United States v. Urbonas ( 2021 )


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  • This opinion is subject to administrative correction before final disposition.
    Before
    HOLIFIELD, GERRITY, and DEERWESTER
    Appellate Military Judges
    _________________________
    UNITED STATES
    Appellee
    v.
    Maxwell E. URBONAS
    Information Systems Technician Third Class (E-4), U.S. Navy
    Appellant
    No. 201900298
    Decided: 16 April 2021
    Appeal from the United States Navy-Marine Corps Trial Judiciary
    Military Judge:
    Wilbur Lee
    Sentence adjudged 16 August 2019 by a special court-martial con-
    vened at Joint Base Pearl Harbor-Hickam, Hawaii, consisting of a mil-
    itary judge sitting alone. Sentence in the Entry of Judgment: reduc-
    tion to E-1, forfeiture of $1,537 per month for 6 months, confinement
    for 6 months, and a bad-conduct discharge.
    For Appellant:
    Captain Jeremiah Sullivan, JAGC, USN
    For Appellee:
    Brian K. Keller, Esq.
    United States v. Urbonas, NMCCA No. 201900298
    Opinion of the Court
    _________________________
    This opinion does not serve as binding precedent, but
    may be cited as persuasive authority under NMCCA
    Rule of Appellate Procedure 30.2(a).
    _________________________
    PER CURIAM:
    Appellant was convicted, in accordance with his plea, of one specification
    of indecent language, in violation of Article 134, Uniform Code of Military
    Justice [UCMJ], 10 U.S.C. § 934 and submitted his case for review without
    assignment of error. This Court specified three issues:
    I. Was Appellant prejudiced by that portion of his sen-
    tence awarding forfeiture of $1,537 per month for six
    months when the plea agreement ordered “two-thirds
    forfeitures will be adjudged” without specifying the
    exact amount each month or the number of months,
    and the forfeiture amount was in violation of Rule for
    Courts-Martial 1003(b)(2)?
    II. Was Appellant prejudiced by that portion of his sen-
    tence awarding confinement for “six months” instead
    of the maximum “180 days” as set forth in the plea
    agreement?
    III. Was Appellant prejudiced by the omission from the
    Entry of Judgment and the confinement order of the
    court-ordered 91 days of pre-trial confinement credit?
    We find no error materially prejudicial to Appellant’s substantial rights
    with regard to the lack of specificity of a term for forfeitures under Issue I,
    where the military judge advised Appellant and all parties agreed that under
    the plea agreement the term of adjudged forfeitures was intended to permit a
    duration of up to 12 months.
    However, the Government concedes the remaining error for Issue I, which
    we find materially prejudicial to Appellant’s substantial rights, as the mili-
    tary judge sentenced Appellant and included in the Entry of Judgment [EOJ]
    a forfeiture amount in violation of Rule for Courts-Martial [RCM] 1003 (b)(2).
    We provide relief in the decretal paragraph and modified EOJ.
    We further find it was error for the military judge to violate the terms of
    the plea agreement by exceeding the 180-day maximum confinement limita-
    2
    United States v. Urbonas, NMCCA No. 201900298
    Opinion of the Court
    tion (because “six months” at the time sentence was adjudged was equal to
    181 days); and to fail to include the 91 days of pre-trial confinement credit in
    the EOJ. However, we find no error materially prejudicial to Appellant’s
    substantial rights occurred because the military brig corrected the military
    judge’s error by applying the correct 180-day maximum for confinement and
    gave Appellant 91 days of pre-trial confinement credit. 1 The EOJ will be
    modified to correctly reflect the confinement amount of 180 days and the 91
    days of pre-trial confinement credit.
    I. BACKGROUND
    As part of his plea agreement with the convening authority, Appellant, an
    E-4, waived his right to a trial by members and requested trial by military
    judge alone. As such, the provisions outlined in RCM 705 (Plea agreements)
    and RCM 1002(d)(2) (Sentencing determination) applied to Appellant’s case.
