United States v. Lamore ( 2021 )


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  •  This opinion is subject to administrative correction before final disposition.
    Before
    GASTON, STEWART, and HOUTZ
    Appellate Military Judges
    _________________________
    UNITED STATES
    Appellee
    v.
    Michael T. LAMORE
    Seaman Recruit (E-1), U.S. Navy
    Appellant
    No. 201900315
    Decided: 20 April 2021
    Appeal from the United States Navy-Marine Corps Trial Judiciary
    Military Judge:
    Ryan J. Stormer
    Sentence adjudged 19 June 2019 by a general court-martial convened
    at Naval Station Great Lakes, Illinois, consisting of a military judge
    alone. Sentence approved by the convening authority: confinement for
    five years and a dishonorable discharge. 1
    For Appellant:
    Lieutenant Gregory Hargis, JAGC, USN
    Lieutenant Megan E. Horst, JAGC, USN
    1  The convening authority suspended confinement in excess of three years pursu-
    ant to a pretrial agreement.
    United States v. Lamore, NMCCA No. 201900315
    Opinion of the Court
    For Appellee:
    Lieutenant Kevin G. Edwards, JAGC, USN
    Major Clayton L. Wiggins, USMC
    _________________________
    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 plea, of sexual assault
    in violation of Article 120, Uniform Code of Military Justice [UCMJ], 
    10 U.S.C. § 920
    .
    Appellant asserts two assignments of error [AOEs]: (1) that sentence re-
    lief should be granted in light of the conditions of Appellant’s post-trial
    custody; and (2) that there was a substantial omission in the record of trial
    that created a presumption of prejudice that the Government did not rebut.
    We find no prejudicial error and affirm.
    I. BACKGROUND
    Pursuant to a pretrial agreement, Appellant pleaded guilty and was con-
    victed of one specification of sexually assaulting the victim, Ms. Sierra. 2 The
    charge stems from Ms. Sierra’s report to the Antioch, Illinois, police in July
    2018 that several months before Appellant had met her at a park in Antioch,
    forced her into a portable toilet, and sexually assaulted her. After an investi-
    gation, Antioch authorities declined to prosecute. The Naval Criminal Inves-
    tigative Service then assumed investigative jurisdiction, and Appellant was
    placed in pretrial confinement.
    During his pretrial confinement at two civilian jails, Appellant was co-
    mingled with post-trial inmates. As part of the pretrial agreement, the
    convening authority agreed Appellant would receive an additional 15 days’
    confinement credit, and Appellant agreed not to raise a motion for confine-
    2  All names in this opinion, other than those of Appellant, the judges, and coun-
    sel, are pseudonyms.
    2
    United States v. Lamore, NMCCA No. 201900315
    Opinion of the Court
    ment credit for violation of Rule for Courts-Martial [RCM] 305 and Articles
    12 and 13, UCMJ, and to withdraw the motion he had previously filed with
    the trial court.
    After his conviction and sentencing, Appellant was returned to a civilian
    correctional facility, where he was placed in a “protective custody” status.
    The conditions of this status included housing Appellant in a single-
    occupancy cell in a general population pod, not allowing him to comingle with
    other prisoners, and allowing him one hour outside the cell each day when he
    could use a phone, have video visitation, access entertainment and the
    commissary, and use the showers. This status lasted for 13 days until Appel-
    lant, after speaking with his defense counsel, complained about the situation,
    and the facility was notified that placing Appellant in protective custody was
    not in accordance with Navy policy and the contract between the Navy and
    the correctional facility. Appellant was transferred to the prison’s general
    population that same day.
    Thereafter, Appellant filed a post-trial motion for additional confinement
    credit on grounds of illegal post-trial punishment, arguing that the protective
    custody was “inappropriately severe.” The Government responded to the
    motion and included an affidavit from the correctional facility outlining the
    conditions of the protective custody.
    The military judge ruled on Appellant’s motion without a post-trial Arti-
    cle 39(a), UCMJ, session. In his written ruling the military judge made
    findings of fact consistent with the conditions listed in the affidavit from the
    correctional facility. He concluded that while Appellant’s protective custody
    did not rise to the level of an Eighth Amendment or Article 55, UCMJ,
    violation, “[n]o legitimate government purpose or objective was served by
    placing [Appellant] in [protective custody] post-trial.” 3 He nevertheless
    denied the motion, concluding he did not have the authority to award con-
    finement credit for such post-trial confinement issues.
