United States v. McAlhaney ( 2023 )

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
William C. McALHANEY, Airman Basic
United States Air Force, Appellant
No. 22-0170
Crim. App. No. 39979
Argued November 8, 2022—Decided March 24, 2023
Military Judge: Elizabeth M. Hernandez
For Appellant: Major Eshawn R. Rawlley (argued);
Major David L. Bosner and Mark C. Bruegger, Esq.
For Appellee: Major Jay S. Peer (argued); Colonel
Naomi P. Dennis, Lieutenant Colonel Matthew J.
Neil, and Mary Ellen Payne, Esq. (on brief); Major
Brittany M. Speirs.
Judge SPARKS delivered the opinion of the Court,
in which Chief Judge OHLSON, Judge MAGGS,
Judge HARDY, and Senior Judge STUCKY joined.
_______________
United States v. McAlhaney, No. 22-0170/AF
Opinion of the Court
Judge SPARKS delivered the opinion of the Court.
Appellant argues that the United States Air Force
Court of Criminal Appeals erred in applying a plain error
standard of review to the question of whether the adjudged
reprimand was appropriate as written as part of its
sentence appropriateness review under Article 66(d)(1),
Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 866(d)(1) (2018). We agree, and therefore set aside the
lower court’s decision and remand the case for a new
Article 66(d)(1), UCMJ, review.
I. Background
The lower court summarized the relevant background
as follows:
Appellant began communicating with 15-year-
old NC using the Snapchat and iMessage
applications prior to entering active duty. NC told
Appellant she was 15 years old. Appellant and NC
stopped communicating while Appellant was in
basic military training (BMT) but resumed after
he arrived at Sheppard Air Force Base (AFB),
Texas, for technical school. In January 2019,
Appellant asked whether NC would send him a
nude photograph or video of herself. Appellant
paid $30.00 to NC for a short video of NC having
sex with a 17-year-old male that Appellant did not
know. Appellant received and viewed the video.
Appellant also communicated with ST before
leaving for BMT. ST told Appellant that she was
15 years old. Appellant asked ST “whether she
enjoyed masturbating with a hairbrush,” offered
to buy her a sex toy, and asked if she would let
him see her using the sex toy. Appellant asked ST
for a nude photograph, and ST sent him a
photograph of her genitals with a wooden
hairbrush penetrating her vulva.
United States v. McAlhaney, No. ACM 39979, 2022 CCA
LEXIS 135, at *2-3, 2022 WL 600800, at *1 (A.F. Ct. Crim.
App. Feb. 28, 2022) (unpublished) (footnotes omitted).
A military judge sitting as a general court-martial
found Appellant guilty, consistent with his pleas, of one
2
United States v. McAlhaney, No. 22-0170/AF
Opinion of the Court
specification of wrongful receipt of child pornography and
one specification of wrongful possession and viewing of
child pornography, both in violation of Article 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2018).
The military judge sentenced Appellant to a bad-conduct
discharge, confinement for three months, and a reprimand.
After reviewing Appellant’s clemency matters and
consulting with her staff judge advocate, the convening
authority signed a Convening Authority Decision on Action
memorandum. In the Decision on Action, the convening
authority stated: “I take no action on the findings in this
case,” and “I take no action on the sentence in this case.”
Following these statements, the Decision on Action set out
the wording for Appellant’s reprimand, which stated:
Your decision to wrongfully view and possess child
pornography promoted the abuse and harm of
children, and furthered the criminal enterprise of
human sex trafficking, which is directly linked to
child pornography. Your conduct has no place
within the Armed Force [sic] or society at large.
Be warned, further misconduct will result in
additional criminal liability.
In relevant part, on appeal to the lower court, Appellant
challenged the language in the reprimand as being “unduly
severe, inflammatory, inaccurate, and unsupported by the
evidence in the record.” 2022 CCA LEXIS 135, at *9, 2022
WL 600800, at *4 (internal quotation marks omitted).
Appellant contended that the errors in the reprimand
made his sentence inappropriately severe. Id. at *2, 2022
WL 600800, at *1.
