United States v. Warren ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
MONAHAN, STEPHENS, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Daniel R. WARREN
Private First Class (E-2), U.S. Marine Corps
Appellant
No. 202000170
Decided: 30 October 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Mark D. Sameit
Sentence adjudged 15 May 2020 by a special court-martial convened
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 11 months, and a bad-conduct dis-
charge.
For Appellant:
Captain Thomas P. Belsky, JAGC, USN
For Appellee:
Brian K. Keller, Esq.
_________________________
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
United States v. Warren, NMCCA No. 202000170
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 Uniform Code of Military Justice arts. 59, 66, 10 U.S.C.
§§ 859, 866.
The findings and sentence are AFFIRMED. 2
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
1 However, we note a procedural error that had no prejudicial effect on the
sentence. Specifically, when announcing the sentence, the military judge failed to
announce whether the confinement was to run concurrently or consecutively, in
violation of R.C.M. 1009(b)(2)(B). Because the military judge clearly explained that
the confinement would run concurrently with other confinement during discussion of
the pretrial agreement with Appellant prior to sentencing, and because all parties
understood that the confinement would run concurrently, we find no prejudice.
2 In affirming the findings and sentence, we note that the only clemency request-
ed by trial defense counsel on behalf of Appellant was deferral of all confinement in
excess of eight months. Because the adjudged sentence included a bad conduct
discharge, and because the requested relief is a misapplication of how deferral of
confinement is executed, the requested clemency was not possible by operation of
law. It was, thus, outside the convening authority’s authority. See Article 60(c),
UCMJ. In a case where trial defense counsel could have requested clemency that was
within the authority of the convening authority, but instead requested clemency that
was not possible by operation of law, we have remanded for new post-trial processing
with conflict-free counsel. See United States v. Marquardt, No. 201600265, 2017 CCA
Lexis 95 (N-M. Ct. Crim. App. Feb. 14, 2017) (unpublished op.). However, because the
only possible clemency available for Appellant was suspension or disapproval of the
adjudged reduction to E-1, and due to the seriousness and breadth of the offenses in
this case, we find there was no “reasonable probability of succeeding” that clemency
would have been granted on that basis. United States v. Jameson, 65 M.J. 160, 164
(C.A.A.F. 2007) (internal quotations omitted). Therefore, under the unique
circumstances of this case we discern no prejudice and no need to remand for new
post-trial processing.
2