curiam). In that case, the convening authority had signed a form stating he was taking “No Action” in the case. Id. at *3.

Similarly, the convening authority in this case stated in his Decision on Action memorandum that he was taking “no action on the sentence in this case.” The convening authority failed to state whether he approved, disap- proved, commuted, or suspended the sentence of the court-martial in whole or in part, to include Appellant’s adjudged reduction in grade and forfeitures, the portions of the adjudged sentence for which Appellant requested clemency.3 Considering Brubaker-Escobar, we find error.

Under the “new” Article 66, UCMJ, 10 U.S.C. § 866 (Manual for Courts- Martial, United States (2019 ed.) (2019 MCM)) applicable to this case, the con- vening authority’s error was procedural, not jurisdictional. Brubaker-Escobar, 2021 CAAF LEXIS 818, at *7–8. “[P]rocedural errors are ‘test[ed] for material prejudice to a substantial right to determine whether relief is warranted.’” Id. at *8 (second alteration in original) (quoting United States v. Alexander, 61 M.J. 266, 269 (C.A.A.F. 2005)).

In Brubaker-Escobar, our superior court held the convening authority’s er- ror in taking “no action” was harmless because the appellant did not request clemency, and the convening authority could not have granted meaningful clemency regarding any portion of the adjudged sentence.4 Id. at *8. In con-

All reductions in grade are based upon adjudged and approved sentences.”).

United States v. Jones, No. ACM 39950

trast, in this case Appellant requested clemency relief that the convening au- thority could meaningfully grant.5 Under the facts presented here, we cannot conclude the convening authority’s error did not materially prejudice a sub- stantial right of Appellant. Accordingly, remand is appropriate before we com- plete our Article 66, UCMJ, review.

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 convening authority failed to take action on the sentence as required by Article 60, UCMJ, and Brubaker-Escobar.

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.

United States v. Jones, No. ACM 39950

Thereafter, the record of trial will be returned to the court for completion of appellate review under Article 66, UCMJ.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court