United States v. Miller ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, STEWART, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Chase T. MILLER
Interior Communications Electrician Seaman (E-2), U.S. Navy
Appellant
No. 201900234
Decided: 10 February 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
upon reconsideration
Military Judge:
Roger Mattioli
Sentence adjudged 8 May 2019 by a special court-martial convened at
Naval Station Great Lakes, Illinois, consisting of a military judge
sitting alone. Sentence in the Entry of Judgment: reduction to E-1,
confinement for twelve months, and a bad-conduct discharge.
For Appellant:
Commander C. Eric Roper, JAGC, USN
For Appellee:
Lieutenant Catherine M. Crochetiere, JAGC, USN
Lieutenant Joshua C. Fiveson, JAGC, USN
Lieutenant Kevin G. Edwards II, JAGC, USN
11 February 2021:
Administrative correction to footnote 1 to add the missing quotation mark.
United States v. Miller, NMCCA No. 20190234,
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 found guilty, in accordance with his pleas, of violation of a
lawful general order by possessing drug paraphernalia, making a false official
statement, and wrongful use of a controlled substance, in violation of Articles
92, 107, and 112a, Uniform Code of Military Justice [UCMJ], 10 U.S.C.
§§ 892, 907, 912a. The convening authority approved the adjudged sentence
of confinement for twelve months, reduction to E-1, and a bad-conduct
discharge.
On 28 December 2020, we issued an order in this case remanding this for
new post-trial processing. On 27 January 2021, within thirty days of our
order, the Government filed a motion for en banc consideration or panel
reconsideration. We hereby withdraw our 28 December 2020 opinion and
issue this opinion in its stead.
I. BACKGROUND
Appellant began his post-trial confinement the day he was sentenced, 8
May 2019. He was placed in post-trial “protective custody” at Lake County
Correctional Facility for thirty-three days and during that time made two
requests to be transferred to the general population, which were denied.
Appellant also submitted two clemency requests to the convening authority
requesting, among other things, suspension of the adjudged and automatic
reduction in paygrade. On 10 June 2019 Appellant was transferred to the
Chesapeake Brig where he was placed in medical segregation pending a
medical evaluation. On 28 June 2019 Appellant submitted a post-trial motion
to the military judge alleging illegal post-trial confinement and asking for a
sentence reduction and additional confinement credit. The military judge
conducted a post-trial hearing on 9 July 2019 to hear Appellant’s motion
based on allegations that his post-trial “protective custody” in civilian jail
violated the Eighth Amendment of the Constitution, Article 55, UCMJ, and
Rule for Courts-Marital [R.C.M.] 1104. At the conclusion of the post-trial
hearing, the military judge reserved ruling on the motion and informed
counsel he would issue a written ruling within a week.
2
United States v. Miller, NMCCA No. 20190234,
Opinion of the Court
On 24 July, 2019, the convening authority took action on Appellant’s
court-martial, denying Appellant’s clemency requests. A week later, on 31
July 2019, the military judge issued his written ruling in which he denied the
Defense motion for sentencing relief but found, sua sponte, a violation of
Article 13, UCMJ, and awarded an additional fifteen days of confinement
credit. Based upon the dates and omitted documents in the record of trial, it
is clear that the convening authority did not have access to the military
judge’s written ruling when he took action on Appellant’s case. Despite this,
somehow the convening authority’s action (signed a week before the military
judge’s ruling) accounts for the additional fifteen days of pre-trial confine-
ment credit eventually awarded by the military judge. In fact, the date stamp
on the military judge’s written ruling suggests that in addition to not being
issued by the time of the convening authority’s action, or present in the
record of trial, the military judge’s ruling did not even exist prior to that
time. 1 We are thus unable to determine from the record how the convening
authority’s action was able to reflect the additional fifteen days of credit
granted a week later by the military judge. Below is a synopsis of the time
line in this case:
8 May 2019 Appellant sentenced
17 May 2019 Appellant submits clemency requests
9 Jul 2019 Post-trial hearing on 8th Amendment claims
11 Jul 2019 Statement of Trial Results
24 Jul 2019 Convening Authority Action
31 Jul 2019 Ruling on post-trial motion
31 Jul 2019 Entry of Judgment
II. LAW AND ANALYSIS
Whether a record of trial is incomplete is a question of law which we
review de novo. “The requirement that a record of trial be complete and
substantially verbatim in order to uphold the validity of a verbatim record
1 Appellee’s motion for reconsideration states that “[o]n July 9, 2019 the Military
Judge held a post-trial 39(a) hearing on Appellant’s post-trial Motion.” The following
sentence then states that the “[m]ilitary judge awarded Appellant additional pre-trial
confinement credit. (R. 170.)” However, the record at page 170 only reflects the
military judge’s analysis of Pierce credit for a prior nonjudicial punishment for which
he awarded Appellant 23 days of credit. See United States v. Pierce, 27 M.J. 367, 369
(C.M.A. 1989).
