United States v. Riboni ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, GERRITY, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Joseph M. RIBONI, Jr.
Missile Technician Second Class (E-5), U.S. Navy
Appellant
No. 202100193
_________________________
Decided: 20 January 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Lawrence C. Lee
Sentence adjudged 17 May 2021 by a general court-martial convened at
Naval Base Kitsap, Bremerton, Washington, consisting of a military
judge sitting alone. Sentence in the Entry of Judgment: reduction to
E-1, confinement for 11 months, and a bad-conduct discharge.
For Appellant:
Commander Michael E. Maffei, JAGC, USN
_________________________
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
_________________________
United States v. Riboni, NMCCA No. 202100193
Opinion of the Court
PER CURIAM:
After careful consideration of the record, submitted without assignment of
error, 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. 1
However, we note that Appellant requested a deferment of automatic for-
feitures, and the convening authority summarily denied the request without
stating the basis for doing so. “When a convening authority acts on an accused’s
request for deferment of all or part of an adjudged sentence, the action must
be in writing (with a copy provided to the accused) and must include the rea-
sons upon which the action is based.” 2 Accordingly, the failure to state in writ-
ing the basis for the denial of a deferment request constitutes error on the part
of the convening authority. 3 We review the denial of a request for deferment
for an abuse of discretion. 4 However, when a convening authority does not state
a reason for such action, we are left unable to assess any abuse of discretion
since “the basis for the exercise of that discretion is unknown.” 5 Therefore, “we
must independently review the facts of this case and determine whether defer-
ment was appropriate, and if it was, what remedy should follow.” 6
Our analysis of the factors enumerated in Rule for Courts-Martial [R.C.M.]
1103(d)(2) convinces us that it was appropriate to deny the deferral-of-forfei-
tures request. Appellant’s crimes involved the possession of child pornography.
The crime and the facts underlying Appellant’s offense were serious and car-
ried a maximum punishment of up to ten years in confinement and a dishon-
orable discharge. Appellant’s sentence, in accordance with the plea agreement,
was a bad-conduct discharge, 11 months’ confinement, and reduction to E-1.
Under R.C.M. 1103(d)(2), Appellant had the burden of showing that the inter-
ests of Appellant and the community in deferral outweighed the community’s
interest in imposition of the punishment on the effective date. In balancing the
1 Articles 59 & 66, Uniform Code of Military Justice, 10 U.S.C. §§ 859, 866.
2 United States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992).
3 Id.4 United States v. Brownd, 6 M.J. 338, 340 (C.M.A. 1979); R.C.M. 1103(d)(2).
5 Sloan, 35 M.J. at 6.
6United States v Phillips, NMCCA No. 20040865, 2006 CCA LEXIS 61 at *28–29
(N-M. Ct. Crim. App. Mar. 16, 2006) (unpublished).
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United States v. Riboni, NMCCA No. 202100193
Opinion of the Court
interests of Appellant—to help him stay current on his bills—against the seri-
ousness of the crimes and the sentence in accordance with the plea agreement,
we find Appellant did not meet his burden. It was therefore appropriate to deny
the deferment request. Accordingly, we find that Appellant did not suffer any
prejudicial error from the convening authority not articulating in writing the
specific reasons for his denial.
Such issues are easily avoidable, and we caution staff judge advocates and
convening authorities to follow the rules when reviewing deferment requests
and articulate in writing the basis for the action taken. Military judges, as part
of their role in finalizing the Entry of Judgment, should also pay close attention
to deferment requests and ensure the rules are followed. 7
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
7 See United States v. Mirra, NMCCA No. 202000062, 2021 CCA LEXIS 211 (N-M.
Ct. Crim. App. Apr. 30, 2021) (unpublished); United States v. Urbonas, NMCCA No.
201900298, 2021 CCA LEXIS 175 (N-M. Ct. Crim. App. Apr. 16, 2021) (unpublished);
United States v. Hull, NMCCA No. 202000044, 2020 CCA LEXIS 359 (N-M. Ct. Crim.
App. Oct. 5, 2020) (unpublished); United States v. Franco, NMCCA No. 202000042,
2020 CCA LEXIS 176 (N-M. Ct. Crim. App. May 27, 2020) (unpublished); United States
v. Norris, NMCCA No. 201900289, 2020 CCA LEXIS 139 (N-M. Ct. Crim. App. Apr.
30, 2020) (unpublished).
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