United States v. Haynes ( 2023 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 40306
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UNITED STATES
Appellee
v.
Branden C. HAYNES
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 30 August 2023
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Military Judge: Wesley A. Braun (pre-referral judicial proceeding); 1
Matthew P. Stoffel (pretrial motions); Christina M. Jimenez (arraign-
ment); Colin P. Eichenberger (trial and post-trial corrective actions).
Sentence: Sentence adjudged 31 March 2022 by GCM convened at Nellis
Air Force Base, Nevada. Sentence entered by military judge on 8 June
2022: Bad-conduct discharge, confinement for 4 months, forfeiture of all
pay and allowances, and reduction to E-1.
For Appellant: Major Alexandra K. Fleszar, USAF; Major Nicole J. Her-
bers, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Captain
Olivia B. Hoff, USAF; Mary Ellen Payne, Esquire.
Before RICHARDSON, ANNEXSTAD, and DOUGLAS, Appellate Mili-
tary Judges.
Judge DOUGLAS delivered the opinion of the court, in which Senior
Judge RICHARDSON and Senior Judge ANNEXSTAD joined.
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1 Pursuant to Article 30a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 830a.
United States v. Haynes, No. ACM 40306
This is an unpublished opinion and, as such, does not serve as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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DOUGLAS, Judge:
A general court-martial composed of a military judge sitting alone con-
victed Appellant, in accordance with his pleas and pursuant to a plea agree-
ment, of one charge with two specifications of willful dereliction of duty by fail-
ing to refrain from committing sexual harassment, in violation of Article 92,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892.2 The adjudged sen-
tence was a bad-conduct discharge, confinement for four months, forfeiture of
all pay and allowances, and reduction to the grade of E-1. Appellant requested
clemency, but the convening authority took no action on the sentence.
Appellant raises two issues on appeal, which we have reworded: (1)
whether his sentence is inappropriately severe; and (2) whether he is entitled
to relief because he was not served timely a copy of the victims’ submission of
matters pursuant to Rules for Courts-Martial (R.C.M.) 1106A, and conse-
quently, was not provided an opportunity to rebut those matters prior to the
convening authority’s decision on action. We find the convening authority erred
by not affording Appellant the opportunity to rebut both victims’ matters be-
fore making his decision on action. We determine that remand to the Chief
Trial Judge, Air Force Trial Judiciary, is appropriate. We defer addressing Ap-
pellant’s assignment of error regarding sentence severity until the record is
returned to this court for completion of our Article 66(d), UCMJ, 10 U.S.C.
§ 866(d), review.
I. BACKGROUND
Appellant pleaded guilty pursuant to a plea agreement and was convicted
and sentenced on 31 March 2022. Appellant was found guilty of offenses
against two separate victims—KA and SM. Appellant was ordered to serve the
adjudged confinement at Nellis Air Force Base, Nevada, where he had been
stationed and tried.
Appellant’s clemency submission as well as each victim’s R.C.M. 1106A
matters were due contemporaneously on 10 April 2022. KA’s submission of
matters was dated 4 April 2022; Appellant’s defense counsel receipted for it on
8 April 2022. SM’s submission of matters was dated 8 April 2022. Although the
2 Unless otherwise noted, all references in this opinion to the UCMJ and to the Rules
for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019
ed.).
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United States v. Haynes, No. ACM 40306
defense counsel receipt for SM’s matters included a statement that these mat-
ters were “delivered to [him] this 18th day of April 2022,” trial defense counsel
did not sign the receipt for SM’s matters until 3 June 2022. The record does
not support that Appellant personally received the victims’ matters.3
On 9 April 2022, Appellant’s defense counsel submitted matters in clem-
ency requesting the convening authority reduce the adjudged confinement
from four months to two months. Defense counsel attached three memoranda
to the written request: the unsworn statement provided by Appellant during
his pre-sentencing hearing, and two post-sentencing character letters request-
ing leniency on behalf of Appellant.
On 28 April 2022, the convening authority took no action on the findings or
the sentence. In the Decision on Action memorandum, the convening authority
stated that he “considered matters timely submitted by the accused under
R.C.M. 1106 and the victims under R.C.M. 1106A.” However, the record pro-
vides no specific explanation of precisely what the convening authority re-
viewed prior to decision on action. The military judge entered judgment on 8
June 2022. Appellant did not file a post-trial motion pursuant to R.C.M.
1104(b)(2) alleging that the convening authority erred.
According to Appellant,4 he saw the victims’ post-trial submissions for the
first time after receiving the record of trial on 16 June 2022. He allows that his
trial defense counsel may have discussed with him the matters KA submitted,
but not the matters SM submitted. Appellant contends that he would have
submitted matters in rebuttal to both victims’ submission of matters prior to
the convening authority’s decision on action, had he seen their statements.
More specifically, he declares he would have countered their post-trial submis-
sions with evidence of his high potential for rehabilitation and would have
asked the convening authority to consider the record of trial, including all that
he had submitted in his sentencing hearing, which were not included in his
request for clemency.
