United States v. Miller ( 2022 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellant
v.
Chase T. MILLER,
Interior Communications Electrician Seaman
United States Navy, Appellee
No. 21-0222
Crim. App. No. 201900234
Argued December 8, 2021—Decided April 4, 2022
Military Judge: Roger E. Mattioli
For Appellant: Lieutenant Catherine M. Crochetiere, JAGC,
USN (argued); Lieutenant Colonel Christopher G. Blosser,
USMC, Major Kerry E. Friedewald, USMC, and Brian K.
Keller, Esq. (on brief); Lieutenant Colonel Nicholas L.
Gannon, USMC.
For Appellee: Lieutenant Megan E. Horst, JAGC, USN
(argued).
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge MAGGS, Judge
HARDY, and Senior Judge CRAWFORD joined.
_______________
Judge SPARKS delivered the opinion of the Court.
A military judge sitting as a special court-martial
convicted Appellee, pursuant to his pleas, of one specification
of violating a general order, three specifications of making a
false official statement, and one specification of 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 (2018). The military judge sentenced
Appellee to confinement for twelve months, reduction to E-1,
and a bad-conduct discharge. The military judge awarded
Appellee 224 days of confinement credit: 201 of those days
were for pretrial confinement and twenty-three days for
nonjudicial punishment. The military judge subsequently
awarded an additional fifteen days of credit and the
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convening authority approved the sentence subject to these
additional fifteen days of credit. The United States Navy-
Marine Corps Court of Criminal Appeals set aside the
convening authority’s action and the entry of judgment due to
premature convening authority action. The Judge Advocate
General of the Navy then certified the following issues
pursuant to Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2)
(2018):
I. Did the lower court err in finding the convening
authority abused his discretion under R.C.M. 1109 by
acting after Appellee submitted R.C.M. 1106 clemency
matters but before the military judge issued his written
post-trial ruling?
II. Did the lower court err in finding that the staff judge
advocate’s review was uninformed under R.C.M. 1109
where the review was completed after Appellee
submitted R.C.M. 1106 clemency matters and review of
the military judge’s post-trial ruling was not required
under R.C.M. 1109?
III. Did the lower court err in finding that the post-action
written ruling was a substantial omission where the
ruling was not an R.C.M. 1106 matter and nothing in
the new rules required the convening authority to
consider the ruling prior to taking action under R.C.M.
1109 even if included in the record of trial?
We answer all three certified questions in the affirmative.
Background
On May 8, 2019, Appellee’s court-martial adjourned, and
the military judge signed the Statement of Trial Results.
Appellee was then placed in a post-trial “protective custody”
status in a civilian correctional facility for thirty-three days.
On May 16, 2019, trial defense counsel discovered Appellee’s
placement in post-trial “protective custody.” The next day,
trial defense counsel submitted written clemency and deferral
requests to the convening authority. Neither clemency
request raised Appellee’s post-trial “protective custody”
status.
On June 28, 2019, Appellee submitted a post-trial motion,
in accordance with Rule for Courts-Martial (R.C.M.) 1104
(2019 ed.), to the military judge alleging illegal post-trial
confinement based on his post-trial placement in “protective
custody.” On Tuesday, July 9, 2019, the military judge held
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an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2018), session and
heard the parties’ arguments on the motion. Following the
arguments, the military judge stated he would “do [his] best
to get a ruling out to the parties hopefully Thursday, Friday
at the latest” but that he might just inform the parties of the
decision and then follow up with written findings of fact and
conclusions of law at another time. Two days later, the
military judge corrected the original Statement of Trial
Results by adding an additional fifteen days of confinement
credit.
On July 24, 2019, after considering Appellee’s written
clemency and deferral requests, the pretrial agreement, the
original and corrected Statement of Trial Results, and
consulting with the staff judge advocate, the convening
authority approved the adjudged sentence. The convening
authority’s action reflected 239 days of confinement credit,
inclusive of the fifteen days of credit included in the corrected
Statement of Trial Results.
On July 31, 2019, the military judge issued a written
ruling denying Appellee’s post-trial motion in regards to
illegal post-trial confinement. The military judge found, sua
sponte, that Appellee’s pretrial confinement conditions
violated Article 13, UCMJ, 10 U.S.C. § 813 (2018), and
awarded Appellee fifteen days of additional confinement
credit, for a total of 239 days of credit.
