United States v. Montealegrecharro ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, BAKER, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Victor MONTEALEGRECHARRO
Aviation Boatswain’s Mate Aircraft Handler Airman (E-3)
U.S. Navy
Appellant
No. 201900303
Decided: 20 August 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Ann K. Minami (arraignment)
Kimberly J. Kelly (trial)
Sentence adjudged 8 August 2019 by a special court-martial convened
at Naval Base Kitsap, Bremerton, Washington, consisting of a mili-
tary judge sitting alone. Sentence in the Entry of Judgment: reduction
to E-1 and confinement for 10 months. 1
For Appellant:
Major Mary Claire Finnen, USMC
1 The convening authority suspended confinement in excess of 8 months pursuant
to a pretrial agreement.
United States v. Montealegrecharro, NMCCA No. 201900303
Opinion of the Court
For Appellee:
Lieutenant Catherine M. Crochetiere, JAGC, USN
_________________________
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 wrongful use and dis-
tribution of lysergic acid diethylamide in violation of Article 112a, Uniform
Code of Military Justice. 2
In his sole assignment of error, Appellant requests this Court to correct
the Entry of Judgment to reflect that the approved sentence did not include
the adjudged reduction to E-1. After careful consideration of the record of
trial and the pleadings of the parties, we find the convening authority’s
action on the sentence requires clarification with respect to the adjudged
reduction to E-1, and we remand the record of trial for additional post-trial
action in this regard.
I. BACKGROUND
The offenses of which Appellant was convicted occurred in 2018 and were
referred to special court-martial in 2019. At trial, the military judge sen-
tenced Appellant to ten months’ confinement and reduction to E-1. The
Defense submitted clemency requests asking that the convening authority
disapprove the adjudged reduction to E-1 and that Appellant not be reduced
below the paygrade of E-2, which the staff judge advocate correctly summa-
rized in his post-trial review. In taking action on the case, the convening
authority stated that he approved the adjudged confinement, suspended
confinement in excess of eight months in accordance with the pretrial agree-
ment, and waived automatic forfeitures for six months; however, his action
was silent as to the adjudged reduction in rank. In the Entry of Judgment,
2 10 U.S.C. § 912a.
2
United States v. Montealegrecharro, NMCCA No. 201900303
Opinion of the Court
the military judge stated the convening authority had “approved the sentence
adjudged.”
II. DISCUSSION
Pursuant to Rule for Courts-Martial [R.C.M.] 1109(g), “[i]f the convening
authority decides to act on the sentence under this rule, such action shall be
in writing and shall include a written statement explaining the action. If any
part of the sentence is disapproved, the action shall clearly state which part
or parts are disapproved.” 3
Here, the convening authority took action on the sentence in writing, but
that writing does not address the adjudged reduction in rank. This silence
leaves us with a materially ambiguous convening authority action whose
meaning we cannot discern with any confidence. When the Court “address[es]
situations that present an ambiguity . . . the proper course of action is to
remand for corrective action . . . .” 4
III. CONCLUSION
Accordingly, the Convening Authority Action and Entry of Judgment are
SET ASIDE. The record of trial is returned to the Judge Advocate General
for remand to an appropriate convening authority to complete post-trial
processing in compliance with R.C.M. 1109. Thereafter, the record will be
forwarded to the Navy-Marine Corps Chief Trial Judge to detail a military
judge to re-accomplish the Entry of Judgment in accordance with R.C.M.
1111. The record will then be returned to this Court for completion of appel-
late review.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
3 R.C.M. 1109(g)(2).
4 United States v. Gosser, 64 M.J. 93, 96 (C.A.A.F. 2006) (citing United States v.
Politte, 63 M.J. 24, 27 (C.A.A.F. 2006)).
3