United States v. Novelli

***CORRECTED COPY – DESTROY ALL OTHERS*** U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM 40103 ________________________ UNITED STATES Appellee v. Michael E. NOVELLI Senior Airman (E-4), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Decided 12 July 2022 ________________________ Military Judge: Willie J. Babor (arraignment and motions), Charles E.

Wiedie, Jr. (trial).

Sentence: Sentence adjudged on 26 January 2021 by GCM convened at Spangdahlem Air Base, Germany. Sentence entered by military judge on 1 March 2021: Bad-conduct discharge, confinement for 600 days, for- feiture of all pay and allowances, and reduction to E-1.

For Appellant: Major Kasey W. Hawkins, USAF.

For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Lieutenant Colonel Amanda L.K. Linares, USAF; 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 ________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4.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 his pleas and pursuant to a plea agreement, Appellant was convicted of several drug-related offenses in violation of Articles 112a, 81, 80, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 881, United States v. Novelli, No. ACM 40103

880, and 934:1 two specifications of marijuana use, the second on divers occa- sions; one specification each of using cocaine and psilocybin, on divers occa- sions; one specification each of using tetrahydrocannabinols, diazepam (Va- lium), alprazolam (Xanax), and anabolic steroids; three specifications of mari- juana possession; one specification each of possessing cocaine, tetrahydrocan- nabinols, anabolic steroids, and lysergic acid diethylamide; one specification of conspiracy to commit exportation of marijuana; one specification of conspiracy to commit exportation of tetrahydrocannabinols; three specifications of at- tempt to possess marijuana; one specification of attempt to possess gamma hy- droxybutric acid; one specification of solicitation to use anabolic steroids; and one specification of solicitation to distribute amphetamine.2,3 The maximum punishment based on the convicted offenses included a dis- honorable discharge and over 100 years in confinement. The plea agreement with Appellant required the military judge to adjudge no more than 30 months’ total confinement for all the offenses, with the individual periods to run con- secutively.4 The military judge sentenced Appellant to some period of confine- ment for each specification, resulting in a sentence of 600 days’ confinement, in addition to a bad-conduct discharge, forfeiture of all pay and allowances, and reduction to the grade of E-1. Appellant was credited with 236 days for pretrial confinement. The convening authority approved the sentence in its entirety.

I. BACKGROUND Appellant raises four issues on appeal: whether (1) the entry of judgment should be corrected; (2) the conspiracy specifications are an unreasonable mul- tiplication of charges; (3) trial counsel’s sentencing argument was improper;

United States v. Novelli, No. ACM 40103

and (4) his sentence is inappropriately severe.5 Regarding issue (1), the Gov- ernment “agrees that the entry of judgment should address the specific [lesser- included offenses] for which Appellant was convicted.” In our decretal para- graph we remand the case to the Chief Trial Judge, Air Force Trial Judiciary, for modification of the entry of judgment. We have carefully considered issues (2), (3), and (4) and determine no discussion or relief is warranted. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).

II. DISCUSSION Proper completion of post-trial processing is a question of law that this court reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004) (citing United States v. Kho, 54 M.J. 63 (2000)). “The Judge Advocate General, the Court of Criminal Appeals, and the [United States] Court of Appeals for the Armed Forces may modify a judgment in the perfor- mance of their duties and responsibilities.” R.C.M. 1111(c)(2). “A record of trial found to be incomplete or defective before or after certification may be corrected to make it accurate.” R.C.M. 1112(d)(2). “A superior competent authority may return a record of trial to the military judge for correction under this rule.” Id. “Defective or incomplete records of trial may be forwarded by the superior com- petent authority to the Chief Trial Judge[, Air Force Trial Judiciary,] for cor- rection,” who then “may detail a subordinate trial judge to correct the [record of trial] in accordance with R.C.M. 1112(d)(2).” Department of the Air Force Instruction 51-201, Administration of Military Justice, ¶ 21.15.1 (14 Apr.

2022). “If a case is remanded to a military judge, the military judge may modify the judgment consistent with the purposes of the remand.” R.C.M. 1111(c)(3).

Appellant alleges error in the entry of judgment with respect to four speci- fications. As charged, two specifications alleged possession with intent to dis- tribute and two specifications alleged attempted possession with intent to dis- tribute. To these offenses, Appellant pleaded guilty to a lesser-included offense (LIO) involving possession without the intent to distribute. Appellant entered the following pleas to these specifications: To Charge I, Specification 4: Not Guilty, but Guilty of the lesser included offense of wrongful possession of marijuana, in viola- tion of Article 112a, UCMJ.

To Charge I, Specification 5: Not Guilty, but Guilty of the lesser included offense of wrongful possession of [ ] anabolic steroids, in violation of Article 112a, UCMJ.

United States v. Novelli, No. ACM 40103

....

To Additional Charge I, Specification 2: Not Guilty, but Guilty of the lesser included offense of attempted wrongful possession of gamma-Hydroxybutyric acid, in violation of Article 80, UCMJ. ....

To Additional Charge II, Specification 4: Not Guilty, but Guilty of the lesser included offense of wrongful possession of mariju- ana, in violation of Article 112a, UCMJ.

Charge I and Additional Charge II alleged violations of Article 112a, UCMJ.