    The military judge’s written ruling was made part of the authenticated
    record of trial; however, the post-trial filings by Appellant and the Govern-
    ment on the issue were not attached to the record and thus were omitted
    from the post-trial review process. After the convening authority’s action, 4
    3   App. Ex. XLIII at 6.
    4 The convening authority did not act until 149 days after Appellant’s sentencing
    due, in large part, to the delay between the submission of the post-trial motion and
    the military judge’s ruling.
    3
    United States v. Lamore, NMCCA No. 201900315
    Opinion of the Court
    and once the case was docketed for appellate review by this Court, we grant-
    ed the Government’s motion to attach the post-trial filings by Appellant and
    the Government to the record.
    II. DISCUSSION
    A. Post-Trial Custody and Sentence Relief
    Appellant asserts that sentence relief should be granted in light of the
    conditions of his post-trial custody. We review sentence appropriateness de
    novo. 5
    A court of criminal appeals [CCA] “may affirm only . . . such part or
    amount of the sentence, as it finds correct in law and fact and determines, on
    the basis of the entire record, should be approved.” 6 This statutory grant of
    authority gives us significant discretion in reviewing the appropriateness of
    an approved sentence to ensure “that justice is done and that the accused
    gets the punishment he deserves.” 7 As “[c]onfinement conditions may very
    well alter an accused’s punishment into something worse than he deserves,” 8
    we may “consider post-trial confinement conditions . . . even where the
    allegations do not rise to the level of an Eighth Amendment or Article 55,
    UCMJ, violation.” 9 However, our superior court has found that CCAs may not
    grant clemency, 10 and do not have “unlimited authority . . . to grant sentence
    appropriateness relief for any conditions of post-trial confinement of which
    they disapprove,” but rather, the exercise of discretion in this area must be
    based on a “legal error or deficiency.” 11
    1. Legal error or deficiency
    In Gay II, our superior court affirmed the CCA’s reliance on Article 66(c),
    UCMJ, to find a sentence inappropriate where the appellant was placed in
    5   See United States v. Baier, 
    60 M.J. 382
    , 383–84 (C.A.A.F. 2005).
    6   UCMJ, Article 66(c), 
    10 U.S.C. § 866
    (c).
    7   United States v. Healy, 
    26 M.J. 394
    , 395 (C.M.A. 1988).
    8   United States v. Jacinto, 
    79 M.J. 870
    , 891 (N-M. Ct. Crim. App. 2020).
    9 United States v. Gay [Gay I], 
    74 M.J. 736
    , 743 (A.F. Ct. Crim. App. 2015), aff’d,
    United States v. Gay [Gay II], 
    75 M.J. 264
     (C.A.A.F. 2016).
    10   United States v. Nerad, 
    69 M.J. 138
    , 146 (C.A.A.F. 2010).
    11   Gay II, 75 M.J. at 268-69.
    4
    United States v. Lamore, NMCCA No. 201900315
    Opinion of the Court
    solitary confinement through no fault of his own. 12 The CCA supported its
    determination by acknowledging:
