United States v. Arroyo ( 2023 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 40321
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UNITED STATES
Appellee
v.
Monica R. ARROYO
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 25 August 2023
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Military Judge: Christopher D. James (arraignment and pretrial
motions); Thomas A. Smith.
Sentence: Sentence adjudged 9 March 2022 by GCM convened at Tinker
Air Force Base, Oklahoma. Sentence entered by military judge on 26
April 2022: Bad-conduct discharge, confinement for 37 days, and
reduction to E-2.
For Appellant: Major Heather M. Caine, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major Jay S.
Peer, USAF; Captain Olivia B. Hoff, USAF; Mary Ellen Payne, Esquire.
Before RICHARDSON, ANNEXSTAD, and RAMÍREZ, Appellate
Military Judges.
Judge RAMÍREZ delivered the opinion of the court, in which Senior
Judge RICHARDSON and Senior Judge ANNEXSTAD joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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United States v. Arroyo, No. ACM 40321
RAMÍREZ, Judge:
A general court-martial composed of a military judge alone convicted
Appellant, consistent with her plea, of one specification of assault
consummated by a battery against LP in violation of Article 128, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 928.1 Pursuant to a plea agreement,
two specifications of sexual assault upon LP in violation of Article 120, UCMJ,
10 U.S.C. § 920, were withdrawn and dismissed with prejudice. The military
judge sentenced Appellant to a bad-conduct discharge, confinement for 37
days, and reduction to the grade of E-2. The convening authority took no action
on the findings or sentence.
Appellant raises three issues on appeal, which we reworded: whether (1)
the military judge committed plain error by admitting the victim’s unsworn
statement; (2) circuit trial counsel committed prosecutorial misconduct in his
sentencing argument; and (3) Appellant is entitled to relief because she was
not timely served a copy of the victim’s submission of matters nor was she
provided an opportunity to rebut those matters prior to the convening
authority’s decision on action.
As to Appellant’s third issue, the Government concedes error and we agree.
We find the convening authority erred by not providing Appellant the
opportunity to rebut matters submitted by the victim and that remand to the
Chief Trial Judge, Air Force Trial Judiciary, is appropriate. We defer
addressing Appellant’s other assignments of error until the record is returned
to this court for completion of its Article 66(d), UCMJ, 10 U.S.C. § 866(d),
review.
I. BACKGROUND
Appellant pleaded guilty to unlawfully touching LP on the leg with
Appellant’s hand. She was convicted and sentenced on 9 March 2022. On the
same day, the trial counsel prepared a memorandum entitled “Submission of
Matters to the Convening Authority,” which gave Appellant a deadline by
which to submit matters for the convening authority’s consideration. The
memorandum also informed Appellant that the victim would have an
opportunity to submit written matters for the convening authority’s
consideration, and that if submitted, Appellant would be forwarded a copy of
the victim’s submission so that Appellant could rebut it, if she chose to do so.
On 19 March 2022, Appellant’s trial defense counsel submitted a clemency
request asking for reduction of confinement and suspension of grade reduction.
1 All references in this opinion to the UCMJ and the Rules for Courts-Martial (R.C.M.)
are to the Manual for Courts-Martial, United States (2019 ed.).
2
United States v. Arroyo, No. ACM 40321
The request included a letter from Appellant as well as letters of support and
other attachments.
Although the date is unclear, the victim submitted a letter to the convening
authority responding to Appellant’s request. The victim explained that
Appellant “does not deserve any additional leniency for her crimes,” discussed
how much confinement would be at issue if not for the plea agreement, and
referred to Appellant as a “predator.” Appellant did not personally receive a
copy of the victim’s submission.2 As such, Appellant was not afforded the
opportunity to respond. On 12 April 2022, the convening authority issued his
decision on action; he did not grant Appellant’s requested relief.
On appeal, Appellant contends that she would have responded to the
victim’s submission of matters prior to the convening authority’s decision on
action, had she been given the opportunity to do so per Rule for Courts-Martial
(R.C.M.) 1106(d)(3). She provides specific issues that she would have raised—
including claims that the victim improperly referenced dismissed sexual-
assault specifications, improperly commented on the plea agreement, and
improperly described Appellant as a “predator.” According to Appellant, she
would have asked that the comments “be stricken and not considered by the
convening authority.”