    The plea agreement required a sentence that included a bad conduct dis-
    charge, confinement within a range of 120 to 180 days, reduction to E-1, and
    “two-thirds forfeitures”—without specifying their duration. The military
    judge advised Appellant that the plea agreement permitted a maximum
    sentence of a bad-conduct discharge, confinement of six months, reduction to
    E-1, and forfeiture of two-thirds pay for twelve months. Both trial and de-
    fense counsel, as well as Appellant, agreed with the military judge’s interpre-
    tation of the plea agreement. The military judge accepted the plea agreement
    as binding on the parties and the court-martial. 2
    The military judge did not impose a sentence within the limitations set
    forth in the plea agreement, but instead sentenced Appellant to a bad-
    conduct discharge, confinement for “six months” (instead of 180 days), reduc-
    tion to E-1, and forfeiture of $1,537 per month for six months (instead of
    $1,120 per month for six months, which is the whole dollar amount of two-
    1  In the military brig’s prisoner sentence computation dated 19 August 2019
    (3 days after the sentence was adjudged), it was noted the military judge sentenced
    Appellant to six months of confinement but the maximum under the plea agreement
    was 180 days, and Appellant was given the 91 days of pre-trial confinement credit. It
    appears no one brought this issue to the attention of the convening authority or the
    military judge who could have corrected this prior to the EOJ. Had the Government
    brought this change by the military brig to the attention of the convening authority
    and the military judge, these issues could have been resolved at that time.
    2 See UCMJ art.53a(d); see also RCM 1002(a)(2) (“[T]he court-martial shall sen-
    tence the accused in accordance with the limits established by the plea agreement.”).
    3
    United States v. Urbonas, NMCCA No. 201900298
    Opinion of the Court
    thirds pay for an E-1 with over four months of service). 3 The military judge
    also ordered 91 days of pre-trial confinement credit. The convening authority
    took no action on the findings or sentence. The military judge’s sentence, as
    announced, was included in the EOJ; however, the EOJ failed to include the
    91 days of pre-trial confinement credit. 4 Appellant requested a deferment of
    confinement, which was denied without explanation.
    II. DISCUSSION
    A. Forfeiture of Pay
    When a military judge accepts a plea agreement containing a sentence
    limitation, the accused shall be sentenced in accordance with the limitations
    in the plea agreement. 5 If a sentence includes a reduction in grade, the
    maximum forfeiture is based upon the grade to which the accused is re-
    duced. 6 After reducing Appellant to E-1 in accordance with the plea agree-
    ment, the military judge imposed forfeitures of $1,537 per month for 6
    months, incorrectly calculating “two-thirds forfeitures” based on E-4 pay.
    When a court exceeds a sentencing limitation, it is plain error. 7 The Govern-
    ment concedes this error.
    As a punishment, partial forfeitures “shall state the exact amount in
    whole dollars to be forfeited each month and the number of months the
    forfeitures will last.” 8 After mandating reduction to E-1, the plea agreement
    failed to mandate forfeitures in an exact amount or for any duration, stating
    only that “[t]wo-thirds forfeitures will be adjudged.” This term was ambigu-
    ous, leaving neither a minimum nor maximum timeframe. “Interpretation of
    3 The military judge was required to adjudge forfeitures of two-thirds at the plea
    agreement’s mandated reduced rank of E-1; however, the military judge incorrectly
    used the rank of E-4 and miscalculated the two-thirds pay for an E-4 as $1,537 (the
    correct amount for an E-4 would have been $1,538 per month). If forfeitures were
    calculated correctly, using the pay scale for 2019—the year Appellant was sen-
    tenced—it should have been $1,120 per month for Appellant’s reduced rank of E-1.
    4 The sentence adjudged was also included in the Confinement Order, and the
    Statement of Trial Results, which will be ordered corrected in the decree.
    5   RCM 1002(a)(2).
    6   RCM 1003(a)(2).
    7 See generally United States v. Dinger, 
    77 M.J. 447
    , 453 (C.A.A.F. 2018); United
    States v. Stewart, 
    62 M.J. 291
    , 295 (C.A.A.F. 2006).