On appeal, the United States Navy-Marine Corps Court of
Criminal Appeals noted that the military judge’s post-trial
ruling did not exist at the time the convening authority acted.
United States v. Miller, No. NMCCA 201900234, 2021 CCA
LEXIS 59, at *3–6, 2021 WL 494852, at *2–3 (N-M. Ct. Crim.
App. Feb. 10, 2021) (per curiam) (unpublished). The lower
court determined that the military judge’s post-trial written
ruling was a substantial omission from the record at the time
of the convening authority’s action. Id. at *5–6, 2021 WL
494852, at *3. The lower court found that as a result of this
substantial omission from the record, the convening authority
was deprived of the ability to review material within his
discretion to consider, and thus to meaningfully exercise his
clemency authority. Id. at *8, 2021 WL 494852, at *3.
Further, because the military judge’s post-trial ruling did not
exist, the staff judge advocate was unable to provide an
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informed recommendation to the convening authority. Id.,2021 WL 494852, at *3. Therefore, the lower court set aside
the convening authority’s action and the entry of judgment.
Id. at *10, 2021 WL 494852, at *4.
Discussion
The third certified issue asks whether the lower court
erred in finding that the absence of the military judge’s post-
action written ruling was a substantial omission. As with all
appellate issues, it is appropriate that we first resolve the
appropriate framework of analysis.
“A complete record of the proceedings and testimony shall
be prepared . . . in each special court-martial case in which
the sentence adjudged includes a bad-conduct discharge,
confinement for more than six months, or forfeiture of pay for
more than six months.” Article 54(c)(1)(B), UCMJ, 10 U.S.C.
§ 854(c)(1)(B) (2018). “A substantial omission renders a record
of trial incomplete and raises a presumption of prejudice that
the [g]overnment must rebut.” United States v. Henry, 53 M.J.
108, 111 (C.A.A.F. 2000) (citation omitted). Whether a record
of trial is complete is a question of law we review de novo.
United States v. Davenport, 73 M.J. 373, 376 (C.A.A.F. 2014).
The charge and specifications were referred to trial after
January 1, 2019; therefore, the R.C.M. that went into effect
on January 1, 2019, were generally applicable to the post-trial
processing of Appellee’s case. See Exec. Order No. 13,825, § 5,
83 Fed. Reg. 9889, 9890 (Mar. 1, 2018). Under the old
procedural rules, the convening authority action was the final
stage before the record was forwarded to the appellate court.
In general, R.C.M. 1104(b)(1)(A) (2016 ed.) required the
government to “cause a copy of the record of trial to be served
on the accused as soon as the record of trial is authenticated.”
The accused, then, had a minimum of ten days for submission
of clemency matters. R.C.M. 1105(c)(1) (2016 ed.). Only then
could the convening authority take action. R.C.M. 1106(f)(5)
(2016 ed.).
The President made substantial changes to post-trial
processing with the 2019 R.C.M. (The relevant R.C.M. are
summarized in the Appendix to this opinion.) Under the new
procedural rules, an accused’s time line for submitting
clemency matters begins when the sentence is announced, not
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when the record of trial is served on him or her, as the accused
now has ten days from the announcement of sentence to
submit matters for convening authority review. R.C.M.
1106(d)(1) (2019 ed.). The record of trial is no longer a trigger
for the time line to submit post-trial matters by the accused.
Instead, the only restrictions to the timing of the convening
authority’s action, under the new rules, is that the convening
authority consult with the staff judge advocate and consider
any timely R.C.M. 1106 clemency matters. R.C.M. 1109(d)(2),
(3) (2019 ed.). 1 Any action by the convening authority must
occur before entry of judgment by the military judge, R.C.M.
1109(d)(3), 2 1111(e)(2) (2019 ed.), and entry of judgment must
occur before the court reporter certifies the record of trial,
R.C.M. 1112(c)(1) (2019 ed.). The convening authority’s
decision on action can occur before the record of trial is
complete. Because the convening authority was not required
to consider a complete record of trial, the nonexistence of the
military judge’s post-trial ruling at the time the convening
authority acted is more properly analyzed as a post-trial
processing error than as a substantial omission from the
record.