3 We note that the memorandum notifying Appellant of his right to submit matters to
the convening authority, signed by trial counsel and acknowledged by Appellant, states
in paragraph 7, “Any matters submitted by a victim will be forwarded to you so that
you may rebut them, if you so choose.”
4 On 6 July 2023, we granted Appellant’s unopposed motion to attach his post-trial
declaration, dated 28 June 2023, relating to whether he was given an opportunity to
respond to R.C.M. 1106A matters prior to the convening authority’s decision on action
in his case.
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United States v. Haynes, No. ACM 40306
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. See United
States v. Valentin-Andino, 83 M.J. 537, 541 (A.F. Ct. Crim. App. 2023) (cita-
tions 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 pro-
vided to the accused as soon as practicable.” R.C.M. 1106A(c)(3).
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”
to the convening authority. 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).5
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). Additionally, “[t]he convening
authority may not consider matters adverse to the accused that were not ad-
mitted at the court-martial, with knowledge of which the accused is not charge-
able, unless the accused is first notified and given an opportunity to rebut.”
R.C.M. 1109(d)(3)(C)(i).
“Post-trial conduct must consist of fair play, specifically giving the appel-
lant ‘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 cor-
respondence 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.”
5 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 con-
vening 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.
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United States v. Haynes, No. ACM 40306
Id. (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 (A.F. Ct. Crim. App. 1998) (en banc)).
“R.C.M. 1104(b)(2)(B) provides that either party may file a post-trial motion
within five days of receiving the convening authority’s action to address an
asserted error in the . . . action.” United States v. Miller, 82 M.J. 204, 207
(C.A.A.F. 2022).
Where an appellant had 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 Valentin-Andino, 83 M.J. at 543. “[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)). Further, the Appellant must
show what 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 289.6 A conven-
ing authority has authority to reduce a term of confinement that is six months
or less, pursuant to Article 60a(b)(2), UCMJ, 10 U.S.C. § 860a(b)(2).
B. Analysis
The record is clear that Appellant was not provided an opportunity to rebut
the matters submitted by at least one, if not both, victims in his case prior to
the convening authority’s decision on action. When a convening authority
simply serves a victim’s R.C.M 1106A matters upon defense counsel, and not
personally to the appellant, and without some indicia of his right to rebut those
matters, the convening authority assumes risks. The risks created include not
only the perception of intentional avoidance of the Government’s responsibility
to serve R.C.M. 1106A matters on an appellant, who determines whether re-
buttal is warranted, but also creates a self-imposed challenge to advising the
convening authority whether a decision on action is ripe. In this case, the con-
vening authority failed to ensure Appellant was informed of at least one of two,
6 Although the United States Court of Appeals for the Armed Forces (CAAF) was in-
terpreting 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 juris-
prudence regarding the appropriate standard for assessing post-trial processing error
has changed.
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United States v. Haynes, No. ACM 40306
if not both, R.C.M. 1106A matters received for his consideration before making
his decision on action. Not affording an appellant an opportunity to respond to
victims’ submissions under R.C.M. 1106A is a violation of an appellant’s most
basic due process rights under the Rules for Courts-Martial.
We decline the Government’s request to apply forfeiture and a plain error
standard of review when Appellant did not file a post-trial motion under
R.C.M. 1104(b) for two related reasons: (1) the error was not evident in the
convening authority’s decision on action;7 and (2) the time to file a post-trial
motion had long since expired by the time Appellant became aware that the
convening authority was specifically provided two R.C.M. 1106A matters.
Here, the failure to serve the victims’ matters on Appellant is a post-trial pro-
cessing issue which we review de novo.
Appellant has articulated how he would have responded to the victims’ sub-
missions had he been given the required opportunity; Appellant’s rebuttal
would have been different from his initial clemency submission; and the con-
vening authority could have granted some clemency relief. We conclude the
relief warranted in this case is to provide Appellant with what he is entitled
to: the opportunity to submit rebuttal to his victims’ matters for the convening
authority’s consideration before the convening authority makes a decision on
action.
III. CONCLUSION
The record is REMANDED to the Chief Trial Judge, Air Force Trial Judi-
ciary, to resolve a substantial issue with the post-trial processing, as the con-
vening authority signed the Decision on Action memorandum prior to Appel-
lant receiving and being afforded five days to submit a rebuttal to both SM’s
and KA’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).
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 af-
fording Appellant the full opportunity to respond to victim
7 The convening authority’s decision on action in this case followed a common template,
which avoided stating whether any matters were timely submitted and therefore con-
sidered. As such, Appellant could not recognize error and therefore was not obliged to
request correction under R.C.M. 1104(b).
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United States v. Haynes, No. ACM 40306
matters already submitted under R.C.M. 1106A,8 and any addi-
tional matters submitted under R.C.M. 1106,9 before the conven-
ing 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
8 “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).
9 In United States v. Rosenthal, our superior court held,
When a case is remanded for a new convening authority’s [(CA’s)] ac-
tion, 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).
7