United States v. Miller ( 2020 )

UNITED STATES
NMCCA No. 201900234
Appellee
v. Panel 3
Chase T. MILLER OR DER
Interior Communications
Electrician Seaman (E-2)
U.S. Navy Remanding Case for
New Post-Trial Processing
Appellant
Appellant was found guilty, in accordance with his pleas, of violation of a
lawful general order by possessing drug paraphernalia, making a false official
statement, and 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 convening authority approved the adjudged
sentence of confinement for twelve months, reduction to E-1, and a bad-
conduct discharge.
ERROR WITH POST-TRIAL PROCESSING:
THE CONVENING AUTHORITY ACTED WITHOUT
THE COMPLETE RECORD OF THE PROCEEDINGS
A. Background
Appellant began his post-trial confinement the day he was sentenced, 8
May 2019. He was placed in post-trial “protective custody” at Lake County
Correctional Facility for thirty-three days and during that time made two
requests to be transferred to the general population, which were denied.
Appellant also submitted two clemency requests to the convening authority
requesting, among other things, suspension of the adjudged and automatic
reduction in paygrade. On 10 June 2019 Appellant was transferred to the
Chesapeake Brig where he was placed in medical segregation pending a
medical evaluation. On 28 June 2019 Appellant submitted a post-trial motion
to the military judge alleging illegal post-trial confinement and asking for a
sentence reduction and additional confinement credit. The military judge
conducted a post-trial hearing on 9 July 2019 to hear Appellant’s motion
based on allegations that his post-trial “protective custody” in civilian jail
United States v. Miller, NMCCA No. 201900234
Remand Order
violated the Eighth Amendment of the Constitution, Article 55, UCMJ, and
Rule for Courts-Marital [R.C.M.] 1104. At the conclusion of the post-trial
hearing, the military judge reserved ruling on the motion and informed
counsel he would issue a written ruling within a week.
On 24 July, 2019, the convening authority took action on Appellant’s
court-martial, denying Appellant’s clemency requests. A week later, on 31
July 2019, the military judge issued his written ruling in which he denied the
defense motion for sentencing relief but found, sua sponte, a violation of
Article 13, UCMJ, and awarded an additional fifteen days of confinement
credit. Based upon the dates and omitted documents in the record of trial, it
is clear that the convening authority did not have access to the Defense
motion, Government’s response, the military judge’s written ruling, or the
transcript of the post-trial hearing when he took action on Appellant’s case. 1
Despite this, somehow the convening authority’s action (signed a week before
the military judge’s ruling) accounts for the additional fifteen days of pre-trial
confinement credit eventually awarded by the military judge. In fact, the date
stamp on the military judge’s written ruling suggests that in addition to not
being issued by the time of the convening authority’s action, or present in the
record of trial, the military judge’s ruling did not even exist prior to that time.
We are thus unable to determine from the record how the convening
authority’s action was able to reflect the additional fifteen days of credit
granted a week later by the military judge. Below is a synopsis of the time
line in this case:
8 May 2019 Appellant sentenced
17 May 2019 Appellant submits clemency requests
9 Jul 2019 Post-trial hearing on 8th Amendment claims
11 Jul 2019 Statement of Trial Results
24 Jul 2019 Convening Authority’s Action
31 Jul 2019 Ruling on post-trial motion
31 Jul 2019 Verification of record of trial
31 Jul 2019 Entry of Judgment
8 May 2020 Post-trial hearing transcribed
1 The record of trial initially before the Court did not contain these documents,
which the Government provided on appellate review. We therefore assume that the
record before the convening authority at the time of his action shared the same
omissions.
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Remand Order
10 Jun 2020 Addendum (containing missing portions)
attached to record of trial
The record of the post-trial hearing was not transcribed until 8 May 2020
and was not verified by the military judge until 1 June 2020. On 10 June
2020 a Government motion to attach the missing portions of the record was
granted and included in the appellate record. As such, we will only examine
the issue concerning whether there was a “substantial omission” in the record
at the time of the convening authority’s action.
B. Law and Analysis
Whether a record of trial is incomplete is a question of law which we
review de novo. “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.” United
States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000); see also R.C.M. 1112(b)(1)
(2019).2 Whether an omission is substantial can be a question of quality as
well as quantity. See United States v. Lashley, 14 M.J. 7, 9 (C.M.A. 1982).
Substantial omissions render a record of trial incomplete, raising a presump-
tion of prejudice. Id. at 8. Insubstantial omissions do not raise a presumption
of prejudice or affect the record’s characterization as a complete one. Henry,
53 M.J. at 111.
1. The record contains substantial omissions that give rise to a presump-
tion of prejudice
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.” United States v. Underhill, No. 200700144, 2007 CCA
LEXIS 306, at *8-*9 (N-M. Ct. Crim. App. Aug. 9, 2007) (unpublished).
Because the missing portions of the record here were attached to the record
2 Henry was based on a pre-Military Justice Act of 2016 version of the Rules for
Courts-Martial. See, e.g., R.C.M. 1103(b)(2)(B) (2016). The prior rule required a
verbatim transcript whenever “[t]he sentence adjudged includes confinement for
twelve months or more or any punishment that may not be adjudged by a special
court-martial.” R.C.M. 1103(b)(2)(B)(i) (2016). The rule that applies to this case
requires that the “record of trial in every general and special court-martial shall
include . . . [a] substantially verbatim recording of the court-martial proceedings
. . . .” R.C.M. 1112(b)(1) (2019). Thus, a substantially verbatim record of trial was
required in this case, even if under a different rule than that applied in Henry.