    (1) there was no valid reason for placing [the appellant] in soli-
    tary confinement; (2) avoiding additional Article 12 violations
    was not an acceptable reason to place him in solitary confine-
    ment; (3) the assertion that an Air Force official directed that
    [the appellant] be placed in solitary was unrebutted; and,
    (4) [the appellant] was easily transferred to a pod that did not
    house foreign nationals once his unit complained of his treat-
    ment. 13
    The court found that “[t]hese reasons evidence[d] a legal deficiency in the
    post-trial conditions to which [the appellant] was subjected.” 14
    Similar to the facts in Gay II, Appellant’s post-trial confinement condi-
    tions evidence a legal error or deficiency. The record shows that (1) Appellant
    was placed in protective custody at the civilian facility due to no fault of his
    own; (2) placing Appellant in post-trial protective custody was both unneces-
    sary and resulted in him being treated differently than civilian prisoners; 15
    and (3) Appellant was easily transferred to the general population once he
    complained. Under these circumstances, we agree with the military judge’s
    conclusion that “[n]o legitimate government purpose or objective was served
    by placing [Appellant] in [protective custody] post-trial.” 16
    2. Exhaustion of administrative remedies
    Generally, “[a] prisoner must seek administrative relief prior to invoking
    judicial intervention to redress concerns regarding post-trial confinement
    12   Gay II, 75 M.J. at 268.
    13   Id. (citations omitted).
    14   Id.
    15 See UCMJ art. 58, 
    10 U.S.C. § 858
     (2019) (establishing that “[p]ersons . . . con-
    fined in a penal or correctional institution not under the control of one of the armed
    forces are subject to the same discipline and treatment as persons confined or
    committed by the courts of the United States or of the State, District of Columbia, or
    place in which the institution is situated.”); Gay II, 75 M.J. at 269 n.6 (finding the
    CCA could have found legal error on that basis).
    16   App. Ex. XLIII at 6.
    5
    United States v. Lamore, NMCCA No. 201900315
    Opinion of the Court
    conditions.” 17 “Absent some unusual or egregious circumstance this means
    that the prisoner has exhausted the prisoner grievance system in his deten-
    tion facility and that he has petitioned for relief under Article 138, UCMJ.” 18
    In this case, while the record does not indicate that Appellant used the
    correctional facility’s formal grievance system or Article 138, UCMJ, he did
    call attention to the issue of his protective custody status, which the correc-
    tional facility then acknowledged and corrected. At that point there is no
    evidence the grievance process or Article 138 would have provided Appellant
    any further meaningful relief and because the facility’s corrective action left
    nothing remaining to “exhaust.” Instead, Appellant elected to avail himself of
    the trial court’s continuing, pre-authentication jurisdiction and seek redress
    through a post-trial motion, which thoroughly developed the record to allow
    this Court to review the issue. 19 Thus, unlike in United States v. Wise, 20
    United States v. Wagers, 21 and United States v. Jacinto, 22 the issue of Appel-
    lant’s post-trial confinement conditions was litigated before the trial court,
    and the military judge made specific findings of fact and conclusions that
    allow this Court to review whether the conditions of Appellant’s post-trial
    confinement resulted in the sentence being inappropriately severe. Accord-
    ingly, because the issue of his post-trial confinement was litigated and the
    record adequately developed, this Court will review sentence appropriateness
    in light of the conditions of his post-trial custody.
    3. Sentence relief
    We find that Appellant’s post-trial confinement conditions were not so
    egregious as to merit relief. In Gay II, cited by Appellant, the Court deter-
    mined that sentencing relief was appropriate, in part, because solitary
    confinement was ordered by Air Force officials in an effort to avoid an Article
    17 United States v. Wise, 
    64 M.J. 468
    , 469 (C.A.A.F. 2007) (citing United States v.
    White, 
    4 M.J. 469
    , 472 (C.A.A.F. 2001)); see also Jacinto, 79 M.J. at 891.
    18   Wise, 64 M.J. at 469.
    19In fact, the record in this case contains arguably much more information that it
    would have if Appellant had simply attached a “grievance chit” and a summary of the
    remedy to the record.
    20   
    64 M.J. 468
     (C.A.A.F. 2007).
    21 No. 201600180, 
    2017 CCA LEXIS 112
    , at *14 (N-M. Ct. Crim. App. Feb. 23,
    2017) (unpublished).
    22   
    79 M.J. 870
    , 890 (N-M. Ct. Crim. App. 2020).
    6
    United States v. Lamore, NMCCA No. 201900315
    Opinion of the Court
    12, UCMJ, violation. 23 In this case Appellant was placed in protective custody
    due to the civilian prison officials’ misunderstanding of the facility’s contract
    with the Navy, not due to an intentional order from the military. Appellant’s
    confinement conditions were also significantly less restrictive than those of
    the appellant in Gay II, where the appellant’s conditions included being
    stripped and searched, placed in shackles, and denied phone calls and visita-
    tion. None of those conditions is present in this case. While during this 13-
    day period Appellant could not comingle with other inmates and received less
    time outside of his cell, he was provided a day room outside of his cell with
    windows; use of a phone whenever outside his cell; video visits with family
    and friends when outside his cell; no restraints; access to entertainment; a
    regular meal schedule with food similar to other inmates’; and access to a
    single-use shower. We find these conditions, while not identical to those in
    general population, do not rise to the conditions the court in Gay II found
    warranted relief. Here, we conclude sentencing relief is not warranted and
    would amount to an inappropriate grant of clemency.