Stating that it conducts a de novo review of the sentence
under Article 66(d)(1), UCMJ, as part of its responsibility
to decide sentence appropriateness, the lower court
appears to have found that adjudging a reprimand as a
punishment was not overly severe. Id. at *10-12, 2022 WL
600800, at *4-5. Next, the lower court noted that because
Appellant failed to object to the language used in the
reprimand prior to his appeal, it would consider “whether
the reprimand was factually inaccurate such that it
constituted plain or obvious error.” Id. at *12, 2022 WL
3United States v. McAlhaney, No. 22-0170/AF
Opinion of the Court
600800, at *5. In a footnote, the lower court explained that
Appellant’s failure to file a post-trial motion under Rule for
Courts-Martial (R.C.M.) 1104(b)(2)(B) (2019 ed.), forfeited
his right to object to the factual accuracy of the reprimand,
absent plain error. 1 2022 CCA LEXIS 135, at *14 n.11,
2022 WL 600800, at *6 n.11. Ultimately, the lower court
found no plain error in any of the challenged statements in
the reprimand. Id. at *14-16, 2022 WL 600800, at *6. The
lower court affirmed the findings and sentence. Id. at *16,
2022 WL 600800, at *6. We then granted review of the
following issue:
Did the lower court err by applying plain error
review in considering a question of sentence
appropriateness, to wit: whether the wording of
the reprimand rendered Appellant’s sentence
inappropriately severe?
United States v. McAlhaney, 82 M.J. 419, 419-20 (C.A.A.F.
2022) (order granting review).
II. Standard of Review and Governing Law
The scope, applicability, and meaning of Article 66(d),
UCMJ, is a matter of statutory interpretation that we
review de novo. United States v. Gay, 75 M.J. 264, 267
(C.A.A.F. 2016). The Court of Criminal Appeals “may
affirm only such findings of guilty, and the sentence or such
part or amount of the sentence” as they find “correct in law
and fact,” and which they determine “on the basis of the
entire record, should be approved.” Article 66(d)(1), UCMJ.
These three components of the lower court’s Article 66(d),
UCMJ, authority are commonly referred to as legal
sufficiency (“correct in law”), factual sufficiency (“correct in
. . . fact”), and sentence appropriateness (“may affirm only
. . . such part or amount of the sentence, as [it] . . .
determines, on the basis of the entire record, should be
approved”). Under Article 66(d), UCMJ, the Court of
Criminal Appeals conducts a de novo review of the record
1The lower court cited R.C.M. 1104(d)(2)(B), but both parties
and this Court agree that this was a scrivener’s error, and the
lower court intended to cite R.C.M. 1104(b)(2)(B).
4
United States v. McAlhaney, No. 22-0170/AF
Opinion of the Court
for legal sufficiency, factual sufficiency, and sentence
appropriateness. United States v. Lane, 64 M.J. 1, 2
(C.A.A.F. 2006).
A reprimand is among the punishments that a court-
martial may adjudge as an authorized sentence. R.C.M.
1003(b)(1). “A court-martial shall not specify the terms or
wording of a reprimand.” Id. If imposed, the reprimand
“shall be issued, in writing, by the convening authority.”
Id. “A reprimand adjudged by a court-martial is a punitive
censure.” R.C.M. 1003(b)(1) Discussion.
R.C.M. 1104 provides an opportunity for either party to
file a post-trial motion to address, among other matters,
“[a]n1104 allegation of error in the convening authority’s
action under R.C.M. 1109 or 1110.” R.C.M. 1104(b)(1)(F).
Parties have five days after receiving the convening
authority’s action to file a post-trial motion alleging “error
in the action of the convening authority.” R.C.M.
1104(b)(2)(B). “An accused’s failure to file a post-trial
motion within the allotted time forfeits his or her right to
object to the accuracy of the convening authority’s decision
on an action, absent plain error.” United States v. Miller,
82 M.J. 204, 207 (C.A.A.F. 2022).
III. Discussion
As an initial matter, Appellant’s failure to object to the
factual language in the reprimand in a post-trial motion
did not forfeit this issue. We presume that the lower court
based its forfeiture finding on the convening authority
issuing the reprimand through the action memorandum.