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Remand Order
during appellate review, we focus solely on the impact of their omission at the
convening authority’s action stage of the post-trial process. Specifically, we
will examine whether there was a substantial omission at the convening
authority’s action stage and, if so, whether the Government has rebutted any
presumption of prejudice that arose from the convening authority acting on a
record with a substantial omission.
In this case, the missing record of the post-trial hearing, to include the
written motions and the court’s ruling, comprised a significant portion of the
record. The missing portions of the record consisted of 98 pages of motions,
replies and exhibits. That portion of the record captured what ultimately
resulted in the military judge finding a violation of Article 13, UCMJ, and
awarding fifteen days of confinement credit. The military judge’s written
ruling is several pages and details thorough findings of fact and conclusions
of law in his rationale for determining that the government violated Article
13, UCMJ. We view these omissions from the record at the time of the
convening authority’s action as significant in terms of quality and quantity,
and find that they were substantial. As a result, these omissions create a
presumption of prejudice that the Government may rebut.
2. The Government did not rebut the presumption of prejudice
The Government argues that the omissions were irrelevant to the conven-
ing authority’s review and therefore there was no prejudice to Appellant. We
disagree and find that the Government has not rebutted the presumption of
prejudice for the following reasons.
The first part of the analysis begins with examining what authority and
duty rested with the convening authority at the time of his action. Because
all the charges in this case occurred prior to 1 January 2019, but after 24
June 2014, the version of Article 60, UCMJ, from 2016 provides the relevant
limits of the convening authority’s clemency authority. 10 U.S.C. § 860 (Supp.
IV 2017). Under that version of Article 60, and the implementing Rules for
Courts-Martial, the convening authority could not disapprove, commute, or
suspend, in whole or in part, that portion of an adjudged sentence that
included “(i) confinement for more than six months; or (ii) dismissal,
dishonorable discharge, or bad-conduct discharge.” R.C.M. 1107(d)(1)(B)
(2016). However, the convening authority could disapprove, commute, or
suspend, in whole or in part, any portion of an adjudged sentence not
explicitly prohibited by the rule, to include reduction in paygrade. R.C.M.
1107(d)(1)(A) (2016). Appellant’s request for clemency asked for just that.
With respect to clemency, the convening authority “shall consider matters
timely submitted under R.C.M. 1106 and 1106A” before taking or declining to
take action. R.C.M. 1109(d)(3)(A). In addition, the convening authority may
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Remand Order
consider additional matters before taking action to include “[t]he evidence
introduced at the court-martial, and any appellate exhibits, and the recording
or transcription of the proceedings . . . and . . . [s]uch other matters as the
convening authority deems appropriate.” R.C.M. 1109(d)(3)(B). Finally, in
“determining whether to take action, or to decline taking action under this
rule, the convening authority shall consult with the staff judge advocate or
legal advisor.” R.C.M 1109(d)(2).
The record in this case establishes that the convening did consult with the
staff judge advocate prior to taking action, but neither was able to review or
consider the portions of the record pertaining to Appellant’s post-trial motion,
which were absent from the record. Indeed, the military judge’s written post-
trial ruling did not even exist at the time the convening authority acted. As a
result of these substantial omissions, the convening authority was deprived of
the ability to review materials that were within his discretion to consider,
and thus to meaningfully exercise his clemency authority. We further find
that since the record of trial was not complete, the Staff Judge Advocate
Review or legal officer recommendation was unable to provide an informed
recommendation, such that Appellant was deprived of a full opportunity for
corrective action or clemency from the convening authority. See generally
United States v. Wilson, 26 C.M.R. 3, 6 (C.M.A. 1958) (“It is while the case is
at the convening authority level that the accused stands the greatest chance
of being relieved from the consequences of a harsh finding or a severe
sentence.”). Although there is no longer a requirement that the record of trial
contain a substantially verbatim transcription, in order to comply with the
spirit and intent of R.C.M. 1109, the complete record of trial (without
substantial omissions) should at least exist before a convening authority
determines what to consider prior to taking action.
We simply do not know and cannot speculate whether the convening
authority would have granted relief to Appellant had he been fully aware of
the conditions of his post-trial confinement that resulted in additional
confinement credit being awarded by the military judge. Although the
convening authority was limited by Article 60 with regard to any action he
could take in this case, the fact remains that the convening authority took
action before the military judge ruled on a post-trial motion that was
ultimately resolved in Appellant’s favor. Although the convening authority’s
action somehow accounts for the additional fifteen days’ credit awarded by
the military judge, we have no way of determining how he accounted for that
when the military judge withheld ruling on the motion until a week after the
convening authority acted. Had the convening authority been aware of the
judge’s rationale for awarding the additional credit, the convening authority
may have, consistent with his limited authority, deferred or waived Appel-
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Remand Order
lant’s reduction as a matter of clemency that was within his authority to
grant.
Accordingly, it is, by the Court, this 28th day of December 2020,
ORDERED:
1. That the Convening Authority’s Action is SET ASIDE.
2. That the Entry of Judgment is SET ASIDE.
3. That the complete record will be forwarded to a suitable convening
authority for Action in compliance with R.C.M. 1110, and subsequently
forwarded to the military judge to issue an Entry of Judgment in accordance
with R.C.M. 1111. Finally, the record will be returned to this Court for
completion of appellate review.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
Copy to:
NMCCA
45 (CDR Roper)
46 (LT Edwards, LT Rios)
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