Additional Charge I alleged violations of Article 80, UCMJ.6 In the plea agreement with the convening authority, the Government agreed not to proceed on the charged greater offenses to those identified above—each of which alleged an intent to distribute—to include not presenting any evidence of the greater offenses beyond what was contained in the stipu- lation of fact.

After finding Appellant’s pleas provident, the military judge ascertained from the Government that it did not intend to prove up the greater offenses.

The military judge then announced the following findings to the four specifica- tions at issue: Of Specification 4 of Charge I: Not Guilty of possession of a con- trolled substance with intent to distribute, but Guilty of posses- sion of a controlled substance.

Of Specification 5 of Charge I: Not Guilty of possession of a con- trolled substance with intent to distribute, but Guilty of posses- sion of a controlled substance. ....

Of Specification 2 of Additional Charge I: Not Guilty of at- tempted possession of a controlled substance with intent to dis- tribute, but Guilty of attempted possession of a controlled sub- stance. ....

United States v. Novelli, No. ACM 40103

Of Specification 4 of Additional Charge II: Not Guilty of posses- sion of a controlled substance with intent to distribute, but Guilty of possession of a controlled substance.

The entry of judgment has entries for the plea and finding to each specifi- cation. For Specifications 4 and 5 of Charge I, and Specification 4 of Additional Charge II, both pleas and findings are entered as, “NG, but guilty of the LIO of Art. 112a.” For Specification 2 of Additional Charge I, both pleas and find- ings are entered as, “NG, but guilty of the LIO of Art. 80.” Beyond the UCMJ article, the entry of judgment does not specify the lesser offense to which Ap- pellant pleaded, and was found, guilty. Specifically, it does not mirror the mil- itary judge’s clear announcement of his findings, which he made “in accordance with [Appellant’s] plea of guilty,” that reflect pleas and findings of not guilty to the alleged “intent to distribute” the illegal substances.

In its answer to Appellant’s assignments of error, the Government does not agree with Appellant that the entry of judgment is “inaccurate,” and instead asserts it lacks specificity. “The United States agrees that the entry of judg- ment should address the specific LIOs for which Appellant was convicted.” The Government requests this court “make the correction itself, rather than re- manding the case, in accordance with [Rule for Courts-Martial] 1111(c)(2).”

Appellant requests this court order the publication of a corrected entry of judg- ment. We agree the entry of judgment should be modified to provide greater specificity, and agree with Appellant’s proposed remedy.

Although not raised as an assignment of error, in our review we noted the entry of judgment is lacking specificity with respect to two other specifications.

Appellant pleaded guilty to Specifications 1 and 2 of Charge II by exceptions and substitutions,7 as follows: To Charge II, Specification 1: Guilty, except for the first words “Speicher, Germany” substituting therefor the words “the Mid- dle East”. Of the excepted words, Not Guilty. Of the substituted words, Guilty.

To Charge II, Specification 2: Guilty, except for the first words “Speicher, Germany” substituting therefor[ ] the words “the Middle East”. Of the excepted words, Not Guilty. Of the substi- tuted words, Guilty.

United States v. Novelli, No. ACM 40103

(Emphasis added.) The words “Speicher, Germany” also appeared at the end of each specification, in the address where Appellant’s father shipped the pack- age of drugs. The military judge confirmed, “And just to be clear on the record, because yeah, ‘Speicher, Germany’ appears twice within the specification. So what - the exceptions and substitutions apply to the actual location where the offense occurred. Is that correct, Defense Counsel?” to which trial defense coun- sel replied, “Yes, Your Honor.”

The military judge announced his findings to these specifications, “in ac- cordance with [Appellant’s] plea of guilty,” as follows: Of Specification 1 of Charge II: Guilty except the words “Speicher, Germany” substituting therefor the words “the Mid- dle East”. Of the excepted words Not Guilty. Of the substituted words Guilty.

Of Specification 2 of Charge II: Guilty except the words “Speicher, Germany” substituting therefor the words “the Mid- dle East”. Of the excepted words Not Guilty. Of the substituted words Guilty.

For Specifications 1 and 2 of Charge II, for both pleas and findings, the entry of judgment states, “G, except the words ‘Speicher, Germany,’ substitut- ing the words with ‘the Middle East’; of the excepted words, NG; of the substi- tuted words, G.” The entry of judgment does not indicate that it was the first words “Speicher, Germany” appearing in the specifications that were excepted and substituted, and not the words later in both specifications that indicate the mailing address where Appellant’s father shipped a package.

Therefore, based on the discrepancies noted above, we order a modified en- try of judgment.

III. CONCLUSION The record of trial is REMANDED to the Chief Trial Judge, Air Force Trial Judiciary, for modification of the entry of judgment as noted above. Article 66(g), UCMJ, 10 U.S.C. § 866(g); R.C.M. 1111(c)(3). Thereafter, the record of trial will be returned to this court for completion of appellate review under Article 66, UCMJ, 10 U.S.C. § 866. Appellate counsel for the Government will inform the court not later than 12 August 2022, in writing, of the status of compliance with the court’s decree unless the record of trial has been returned to the court prior to that date.

United States v. Novelli, No. ACM 40103

FOR THE COURT

CAROL K. JOYCE Clerk of the Court