However, issuing the reprimand through the action
memorandum did not make the reprimand an “error in the
convening authority’s action,” which first must be
addressed via a post-trial motion to preserve an appellate
challenge pursuant to R.C.M. 1104(b)(1)(F). The lower
court appears to have conflated the action and the issuance
of a written reprimand. While it is true that convening
authorities typically issue the reprimand via the same
instrument as the action, nonetheless, there is no rule
requiring these two acts to be effectuated via the same
5
United States v. McAlhaney, No. 22-0170/AF
Opinion of the Court
instrument or even at the same time. R.C.M. 1109 and
R.C.M. 1110, which govern post-trial convening authority
actions, do not require that a convening authority issue the
written reprimand with its action. Similarly, R.C.M.
1003(b)(1) governing reprimands makes no mention of
action, or any other instrument, by which the convening
authority shall issue a reprimand, specifying only that a
reprimand shall be issued in writing. R.C.M. 1104(b)(1)(F)
addresses “[a]n allegation of error in the convening
authority’s action under R.C.M. 1109 or 1110.” Because
R.C.M. 1109 and R.C.M. 1110 do not require that a
convening authority issue the written reprimand with its
action, we conclude that R.C.M. 1104(b)(1)(F) is not meant
to address inappropriately severe reprimand challenges
under Article 66(d), UCMJ.
The Government, nonetheless, argues that the lower
court applied the proper de novo standard to its Article
66(d)(1), UCMJ, review of whether Appellant’s reprimand
was appropriate. The Government admits that whether the
lower court erred by applying plain error review in
considering the legal or factual correctness of Appellant’s
reprimand is “debatable.” The Government contends,
however, that the standard of review the lower court
applied to the factual correctness question does not matter
to our analysis of the granted issue, because the lower court
had already reviewed the sentence appropriateness of
Appellant’s reprimand using the correct de novo standard.
We disagree with the Government. Although there is no
prior case law discussing whether a challenge to the
wording of the adjudged reprimand is reviewed by the
lower court for legal sufficiency, factual sufficiency, or
sentence appropriateness, we note that under any of these
legal umbrellas, the appropriate standard of review is de
novo. Lane, 64 M.J. at 2. It appears from our review of the
lower court’s opinion that the lower court conducted a two-
pronged analysis of the reprimand. First, the lower court
reviewed de novo whether sentencing Appellant to a
reprimand was overly severe. McAlhaney, 2022 CCA
LEXIS 135, at *10-12, 2022 WL 600800, at *4-5. The lower
6
United States v. McAlhaney, No. 22-0170/AF
Opinion of the Court
court then reviewed for plain error whether the language
used in the reprimand was factually accurate. Id. at *12,
2022 WL 600800, at *5.
The lower court erred to the extent it separated
Appellant’s allegation of error in the reprimand into two
issues. Because a reprimand is a component of an adjudged
sentence, Appellant’s challenge to the reprimand, both
generally and as written, implicated sentence
appropriateness which is reviewed de novo. Lane, 64 M.J.
at 2. The lower court failed to analyze whether the
reprimand was appropriate, as written, under the proper
de novo standard of review. To ensure that Appellant was
not prejudiced by the lower court’s seemingly erroneous
view of the law, we set aside the lower court’s opinion and
remand the case for a new Article 66(d), UCMJ,
determination using the correct de novo standard of
review. We express no view as to how the new review
should be resolved. That is a matter committed to the
discretion of the lower court.
IV. Conclusion
The decision of the United States Air Force Court of
Criminal Appeals is affirmed as to the findings and set
aside as to the sentence. The case is returned to the Judge
Advocate General of the Air Force for remand to the United
States Air Force Court of Criminal Appeals for a new
review, consistent with this opinion, under Article 66(d)(1),
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(d)(1) (2018).
7