United States v. Gonzales ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, KASPRZYK, and STEWART
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Raymond GONZALES
Firecontrolman Second Class (E-5), U.S. Navy
Appellant
No. 201900223
Decided: 25 June 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Ryan J. Stormer
Sentence adjudged 22 May 2019 by a special court-martial convened
at Naval Station Great Lakes, Illinois, consisting of a military judge
sitting alone. Sentence in the Entry of Judgment: reduction to E-1,
confinement for 12 months, and a bad-conduct discharge. 1
For Appellant:
Captain Bree A. Ermentrout, JAGC, USN
For Appellee:
Major Clayton L. Wiggins, USMC
Lieutenant Kimberly Rios, JAGC, USN
1 The convening authority suspended confinement in excess of four months and
disapproved the bad conduct discharge pursuant to a pretrial agreement.
United States v. Gonzales, No. 201900223
Opinion of the Court
_________________________
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 and 66, Uniform Code of Military Justice [UCMJ],
10 U.S.C. §§ 859, 866 (2019).
The imprecise wording of the Convening Authority’s Action (CAA) regard-
ing the term of confinement prompted this Court to specify the issue of
whether we have jurisdiction to review this case. Where the punitive dis-
charge has been disapproved, the jurisdiction threshold for this type of non-
automatic appeal requires that “the sentence extends to confinement for more
than six months.” Article 66(b)(1)(A), UCMJ, 10 U.S.C. § 866(b)(1)(A) (2019).
Here, the CAA stated that “[o]f the adjudged sentence of twelve months con-
finement, four (4) months are approved and will be executed; eight (8) months
are suspended in accordance with the pretrial agreement.” Is this language
sufficient to meet the jurisdictional threshold?
We hold that it is. A convening authority “may not disapprove, commute,
or suspend in whole or in part an adjudged sentence of confinement for more
than six months” unless it is pursuant to a pretrial agreement [PTA] or based
on a recommendation by trial counsel for substantial assistance. Article
60(c)(4)(A), UCMJ, 10 U.S.C. § 860 (2016). In this case, the adjudged sentence
of confinement was for 12 months and there is no evidence in the record that
trial counsel made any recommendation for substantial assistance; therefore,
the convening authority must act pursuant to the PTA in disapproving, com-
muting, or suspending any part of the adjudged period of confinement. Under
the PTA the parties agreed that confinement “may be approved as adjudged;
however, confinement in excess of four (4) months will be suspended for a pe-
riod of 12 months . . . .”
To the extent the CAA’s language can be read to suggest the eight
months’ suspended confinement were not first approved as per the PTA, we
hold, as we have held previously, that any such purported action is ultra
vires and 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 disapprov-
al of a bad-conduct discharge that the parties had agreed under the PTA
2
United States v. Gonzales, No. 201900223
Opinion of the Court
would be approved and then suspended). Since any potential ambiguity in the
CAA is created by language that would be ultra vires and because the mili-
tary judge resolved any such ambiguity in the Entry of Judgment, the Court
concludes the approved sentence includes 12 months’ confinement which,
taken with together with Appellant’s submission, meets the threshold under
Article 66(b)(1)(A) and gives this Court jurisdiction.
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
3