II. DISCUSSION
A. Law
Proper completion of post-trial processing is a question of law 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 (C.A.A.F. 2000)). We review
de novo interpretations of statutes and Rules for Courts-Martial because they
are matters of law. See United States v. Valentin-Andino, 83 M.J. 537, 541 (A.F.
Ct. Crim. App. 2023) (citations omitted).
“In a case with a crime victim, after a sentence is announced in a court-
martial any crime victim of an offense may submit matters to the convening
authority for consideration in the exercise of the convening authority’s powers
under R.C.M. 1109 or 1110.” R.C.M. 1106A(a). “The convening authority shall
ensure any matters submitted by a crime victim under this subsection be
provided to the accused as soon as practicable.” R.C.M. 1106A(c)(3).
2 We note that trial defense counsel did receive a copy of the victim’s letter, but the
receipt is dated 22 July 2022 at the top of the memorandum for record (MFR) and in
the digital signatures. However, the body of the MFR states that the victim matters
were provided on 14 March 2022.
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If a crime victim submits matters under R.C.M. 1106A, “the accused shall
have five days from receipt of those matters to submit any matters in rebuttal.”
R.C.M. 1106(d)(3). “Before taking or declining to take any action on the
sentence under this rule, the convening authority shall consider matters timely
submitted under R.C.M. 1106 and 1106A, if any, by the accused and any crime
victim.” R.C.M. 1109(d)(3)(A).3 A convening authority “may not consider
matters adverse to the accused without providing the accused an opportunity
to respond.” R.C.M. 1106A(c)(2)(B), Discussion (citation omitted).
“Post-trial conduct must consist of fair play, specifically giving the
appellant ‘notice and an opportunity to respond.’” Valentin-Andino, 83 M.J. at
541 (quoting United States v. Hunter, No. 201700036, 2017 CCA LEXIS 527,
at *4 (N.M. Ct. Crim. App. 8 Aug. 2017) (unpub. op.)) “Serving victim clemency
correspondence on the accused for comment before convening authority action
protects an accused’s due process rights under the Rules for Courts-Martial
and preserves the actual and perceived fairness of the military justice system.”
Id. (internal quotation marks omitted) (quoting United States v. Bartlett, 64
M.J. 641, 649 (A. Ct. Crim. App. 2007)). Additionally, “‘the concepts of basic
fairness and procedural due process’ require service and opportunity to
comment” on victim matters submitted to the convening authority. Id. at 543
(quoting United States v. Spears, 48 M.J. 768, 775 (A.F. Ct. Crim. App. 1998),
overruled on other grounds by United States v. Owen, 50 M.J. 629, 630 (A.F.
Ct. Crim. App. 1998) (en banc)).
Where an appellant has not been provided an opportunity for rebuttal of
matters provided to the convening authority, for relief on appeal we require an
appellant to demonstrate prejudice. See id. “[W]e will not ‘speculate on what
the convening authority might have done’ if defense counsel had been given an
opportunity to comment.” Id. (quoting United States v. Chatman, 46 M.J. 321,
323 (C.A.A.F. 1997)). To demonstrate prejudice, the Appellant must “show
what [s]he would do to resolve the error if given such an opportunity.” United
States v. Wheelus, 49 M.J. 283, 288 (C.A.A.F. 1998). “If the appellant makes
such a showing, the Court of Criminal Appeals must either provide meaningful
relief or return the case to the Judge Advocate General concerned for a remand
to a convening authority for a new post-trial . . . action.” Id. at 289.4
3 R.C.M. 1109(d) has an apparent scrivener’s codification error because it includes two
paragraphs designated as paragraph (3). The first paragraph (3) addresses the
convening authority’s Consideration of matters, while the second paragraph (3)
addresses the Timing of the convening authority’s action. All references in this opinion
are to the first paragraph (d)(3) in R.C.M. 1109.
