United States v. Howell

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM 39949 ________________________ UNITED STATES Appellee v. Nicholas G. HOWELL First Lieutenant (O-2), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Decided 28 October 2021 ________________________ Military Judge: Jason M. Kellhofer.

Sentence: Sentence adjudged on 11 May 2020 by GCM convened at Shaw Air Force Base, South Carolina. Sentence entered by military judge on July 2020: Dismissal, confinement for 30 days, and total forfeitures.

For Appellant: Captain David L. Bosner, USAF.

For Appellee: Major John P. Patera, USAF; Mary Ellen Payne, Esquire.

Before POSCH, RICHARDSON, and CADOTTE, 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 ________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4.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: In accordance with Appellant’s pleas and pursuant to an agreement be- tween Appellant and the convening authority, a general court-martial com- posed of a military judge sitting alone found Appellant guilty of one specifica- tion of distribution of cocaine on divers occasions, and one specification of use of cocaine on divers occasions, in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a, Manual for Courts-Martial, United United States v. Howell, No. ACM 39949

States (2016 MCM).1 Appellant was also found guilty of fraternization that was charged as a violation of Article 134, UCMJ, 10 U.S.C. § 934, pursuant to the same agreement. Appellant pleaded not guilty to a charge with one specifica- tion of attempted distribution of cocaine in violation of Article 80, UCMJ, 10 U.S.C. § 880, which was withdrawn and dismissed with prejudice prior to ad- journment.

As part of his agreement with the convening authority, Appellant waived his right to trial by members; waived the opportunity to obtain the personal appearance of witnesses for presentencing proceedings; waived all waivable motions; elected to be sentenced under the post-1 January 2019 rules;2 and agreed to enter into a stipulation of fact with the trial counsel. The agreement required the military judge to enter concurrent segmented sentences. The agreement further required the adjudged confinement for each specification to be less than a maximum of 120 days if a dismissal was not adjudged and a maximum of 60 days if a dismissal was adjudged. The military judge sentenced Appellant to a dismissal, confinement for 30 days, and total forfeitures.

Appellant raises two assignments of error on appeal: (1) whether Appellant is entitled to appropriate relief due to the convening authority’s failure to take action on the sentence; and (2) whether Appellant is entitled to sentence relief resulting from appellate delay.

We agree with Appellant with respect to his first assignment of error that the convening authority failed to take action on the sentence. See United States v. Brubaker-Escobar, __ M.J. __, No. 20-0345, 2021 CAAF LEXIS 818 (C.A.A.F.

7 Sep. 2021) (per curiam). As a result, we conclude that remand to the Chief Trial Judge, Air Force Trial Judiciary, is appropriate. Considering our resolu- tion of Appellant’s first assignment of error, we will defer addressing the sec- ond assignment of error until the record is returned to this court for completion of our review under Article 66(d), UCMJ, 10 U.S.C. § 866(d).

I. BACKGROUND The offenses for which Appellant was convicted had a date range which started before 1 January 2019. The charges and specifications were referred to

1 As charged, Appellant was convicted of conduct between on or about 1 April 2018 and on or about 13 March 2019. Accordingly, all references in this opinion to the punitive articles of the UCMJ are to the 2016 MCM. The charges and specifications were re- ferred to trial after 1 January 2019. Accordingly, except where indicated, all other ref- erences to the UCMJ and the Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019 ed.). See Exec. Order 13,825, §§ 3, 5, 83 Fed. Reg. 9889, 9889–90 (8 Mar. 2018).

2 This election was made prior to arraignment consistent with R.C.M. 902A(b).

United States v. Howell, No. ACM 39949

a general court-martial on 8 January 2020. Appellant’s court-martial con- cluded on 11 May 2020. On 18 May 2020, Appellant submitted a petition for clemency. Appellant specifically requested the convening authority “reduce, commute, or suspend the sentence of confinement and adjudged total forfei- tures of pay and allowances.” On 29 June 2020, the convening authority signed a Decision on Action memorandum. In the memorandum, the convening au- thority stated, “I take no action on the sentence in this case.” The convening authority then specified, “Unless competent authority otherwise directs, upon completion of the sentence to confinement, [Appellant] will be required, under Article 76a, UCMJ, [10 U.S.C. § 876a,] to take leave pending completion of ap- pellate review.” The convening authority further explained: “Prior to coming to this decision, I consulted with my Staff Judge Advocate. Before taking action in this case, I considered matters timely submitted by [Appellant] under R.C.M. 1106.”

After the conclusion of his court-martial, Appellant did not raise a motion under R.C.M. 1104(b)(2)(B) to challenge the form or legality of the convening authority’s decision on action.

II. DISCUSSION During the pendency of this appeal, the United States Court of Appeals for the Armed Forces (CAAF) decided Brubaker-Escobar, holding: [I]n any court-martial where an accused is found guilty of at least one specification involving an offense that was committed before January 1, 2019, a convening authority errs if he fails to take one of the following post-trial actions: approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part. 2021 CAAF LEXIS 818, at *1; see also Article 60, UCMJ, 10 U.S.C. § 860 (2016 MCM).

In Brubaker-Escobar, the CAAF found the convening authority’s failure to explicitly take one of those actions was a “procedural error.” Id. at *2, *7–8.

The CAAF then noted: “procedural errors are ‘test[ed] for material prejudice to a substantial right to determine whether relief is warranted.’” Id. at *8 (alter- ation in original) (quoting United States v. Alexander, 61 M.J. 266, 269 (C.A.A.F. 2005)). It held the convening authority’s error in taking “no action” was harmless because the appellant did not request clemency and the conven- ing authority could not have granted meaningful clemency regarding any por- tion of the adjudged sentence. Id. at *8.

In contrast, in this case Appellant requested clemency relief that the con- vening authority could meaningfully grant. The convening authority had the

United States v. Howell, No. ACM 39949

power to disapprove, commute, or suspend the adjudged confinement and for- feitures. Rule for Courts-Martial 1107(d) (2016 MCM). The convening author- ity’s failure to take action on the sentence was a procedural error and under the facts presented here, we cannot conclude the convening authority’s error did not materially prejudice a substantial right of Appellant.

Accordingly, remand to the Chief Trial Judge, Air Force Trial Judiciary, is appropriate to resolve the error before we complete our review. See Article 66(f)(3), UCMJ, 10 U.S.C. § 866(f)(3).

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, proceedings using the pro- cedural rules for post-trial Article 39(a), UCMJ, 10 U.S.C. § 839(a), ses- sions; 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(d), UCMJ.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court