3
United States v. Miller, NMCCA No. 20190234,
Opinion of the Court
sentence is one of jurisdictional proportion that cannot be waived.” United
States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000); see also R.C.M. 1112(b)(1)
(2019). 2 Whether an omission is substantial can be a question of quality as
well as quantity. See United States v. Lashley, 14 M.J. 7, 9 (C.M.A. 1982).
Substantial omissions render a record of trial incomplete, raising a presump-
tion of prejudice. Id. at 8. Insubstantial omissions do not raise a presumption
of prejudice or affect the record’s characterization as a complete one. Henry,
53 M.J. at 111.
A. The Record Contains Substantial Omissions That Give Rise to a
Presumption of Prejudice
We have previously discussed that there are “two primary points in the
post-trial process during which prejudice could result from a record of trial
that has substantial omissions: (1) the [Convening Authority’s] action, and
(2) appellate review.” United States v. Underhill, No. 200700144, 2007 CCA
LEXIS 306, at *8-*9 (N-M. Ct. Crim. App. Aug. 9, 2007) (unpublished).
Because the military judge’s ruling was attached to the record during
appellate review, we focus solely on the impact of its omission by virtue of its
nonexistence at the convening authority’s action stage of the post-trial
process. Specifically, we will examine whether there was a substantial
omission at the convening authority’s action stage and, if so, whether the
Government has rebutted any presumption of prejudice that arose from the
convening authority acting on a record with a substantial omission.
In this case, the military judge’s written ruling is seven pages and details
thorough findings of fact and conclusions of law regarding his decision to
deny the trial defense counsel’s post-trial motion but to sua sponte determine
that the government violated Article 13, UCMJ. We view this omission from
the record at the time of the convening authority’s action as significant in
terms of quality and quantity, and find that it was substantial. The bottom
line is that the military judge’s ruling did not exist, in either written or oral
2 Henry was based on a pre-Military Justice Act of 2016 version of the Rules for
Courts-Martial. See, e.g., R.C.M. 1103(b)(2)(B) (2016). The prior rule required a
verbatim transcript whenever “[t]he sentence adjudged includes confinement for
twelve months or more or any punishment that may not be adjudged by a special
court-martial.” R.C.M. 1103(b)(2)(B)(i) (2016). The rule that applies to this case
requires that the “record of trial in every general and special court-martial shall
include . . . [a] substantially verbatim recording of the court-martial proceedings
. . . .” R.C.M. 1112(b)(1) (2019). Thus, a substantially verbatim record of trial was
required in this case, even if under a different rule than that applied in Henry.
4
United States v. Miller, NMCCA No. 20190234,
Opinion of the Court
form, at the time of the convening authority’s action and it addressed a
significant issue that was ultimately resolved in favor of Appellant. As a
result, this omission created a presumption of prejudice that the Government
may rebut.
B. The Government Did Not Rebut the Presumption of Prejudice
The Government argues that the omission was irrelevant to the conven-
ing authority’s review and therefore there was no prejudice to Appellant. We
disagree and find that the Government has not rebutted the presumption of
prejudice for the following reasons.
The first part of the analysis begins with examining what authority and
duty rested with the convening authority at the time of his action. Because
all the charges in this case occurred prior to 1 January 2019, but after 24
June 2014, the version of Article 60, UCMJ, from 2016 provides the relevant
limits of the convening authority’s clemency authority. 10 U.S.C. § 860 (Supp.
IV 2017). Under that version of Article 60, and the implementing Rules for
Courts-Martial, the convening authority could not disapprove, commute, or
suspend, in whole or in part, that portion of an adjudged sentence that
included “(i) confinement for more than six months; or (ii) dismissal,
dishonorable discharge, or bad-conduct discharge.” R.C.M. 1107(d)(1)(B)
(2016). However, the convening authority could disapprove, commute, or
suspend, in whole or in part, any portion of an adjudged sentence not
explicitly prohibited by the rule, to include reduction in paygrade. R.C.M.