4 Although the United States Court of Appeals for the Armed Forces (CAAF) was
interpreting a different version of Article 60, UCMJ, 10 U.S.C. § 860, in United States
v. Scalo, 60 M.J. 435 (C.A.A.F. 2005), and Wheelus, the CAAF has not indicated its
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B. Analysis
The record is clear that Appellant was not provided an opportunity to
respond to the matters submitted by the victim before the convening
authority’s decision on action. The Government concedes this was error. We
find that not affording Appellant an opportunity to respond to the victim’s
submission under R.C.M. 1106A was not simply error, but a violation of
Appellant’s most basic due process rights under the Rules for Courts-Martial.
See Bartlett, 64 M.J. at 649; United States v. Kim, No. ACM 40057, 2022 CCA
LEXIS 276, at *7 (A.F. Ct. Crim. App. 9 May 2022) (unpub. op.), rev. denied, __
M.J. __, No. 23-0058, 2023 CAAF LEXIS 156 (C.A.A.F. 20 Mar. 2023); United
States v. Halter, No. ACM S32666, 2022 CCA LEXIS 9, at *8 (A.F. Ct. Crim.
App. 6 Jan. 2022) (unpub. op.), rev. denied, 83 M.J. 30 (C.A.A.F. 2022).
By articulating what Appellant would have submitted in response to the
victim’s submission, Appellant has demonstrated “what, if anything, would
have been submitted to deny, counter, or explain the new matter.” Chatman,
46 M.J. at 323. We will not speculate as to the likely efficacy of such an
approach, nor what the convening authority may have done differently, if
anything. See id. Here, “some colorable showing of possible prejudice” is
demonstrated because Appellant has articulated how she would have
responded to the victim’s submission had she been given the required
opportunity, and the convening authority had the power to grant some
clemency relief.
We conclude the relief warranted in this case is to provide Appellant with
what she is entitled to: the right to be served with the victim’s submission of
matters, and the opportunity to submit rebuttal matters for the convening
authority’s consideration before deciding whether to grant Appellant sentence
relief.
III. CONCLUSION
The record is REMANDED to the Chief Trial Judge, Air Force Trial
Judiciary, to resolve a substantial issue with the post-trial processing, as the
convening authority signed the Decision on Action memorandum prior to
Appellant being afforded five days to submit a rebuttal to the victim’s
submission of matters. Our remand returns jurisdiction to a detailed military
judge and dismisses this appellate proceeding. See JT. CT. CRIM. APP. R.
29(b)(2).
jurisprudence regarding the appropriate standard for assessing post-trial processing
error has changed. See, e.g., United States v. Miller, 82 M.J. 204, 208 (C.A.A.F. 2022)
(applying “some colorable showing of possible prejudice” standard to an asserted post-
trial processing error (quoting Scalo, 60 M.J. at 436–37)).
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A detailed military judge shall:
(1) return the record of trial to the convening authority for new
post-trial processing consistent with this opinion, specifically
affording Appellant the opportunity to respond to victim matters
already submitted under R.C.M. 1106A,5 and any additional
matters submitted under R.C.M. 1106,6 before the convening
authority takes action; and
(2) correct or modify the entry of judgment.
The detailed military judge may also conduct one or more Article 66(f)(3),
UCMJ, 10 U.S.C. § 866(f)(3), proceedings using the procedural rules for post-
trial Article 39(a), UCMJ, 10 U.S.C. § 839(a), sessions.
Thereafter, the record of trial will be returned to the court for completion
of appellate review under Article 66(d), UCMJ, 10 U.S.C. § 866(d).
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
5 “The crime victim is entitled to one opportunity to submit matters to the convening
authority under this rule.” R.C.M. 1106A(c)(2)(B).
6 In United States v. Rosenthal, our superior court held,
When a case is remanded for a new convening authority’s [(CA’s)]
action, the [CA] is not limited to considering the circumstances as they
existed at the time of the initial review. The [CA] may consider other
appropriate matters—including changes in circumstances following
the initial action on the case—for purposes of determining whether
clemency or other post-trial action is warranted.
62 M.J. 261, 262–63 (C.A.A.F. 2005) (citations omitted).
6