United States v. Franco ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
HITESMAN, STEWART, and GERRITY,
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
David FRANCO
Sergeant (E-5), U.S. Marine Corps
Appellant
No. 202000042
Decided: 27 May 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Steven C. Reyes (arraignment)
Mark D. Sameit (trial)
Sentence adjudged 17 October 2019 by a general court-martial con-
vened at Marine Corps Base Camp Foster, Okinawa, Japan, consisting
of a military judge sitting alone. Sentence in the Entry of Judgment:
reduction to E-1, confinement for 50 months, 1 forfeiture of all pay and
allowances, and a dishonorable discharge.
For Appellant:
Lieutenant Commander W. Scott Stoebner, JAGC, USN
1 The convening authority suspended confinement in excess of 30 months pursu-
ant to a pretrial agreement.
United States v. Franco, NMCCA No. 202000042
Opinion of the Court
For Appellee:
Brian K. Keller, Esq.
_________________________
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
_________________________
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. Articles 59, 66, Uniform Code of Military Justice, 10 U.S.C.
§§ 859, 866 (2019).
However, we note that the Appellant requested a deferment of adjudged
and automatic forfeitures until the Entry of Judgment and the convening
authority, after reviewing the request, 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 reasons upon which the action is based.” United States v. Sloan,
35 M.J. 4, 7 (C.M.A. 1992), overruled on other grounds by United States v.
Dinger, 77 M.J. 447, 453 (C.A.A.F. 2018); see also United States v Phillips,
2006 CCA LEXIS 61, *28-29 (N-M. Ct. Crim. App. Mar. 16, 2006) (unpub.
op.); United States v. Gary, No. 201800353, 2020 CCA LEXIS ___, *7-8 (N-M.
Ct. Crim. App. May 27, 2020) (unpub. op.). Accordingly, the failure to state in
writing the basis for the denial of a deferment request constitutes error on
the part of the convening authority. Sloan, 35 M.J. at 7. We review the denial
of a request for deferment for an abuse of discretion. United States v.
Brownd, 6 M.J. 338, 340 (C.M.A. 1979). However, when a convening
authority does not state a reason for its action, we are left unable to assess
any abuse of discretion since “the basis for the exercise of that discretion is
unknown.” Sloan, 35 M.J. at 6-7. Therefore “we must independently review
the facts of this case and determine whether deferment was appropriate, and
if it was, what remedy should follow.” Phillips, 2006 CCA LEXIS 61, at *28-
29.
Our analysis of the factors enumerated in R.C.M. 1103(d)(2) convinces us
that it was appropriate to deny the requested deferral. The Appellant’s
crimes involved the attempted sexual abuse of an eight-year-old child,
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United States v. Franco, NMCCA No. 202000042
Opinion of the Court
attempted conspiracy to sexually abuse an eight-year-old child and bestiality.
The crimes Appellant pled guilty to were serious and carried a maximum of
35 years confinement. The sentence adjudged was reduction to E-1, confine-
ment for 50 months, forfeiture of all pay and allowances, and a dishonorable
discharge with his pretrial agreement limiting confinement to 30 months.
The Appellant’s basis for a deferment was to provide Appellant a small
amount of money to reintegrate with society when he eventually leaves
confinement in over two years. Under R.C.M. 1103(d)(2), the Appellant has
the burden of showing that the interest of the Appellant and the community
in deferral outweigh the community’s interest in imposition of the punish-
ment on the effective date. In balancing the interests of the Appellant as
described to help him integrate into society in two years against the
seriousness of the crimes, bestiality, attempted sexual abuse of an eight-year-
old child and attempted conspiracy to commit sexual abuse of an eight-year-
old child, and the lengthy sentence of 50 months confinement adjudged, we
find the Appellant did not meet his burden. It was therefore appropriate to
deny the deferment request. Accordingly, we find that Appellant did not
suffer any prejudice from the convening authority not articulating in writing
the specific reasons for his denial.
We caution staff judge advocates and convening authorities that this error
is one that was easily avoidable. Just follow the rules, review the request
and, if applicable, articulate the basis for denial in accordance with R.C.M.
1103(d)(2). Military Judges, as part of their role in finalizing the Entry of
Judgement, are urged to pay close attention to deferment requests and
ensure the rules are followed.
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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