United States v. Nuzzo ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, PENNIX, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Michael NUZZO III
Culinary Specialist Third Class (E-4), U.S. Navy
Appellant
No. 202000072
Decided: 9 August 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Chad C. Temple
Sentence adjudged 10 December 2019 by a general court-martial
convened at Naval Base San Diego, California, consisting of a military
judge sitting alone. Sentence in the Entry of Judgment: reduction to
E-1, confinement for 24 months, and a bad-conduct discharge.
For Appellant:
Captain Kimberly D. Hinson, JAGC, USN
For Appellee:
Lieutenant Commander Nicholas N. Joy, JAGC, USN
Lieutenant Kevin G. Edwards II, JAGC, USN
United States v. Nuzzo, NMCCA No. 202000072
Opinion of the Court
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
Appellant was convicted, pursuant to his pleas, of one specification of
aggravated assault and two specifications of assault consummated by a
battery, in violation of Article 128, Uniform Code of Military Justice
[UCMJ], 1 for strangling a fellow service member, biting her, and striking her
in the face.
Appellant raises as his sole assignment of error that the convening au-
thority erred by taking no action on the sentence for offenses that were
committed prior to 1 January 2019; he asks us to remand for remedial post-
trial processing. We find the convening authority’s lack of action on the
sentence amounts to harmless error, and we affirm the findings and
sentence.
I. BACKGROUND
The Charge and specifications that Appellant was convicted of occurred in
November 2017 and were referred to court-martial in October 2019. At trial,
Appellant was sentenced to reduction to E-1, confinement for 24 months, and
a bad-conduct discharge. His clemency request asked the convening authority
to “favorably recommend[ ] that the Naval Clemency and Parole Board grant
[him] parole at the earliest opportunity.” 2 The convening authority stated in
his subsequent action, “I take no action on the findings or sentence in this
case.” 3
1 10 U.S.C. § 928.
2 Clemency Request at 1.
3 Convening authority action at 2.
2
United States v. Nuzzo, NMCCA No. 202000072
Opinion of the Court
II. DISCUSSION
As we have previously discussed, “the version of Article 60, UCMJ, in
effect at the time of an appellant’s earliest offense is applicable to the extent
it: requires convening authority action on the sentence . . . and authorizes the
convening authority to approve, disapprove, commute, or suspend the
sentence.” 4 We retain jurisdiction for cases where the convening authority
fails to take action on the sentence for offenses that occurred prior to 1
January 2019 if those cases were referred to court-martial after 1 January
2019. 5 As this is such a case, we retain jurisdiction and test any errors for
prejudice under Article 59(a), UCMJ. 6
Under the version of Article 60, UCMJ, in effect at the time of the earliest
of Appellant’s offenses resulting in conviction, the convening authority’s
options were to “approve, disapprove, commute, or suspend the sentence of a
court-martial in whole or in part.” 7 Since the statement, “I take no action on
the findings or sentence in this case,” does not satisfy any of these options, we
find the convening authority’s action was erroneous.
However, we find Appellant was not prejudiced by the error. Appellant’s
clemency request, as noted in the staff judge advocate’s review, was for the
convening authority to favorably endorse Appellant’s parole request to the
4 United States v. Pearson, 81 M.J. 592, 601 n.21 (N-M. Ct. Crim. App. 2021)
(citing 2018 Amendments to the Manual for Courts-Martial, United States, Exec.
Order 13,825, 83 Fed. Reg. 9,889, 9,890, sec 6.(b) (Mar. 1, 2018)). We are aware of our
superior court’s recent decision in United States v. Brubaker-Escobar, ___ M.J. ___,
No. 20-0345/AR, 2021 CAAF LEXIS 508 at *8, 10 (C.A.A.F. June 4, 2021) (holding
that the President’s Executive Order “is inconsistent with the [Military Justice Act of
2016 [MJA]] to the extent it orders convening authorities to apply pre-MJA post-trial
procedures to cases in which no UCMJ action was taken before the MJA’s effective
date, January 1, 2019,” and that the Executive Order can no longer be used to apply
the old Article 60, UCMJ “to cases in which no action was taken under the UCMJ
before January 1, 2019”). We are also aware of CAAF’s subsequent vacation of that
holding and granting of reconsideration in that case due to the appellant and
appellee’s joint motion “citing for the first time a statute directly relevant to the
granted issue.” United States v. Brubaker-Escobar, ___ M.J. ___, No. 20-0345/AR,
2021 CAAF LEXIS 683 at *1 (C.A.A.F. July 19, 2021). As CAAF’s interpretation of
the law is currently unsettled, we maintain and apply the precedent we established
in Pearson.
5 Brubaker-Escobar, ___ M.J. ___, 2021 CAAF LEXIS 683 at *17.
6 See id.7 Article 60(c)(2)(B) (2016), UCMJ.
3
United States v. Nuzzo, NMCCA No. 202000072
Opinion of the Court
Naval Clemency and Parole Board, and thus does not contain any “matters
that may reasonably tend to affect the convening authority’s decision
whether to disapprove any findings of guilty or to approve the sentence.” 8 As
the clemency request was beyond the scope of R.C.M. 1105, we find that any
lack of response by the convening authority is not prejudicial and therefore,
as in Pearson, “the convening authority’s failure to take action on the
sentence constitutes harmless error.” 9
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. 10
The findings and sentence in the Entry of Judgment are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
8 Rule for Courts-Martial [R.C.M.] 1105(b).
9 Pearson, 2021 CCA LEXIS 130, at *18.
10 Articles 59 & 66, UCMJ.
4