United States v. Hull ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, PENNIX, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Jacob A. HULL
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 202000044
Decided: 5 October 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Mark D. Sameit
Sentence adjudged 29 October 2019 by a general court-martial con-
vened at Camp Foster, Okinawa, Japan, consisting of a military judge
sitting alone. Sentence in the Entry of Judgment: reduction to E-1,
confinement for 28 months, and a bad-conduct discharge.
For Appellant:
Lieutenant Commander Erin Alexander, JAGC, USN
For Appellee:
Brian K. Keller, Esq.
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
United States v. Hull, NMCCA No. 202000044
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. Uniform Code of Military Justice arts 59, 66, 10 U.S.C.
§§ 859, 866.
However, we note that Appellant requested a deferment of 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, United States v. Dinger, 77 M.J. 477
(C.A.A.F. 2018); see also Rule for Courts-Martial [R.C.M.] 1103(d). According-
ly, the failure to state in writing the basis for the denial of a deferment
request constitutes error on the part of the convening authority. Id. 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.” United States v. Phillips, No.
200400865, 2006 CCA LEXIS 61, *28-9 (N-M. Ct. Crim. App. Mar. 16, 2006)
(unpub. op.) (citation omitted).
Our analysis of the factors enumerated in R.C.M. 1103(d)(2) convinces us
that it was appropriate to deny the requested deferral. Appellant’s crimes
involved the sexual assault and abusive sexual contact of a fellow Marine
who Appellant admitted was too intoxicated to consent to the sexual activity.
The crimes Appellant pled guilty to were serious and carried a statutory
maximum of 37 years’ confinement. The sentence adjudged was in accordance
with the maximum sentence allowed in his plea agreement: reduction to E-1,
confinement for 28 months, and a bad-conduct discharge. Appellant’s basis
for a clemency request for deferment of automatic forfeitures was to provide
Appellant with money to pay off a credit-card balance, so he could more easily
reintegrate into society when he eventually leaves confinement. Under
R.C.M. 1103(d)(2), Appellant has the burden of showing that the interests of
Appellant and the community in deferral outweigh the community’s interest
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United States v. Hull, NMCCA No. 202000044
Opinion of the Court
in imposition of the punishment on the effective date. In balancing the
interests of Appellant as described to help him reintegrate into society in
approximately two years, against the seriousness of the crimes to which he
pled guilty—sexual assault and abusive sexual contact of a severely
intoxicated fellow Marine—and the sentence adjudged for these crimes, 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
prejudice from the convening authority not articulating in writing the specific
reasons for his denial of the request for deferment.
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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