The standard of review for determining whether post-trial
processing was properly completed is de novo. United States
v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). R.C.M. 1104(b)(2)(B)
(2019 ed.) 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 convening
authority’s action. Trial defense counsel was served with a
copy of the convening authority’s action on July 25, 2019, but
made no motion alleging error within five days. 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
1 R.C.M. 1109(d) (2019 ed.) has an apparent 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. The
instant citation refers to the first paragraph (d)(3) in R.C.M. 1109
(2019 ed.).
2 This citation refers to the second paragraph (d)(3) in R.C.M.
1109 (2019 ed.).
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convening authority’s decision on an action, absent plain
error. 3 Plain error occurs when (1) there is error, (2) the error
is plain or obvious, and (3) the error results in material
prejudice to a substantial right of the accused. United States
v. McPherson, 81 M.J. 372, 377 (C.A.A.F. 2021). “To meet this
burden in the context of a post-trial recommendation error,
whether [the] error is preserved or is otherwise considered
under the plain error doctrine, an [accused] must make ‘some
colorable showing of possible prejudice.’ ” United States v.
Scalo, 60 MJ. 435, 436–37 (C.A.A.F. 2005) (quoting Kho, 54
M.J. at 65).
The first two certified issues question the lower court’s
underlying finding that all substantive rulings of the military
judge should exist before a staff judge advocate makes a
recommendation and the convening authority takes action.
Miller, 2021 CCA LEXIS 59, at *8–9, 2021 WL 494852, at *3.
“In determining whether to take action, or to decline taking
action under [R.C.M. 1109], the convening authority shall
consult with the staff judge advocate or legal advisor.” R.C.M.
1109(d)(2) (2019 ed.). Before taking or declining to take action
on the sentence, the convening authority shall consider
matters timely submitted by the accused, and may consider,
3 Appellee contends that he had no “meaningful opportunity” to
allege error in the convening authority’s action because the military
judge issued the post-trial ruling the same day he entered
judgment, “thereby initiating the appellate process.”
Notwithstanding the written post-trial ruling still forthcoming,
Appellee failed to object and did not move to correct the decision on
action or entry of judgment. See R.C.M. 1104(b)(1)(F) (2019 ed.)
(permitting parties to file a post-trial motion alleging “error in the
convening authority’s action under R.C.M. 1109 or 1110”); R.C.M.
1104(b)(2)(B) (2019 ed.) (“A motion to correct an error in the action
of the convening authority shall be filed within five days after the
party receives the convening authority’s action.”). The convening
authority acted on July 24, 2019, after the post-trial motion was
litigated, and before the Entry of Judgment on July 31, 2019.
Appellee had the facts at hand to allege error in the convening
authority’s action based on his failure to consider the conditions of
Appellee’s post-trial confinement. Under the facts of this case,
Appellee’s failure to file a R.C.M. 1104(b)(2)(B) (2019 ed.) motion
forfeited his right to object to the accuracy of the convening
authority’s action, absent plain error.
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inter alia, “[s]uch other matters as the convening authority
deems appropriate.” R.C.M. 1109(d)(3)(A), (B)(iv) (2019 ed.).
In United States v. Clear, 34 M.J. 129, 130 (C.M.A. 1992),
after announcing the sentence, the military judge had
recommended that the accused “be afforded an opportunity to
earn conditional suspension of the discharge.” Id. The staff
judge advocate failed to mention the military judge’s
recommendation in his initial recommendation or in the
addendum. Id. at 130–31. We held that it was generally plain
error for the staff judge advocate to “fail to call the convening
authority’s attention to a clemency recommendation made at
the time of sentencing by the military judge who has adjudged
the sentence.” Id. at 132.
Appellee contends “Clear is still important precedent
despite the removal of a mandatory written staff judge
recommendation under the Military Justice Act of 2016
because it demonstrates how this Court has dealt with a
simplification of the post-trial process before.” Appellee
argues that staff judge advocates still have an implied duty
to provide pertinent information to the convening authority.
We disagree. The recent amendments have made Clear
inapplicable because they have done away with the staff
judge advocate’s review of the record and written
recommendation. Here, the convening authority consulted
with the staff judge advocate prior to taking action. R.C.M.
1109(d)(2) (2019 ed.) places no requirement on the staff judge
advocate to review the record, or wait for a completed record.
The lower court erred in finding that the omission of the
military judge’s post-trial written ruling rendered the staff
judge advocate’s recommendation uninformed.
