United States v. Dambra ( 2019 )

This opinion is subject to administrative correction before final disposition.
Before
CRISFIELD, HITESMAN, and GASTON
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Antonio J. DAMBRA
Fireman Apprentice (E-2), U.S. Navy
Appellant
No. 201900074
Decided: 24 September 2019
Appeal from the United States Navy-Marine Corps Trial Judiciary.
Military Judge: Commander Hayes C. Larsen, JAGC, USN. Sentence
adjudged 22 October 2018 by a general court-martial convened at
Naval Station Norfolk, Virginia, consisting of a military judge sitting
alone. Sentence approved by the convening authority: reduction to pay
grade E-1, confinement for 13 months, 1 and a bad-conduct discharge.
For Appellant: Commander Robert D. Evans, Jr., JAGC, USN.
For Appellee: Lieutenant Joshua C. Fiveson, JAGC, USN; Major Kelli
A. O’Neil, USMC.
_________________________
1 The convening authority suspended confinement in excess of ten months pursu-
ant to a pretrial agreement, yet also purported to disapprove confinement in excess of
ten months. See Discussion, infra.
United States v. Dambra, No. 201900074
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:
The appellant was convicted, pursuant to his pleas, of seven specifications
of indecent visual recording in violation of Article 120c, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 920c (2016), for surreptitiously video
recording a number of his shipmates in the shower and bathroom stalls
aboard USS GEORGE H.W. BUSH (CVN 77).
The appellant raises the following assignment of error (AOE): the court-
martial order (CMO) and detailed defense counsel’s clemency submission
contain various errors, and the record of trial is incomplete. The government
concedes the errors in the CMO. We agree and order corrective action below.
Otherwise, finding no prejudicial error, we affirm the findings and sentence.
I. BACKGROUND
The appellant pleaded guilty to the offenses in accordance with a pretrial
agreement (PTA) with the convening authority (CA) that provided the follow-
ing term regarding any sentence to confinement: “May be approved as ad-
judged. However, all confinement in excess of ten (10) months will be sus-
pended for a period of 12 months after the date of the convening authority’s
action, at which time, unless sooner vacated, the suspension [sic] portion will
be remitted without further action.” 2
In his CMO, the CA stated that under the terms of the PTA, confinement
in excess of ten months would be suspended. 3 However, in taking action on
the case, the CA also stated that “only so much of the sentence as provides for
reduction to the paygrade of E-1, confinement for ten months, and a bad-
conduct discharge is approved.” 4 Thus, the CA’s action effectively purported
to disapprove, as opposed to approve and then suspend, adjudged confine-
2 Appellate Exhibit V at 1.
3 Commander, Navy Region Mid-Atlantic, General Court-Martial Order No. 04-
19, dated 14 February 2019, at 4.
4 Id. at 3.
2
United States v. Dambra, No. 201900074
ment in excess of ten months. As such action on the adjudged sentence was
not agreed to under the PTA, it exceeded what the CA was empowered to do
under Article 60(c)(4), UCMJ, 10 U.S.C. § 860(c)(4) (2016).
The CMO also refers to the appellant as a Fireman Recruit, notwithstand-
ing that he promoted to Fireman Apprentice a few days before trial.
II. DISCUSSION
The government concedes that the language in the CMO purporting to
disapprove confinement in excess of ten months is ultra vires. We have held
that in such cases the ultra vires portion of the CA’s action is a legal nullity
that we will disregard. United States v. Kruse, 75 M.J. 971, 975 (N-M. Ct.
Crim. App. 2016) (involving the purported disapproval of a bad-conduct dis-
charge that the parties had agreed under the PTA would be approved and
then suspended). When a CA fails to take action required by a PTA, this
court has authority to enforce the agreement. Id. (citing United States v. Cox,
46 C.M.R. 69, 72 (C.M.A. 1972)). Accordingly, we approve the entirety of the
adjudged sentence, including the full 13 months’ confinement, but suspend
confinement in excess of ten months as agreed to by the parties under the
terms of the PTA.
As identified by the appellant and conceded by the government, the CMO
also contains other scrivener’s errors. While such inattention to detail is
concerning, the appellant does not assert, and we do not find, any prejudice
resulting from these errors. 5 However, the appellant is entitled to have the
errors corrected so as to accurately reflect the proceedings. See United States
5 To the extent the appellant’s brief implies, without argument, that errors in his
detailed defense counsel’s clemency submission relating to the adjudged punishment,
forum, and sentencing authority rise to the level of prejudicial error, we find that
assertion to be without merit. While the counsel’s lack of attention to detail is con-
cerning, the appellant does not assert, nor do we find, that any deficiency relating to
the clemency submission rises to the level of constitutional ineffectiveness under
Strickland v. Washington, 466 U.S. 668 (1984), or any other grounds prejudicial to
the appellant warranting relief. See N-M. Ct. Crim. App. R. 18.1(c)(7) (2019) (requir-
ing a “direct and concise argument as to each issue of fact or law presented, and
demonstrating with particularity why the error assigned is materially prejudicial to
the substantial rights of the appellant or why relief is otherwise warranted”); N-M.
Ct. Crim. App. R. 18.1(e)(2) (requiring for even summary AOEs a “legal basis . . .
including argument, if pertinent, discussing briefly and succinctly the point of law
presented”).
3
United States v. Dambra, No. 201900074
v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). We order correc-
tive action in our decretal paragraph.
The appellant also asserts that the record of trial is missing multiple ex-
hibits and a page from the transcript. Based on our review of the record of
trial, we find this issue to be without merit. 6
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence, as modified by
this court, are correct in law and fact and that no error materially prejudicial
to the appellant’s substantial rights occurred. Arts. 59 and 66, UCMJ. The
supplemental CMO will reflect that the CA approved the entire period of
adjudged confinement, but suspended all confinement in excess of ten months
for a period of 12 months after the date of the CA’s action, at which time,
unless sooner vacated, the suspended portion will be remitted without further
action, and that the appellant’s rank at the time of trial was Fireman Ap-
prentice (E-2). The findings and sentence as thus modified and approved are
AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
6 The items the appellant asserts are missing are present in the record of trial.
However, while not raised at trial or on appeal, we do note the absence of Article 33
and Article 34, UCMJ, letters from the record of trial. Whether they are missing
because they never existed or because they simply were not included in the record of
trial, the appellant does not allege, nor do we find, any prejudice stemming from any
such waived, non-jurisdictional, procedural errors. See United States v. Winiecki,
2016 CCA LEXIS 572, at *2 n.1 (N-M. Ct. Crim. App. 2016) (citing United States v.
Murray, 25 M.J. 445, 449 (C.M.A. 1988)); RULES FOR COURTS-MARTIAL 905(b)(1),
905(e), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.).
4