    B. Substantial Omission and Prejudice
    Appellant asserts the record of trial is incomplete, as the military judge
    failed to attach the Defense post-trial motion, the Government response, and
    the evidence attached to both. Whether a record of trial is incomplete is a
    question of law which we review de novo.24
    Article 54, UCMJ, requires a “complete record of proceedings” in any case
    resulting in a discharge. 25 “The requirement that a record of trial be complete
    and substantially verbatim in order to uphold the validity of a verbatim
    record sentence is one of jurisdictional proportion that cannot be waived.” 26
    Whether an omission is substantial can be a question of quality as well as
    quantity. 27 Substantial omissions render a record of trial incomplete, raising
    23   Gay II, 75 M.J. at 269.
    24   United States v. Davenport, 
    73 M.J. 373
    , 376 (C.A.A.F. 2014).
    25   
    10 U.S.C. § 854
    .
    26 United States v. Henry, 
    53 M.J. 108
    , 110 (C.A.A.F. 2000); see also RCM
    1112(b)(1) (2019).
    27   See United States v. Lashley, 
    14 M.J. 7
    , 9 (C.M.A. 1982).
    7
    United States v. Lamore, NMCCA No. 201900315
    Opinion of the Court
    a presumption of prejudice. 28 Insubstantial omissions do not raise a presump-
    tion of prejudice or affect the record’s characterization as a complete one. 29
    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.” 30 Because the missing items were attached to the
    record during appellate review, we focus solely on the omission at the conven-
    ing authority’s action stage of the post-trial process. Appellant argues the
    missing motions were substantial omissions because the military judge relied
    on them to resolve Appellant’s post-trial motion. He further argues the
    Government cannot rebut the presumption of prejudice raised by the omis-
    sions because the uninformed nature of the SJA’s recommendation denied
    Appellant “his or her full opportunity for corrective action or clemency from
    the CA.” 31 We disagree.
    The missing portions of the record were not “substantial” within the
    meaning of Article 54, UCMJ. Prior to the SJA’s recommendation to the
    convening authority, the record contained the military judge’s written ruling
    on Appellant’s motion. This written ruling contained findings of fact and
    conclusions of law that thoroughly addressed Appellant’s post-trial custody
    status. While the record was missing Appellant’s motion and the Govern-
    ment’s response, these portions were not of such quality and quantity to rise
    to the level of a substantial omission. The written ruling of the military judge
    was the crucial piece of the record that the SJA and the convening authority
    had access to prior to taking action.
    Even assuming arguendo the omission was substantial, the Government
    has rebutted the presumption of prejudice. Appellant argues that the SJA’s
    recommendation to the convening authority was uninformed because she did
    not have the motions relied upon by the military judge and her recommenda-
    tion simply “glossed over” the judge’s ruling. We find that argument without
    merit. The record contained, and thus the SJA had access to, the military
    judge’s ruling at the time of her recommendation, and the convening authori-
    ty was able to exercise his duties consistent with RCM 1109(d). We will not
    28   
    Id. at 8
    .
    29   Henry, 53 M.J. at 111.
    30 United States v. Underhill, No. 200700144, 
    2007 CCA LEXIS 306
    , at *8-9
    (N-M. Ct. Crim. App. Aug. 9, 2007) (unpublished).
    31   
    Id.
    8
    United States v. Lamore, NMCCA No. 201900315
    Opinion of the Court
    second guess the actions of either the SJA or the convening authority under
    that rule as long as the record shows (1) the convening authority consulted
    with the staff judge advocate or legal advisor, 32 and (2) the convening author-
    ity considered matters timely submitted under RCM 1106 and 1106A before
    taking or declining to take action. 33 The record reflects that both were done in
    this case.
    III. CONCLUSION
    After careful consideration of the record and briefs of appellate counsel,
    we have determined that the findings and sentence are correct in law and
    fact and that no error materially prejudicial to Appellant’s substantial rights
    occurred. 34
    The findings and sentence are AFFIRMED.
    FOR THE COURT:
    RODGER A. DREW, JR.
    Clerk of Court
    32   RCM 1109(d)(2).
    33   RCM 1109(d)(3)(A).
    34   UCMJ arts. 59, 66.
    9
    

Document Info

Docket Number: 201900315

Filed Date: 4/20/2021

Precedential Status: Precedential

Modified Date: 4/21/2021