Relatedly, nothing in the new rules supports the lower
court’s finding that all substantive rulings of the military
judge should exist before a convening authority determines
whether to take action. Miller, 2021 CCA LEXIS 59, at *9,
2021 WL 494852, at *3. R.C.M. 1109(d)(2), (d)(3) (2019 ed.),
only requires the convening authority to consult with the staff
judge advocate and consider Appellee’s R.C.M. 1106 clemency
matters before deciding whether to act. The convening
authority considered Appellee’s written clemency and
deferral requests, neither of which raised the conditions of his
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custody, and the convening authority consulted with the staff
judge advocate before taking action.
Appellee contends that the convening authority, even
though he was not required to do so, elected to consider the
record of trial before taking action, which is within his
discretion to consider under R.C.M. 1109(d)(3)(B)(iv) (2019
ed.). Appellee is correct that it is within the convening
authority’s discretion to consider “other matters” he deems
appropriate. R.C.M. 1109(d)(3)(B)(iv) (2019 ed.). Here, the
convening authority specified the other matters in the record
he considered when acting: “Matters Considered[:] In taking
this action, I have considered the pretrial agreement of 3
April 2019, Statement of Trial Results of 8 May 2019 and
correction thereto of 11 July 2019, and the two defense
counsel letters of 17 May 2019.” The convening authority also
noted that, “[u]pon review of the record” and “[a]fter carefully
considering the record,” he denied Appellee’s requests for
deferment and clemency. Appellee argues that these latter
statements meant that the convening authority elected to
consider the entire record, which should have included his
post-trial motion and the military judge’s ruling thereon. We
disagree. In context, the convening authority’s statements
about reviewing “the record” refer to the portions of the record
listed as “Matters Considered” and no more.
Given the significant changes in the post-trial processing
system that applied to Appellee’s case, we conclude that the
convening authority’s action was not premature nor was the
staff judge advocate’s recommendation uninformed. The
record of trial is not required to be complete at this stage of
post-trial processing. Appellee had the right to submit
clemency matters, and the convening authority must, and
did, consider the clemency matters. If Appellee wanted to
ensure that the convening authority considered his post-trial
confinement conditions, the appropriate place was to include
it in his clemency request or to have filed a post-trial motion
within five days of receiving the convening authority’s action.
He did not do so. Therefore, there is no error for us to correct. 4
4 Appellee also argues that the convening authority committed
plain error when he approved fifteen days of confinement credit
that the military judge had not yet awarded. Such a claim is outside
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Decision
We answer the three certified questions in the affirmative.
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed and the record of trial is
returned to the Judge Advocate General of the Navy for
remand to the Court of Criminal Appeals for further
proceedings under Article 66, UCMJ, 10 U.S.C. § 866 (2018).
the scope of the certified issues. Nonetheless, whether or not the
convening authority committed plain error, the error was not
prejudicial because the convening authority’s action resulted in
Appellee’s release from custody fifteen days early.
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Appendix
Rules for Courts-Martial (2019 ed.)
Rules for R.C.M. 1106(d)(1): “General and special
Submitting courts-martial. After a trial by general or
Clemency special court-martial, the accused may
Matters submit matters to the convening authority
under this rule within ten days after the
sentence is announced.”
R.C.M. 1106(d)(4)(A): “If, within the [ten-
day window], the accused shows that
additional time is required for the accused
to submit matters, the convening authority
may, for good cause, extend the period for
not more than 20 days.”
R.C.M. 1106(e)(1): “Failure to submit
matters. Failure to submit matters within
the time prescribed by this rule waives the
right to submit such matters.”
Rules for R.C.M. 1109(d)(2): “Legal advice. In
When and determining whether to take action, or to
How the decline taking action under this rule, the
Convening convening authority shall consult with the
Authority staff judge advocate or legal advisor.”
May Take
Action R.C.M. 1109(d)(3)(A): “Matters submitted
by accused and crime victim. 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)(B): “Additional
Matters. Before taking action the
convening authority may consider—
(i) The Statement of Trial Results;
(ii) The evidence introduced at the court-
martial, any appellate exhibits, and the
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recording or transcription of the
proceedings . . . ;
(iii) The personnel records of the accused;
and
(iv) Such other matters as the convening
authority deems appropriate.”
R.C.M. 1109(d)[4]: “Timing. . . . [A]ny
action taken by the convening authority
under this rule shall be taken prior to
entry of judgment.”
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