1107(d)(1)(A) (2016). Appellant’s request for clemency asked for just that.
With respect to clemency, the convening authority “shall consider matters
timely submitted under R.C.M. 1106 and 1106A” before taking or declining to
take action. R.C.M. 1109(d)(3)(A). In addition, the convening authority may
consider additional matters before taking action to include “[t]he evidence
introduced at the court-martial, and any appellate exhibits, and the recording
or transcription of the proceedings . . . and . . . [s]uch other matters as the
convening authority deems appropriate.” R.C.M. 1109(d)(3)(B). Finally, in
“determining whether to take action, or to decline taking action under this
rule, the convening authority shall consult with the staff judge advocate or
legal advisor.” R.C.M 1109(d)(2).
The record in this case establishes that the convening did consult with the
staff judge advocate prior to taking action, but neither was able to review or
consider the military judge’s ruling on the post-trial motion. Indeed, the
military judge’s written post-trial ruling did not even exist at the time the
convening authority acted, and nor had the military judge put his ruling on
this issue on the record orally. As a result of this substantial omission, the
convening authority was deprived of the ability to review material that was
5
United States v. Miller, NMCCA No. 20190234,
Opinion of the Court
within his discretion to consider, and thus to meaningfully exercise his
clemency authority. We further find that since the military judge’s ruling did
not exist, the Staff Judge Advocate Review or legal officer recommendation
was unable to provide an informed recommendation, such that Appellant was
deprived of a full opportunity for corrective action or clemency from the
convening authority. See generally United States v. Wilson, 26 C.M.R. 3, 6
(C.M.A. 1958) (“It is while the case is at the convening authority level that
the accused stands the greatest chance of being relieved from the conse-
quences of a harsh finding or a severe sentence.”). Although the Rules for
Courts-Martial no longer require that the record of trial contain a substan-
tially verbatim transcription, 3 we hold the trial should be complete, and all
substantive rulings of the military judge should exist, either in writing or
placed orally on the record in open court, before a convening authority
determines what to consider prior to taking action. We also hold that it is an
abuse of the discretion conferred upon a convening authority in R.C.M.
1109(d)(3) for a convening authority take an action on the sentence prior to
this point in a case. 4
We simply do not know and cannot speculate whether the convening
authority would have granted relief to Appellant had he been fully aware of
the conditions of his pre and post-trial confinement that resulted in addition-
al confinement credit being awarded by the military judge. Although the
convening authority was limited by Article 60 with regard to any action he
could take in this case, the fact remains that the convening authority took
action before the military judge ruled on a post-trial motion that was
ultimately resolved in Appellant’s favor. Although the convening authority’s
action somehow accounts for the additional fifteen days’ credit awarded by
the military judge, we have no way of determining how he accounted for that
when the military judge withheld ruling on the motion until a week after the
convening authority acted. Had the convening authority been aware of the
3 Dep’t of the Navy, Judge Advocate General / Commander Naval Legal Service
Command Instr. 5814.1D, Post-Trial Processing para. 4.a. (Sept. 6, 2019), requires a
verbatim transcript in all general and special courts-martial tried in the Department
of the Navy where a finding of guilty is reached.
4 Taking action on a sentence prior to this point deprives the accused and crime
victim from being able to submit matters under R.C.M. 1106 and 1106A. By
definition, if the military judge has not ruled on a substantive motion (in this case
one involving an alleged Constitutional violation) the accused and crime victim
cannot address potential issues arising from said ruling that may reasonably tend to
inform the convening authority’s exercise of discretion under R.C.M. 1109.
6
United States v. Miller, NMCCA No. 20190234,
Opinion of the Court
judge’s rationale for awarding the additional credit, the convening authority
may have, consistent with his limited authority, deferred or waived Appel-
lant’s reduction as a matter of clemency that was within his authority to
grant. Because the convening authority took action on the sentence prema-
turely, we find that he abused the discretion conferred upon him under
R.C.M. 1109(d)(3).
III. CONCLUSION
That the Convening Authority’s Action and the Entry of Judgment are
SET ASIDE. The complete record will be forwarded to a suitable convening
authority for Action in compliance with R.C.M. 1110, and subsequently
forwarded to the military judge to issue an Entry of Judgment in accordance
with R.C.M. 1111. Thereafter, the record will be returned to this Court for
completion of appellate review.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
7