    8   RCM 1003(b)(2).
    4
    United States v. Urbonas, NMCCA No. 201900298
    Opinion of the Court
    a [plea agreement] is a question of law, which we review de novo. 9 We will
    look at the terms of the plea agreement, as well as Appellant’s “understand-
    ing of the terms of [the] agreement as reflected in the record as a whole. 10
    The military judge is required to ensure that the accused understands the
    impact of a plea agreement and that the parties agree to its terms. 11 It is
    critical for any ambiguities or errors to be clarified and corrected, and the
    courts have “long emphasized the critical role that a military judge and
    counsel must play to ensure that the record reflects a clear, shared under-
    standing of the terms of any [plea] agreement between an accused and the
    convening authority.” 12
    After originally discussing the maximum punishment with regard to for-
    feitures, the military judge specifically addressed the ambiguity in the plea
    agreement regarding the duration of forfeitures. He asked the parties what
    the duration of the forfeitures was intended to be, as the military judge
    interpreted the term as giving him discretion to adjudge forfeitures of two-
    thirds pay for up to 12 months. All parties agreed with the military judge as
    to the parties’ intent, and the plea was accepted in accordance with Article
    53a, UCMJ, and R.C.M 910(f)(4). The duration of forfeitures was not raised
    by the Defense at any point during the case, in the post-trial processing of the
    case, or on appeal until this Court raised the issue. 13
    B. Confinement Exceeds Sentencing Limitation
    The plea agreement allowed for a confinement range between 120-180
    days. The military judge adjudged, and included in the EOJ, a sentence of
    confinement for “six months”. Based on the timing of the calendar at sentenc-
    ing, six months equaled 181 days. This error was not objected to by either
    trial or defense counsel. However, the military brig corrected this error and
    changed the total confinement to 180 days in accordance with the plea.
    Therefore no error materially prejudicial to Appellant’s substantial rights
    9   United States v. Lundy, 
    63 M.J. 299
    , 301 (C.A.A.F. 2006).
    10   See
    id. 11
    See RCM 910(f)(4); see also United States v. King, 
    3 M.J. 458
    (C.M.A. 1977);
    United States v. Green, 
    1 M.J. 453
    , 456 (C.M.A. 1976).
    12   United States v. Williams, 
    60 M.J. 360
    , 362 (C.A.A.F. 2004).
    13 Automatic forfeiture of two-thirds pay applies during the period of confine-
    ment. See U.C.M.J. art 58(b).
    5
    United States v. Urbonas, NMCCA No. 201900298
    Opinion of the Court
    occurred, as Appellant did not serve more than 180 days. We will correct the
    EOJ to comply with the plea agreement.
    C. Summary Denial of Deferment
    According to the EOJ, Appellant requested a deferment of confinement,
    and the convening authority 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.” 14 Accordingly, the failure to state in
    writing the basis for the denial of a deferment request constitutes error. 15 We
    review the denial of a request for deferment for an abuse of discretion. 16
    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.” 17 Therefore, “we must independently
    review the facts of this case and determine whether deferment was appropri-
    ate, and if it was, what remedy should follow.” 18
    Our analysis of the factors enumerated in RCM 1103(d)(2) convinces us
    that it was appropriate to deny the deferral of confinement request. Appel-
    lant’s crimes involved indecent language to an undercover officer related to
    the sexual abuse of a child. The crime and the facts underlying Appellant’s
    offense were serious. The sentence as modified by this Court in accordance
    with the plea agreement includes a bad-conduct discharge, reduction to E-1,
    confinement for 180 days, and forfeiture of $1,120 per month for six months.
    Under RCM 1103(d)(2), Appellant has the burden of showing that the inter-
    ests of Appellant and the community in deferral outweigh the community’s
    interest in imposition of the punishment on the effective date. In balancing
    the interests of Appellant—to help him go to work and school and potentially
    to obtain therapy—against the seriousness of the crimes and the sentence as
    modified by this Court in accordance with the plea agreement, we find Appel-
    lant did not meet his burden. It was therefore appropriate to deny the defer-
    14   United States v. Sloan, 
    35 M.J. 4
    , 7 (C.M.A. 1992).
    15   See
    id. 16
      United States v. Brownd, 
    6 M.J. 338
    , 340 (C.M.A. 1979).
    17   
    Sloan, 35 M.J. at 6
    .
    18 United States v Phillips, NMCCA 20040865, 2006 CCA LEXIS 61 at *28-9
    (N-M. Ct. Crim. App. 16 March 2006) (unpublished).
    6
    United States v. Urbonas, NMCCA No. 201900298
    Opinion of the Court
    ment request. Accordingly, we find that Appellant did not suffer any preju-
    dice from the convening authority not articulating in writing the specific
    reasons for his denial.
    D. Deficient Entry of Judgment, Statement of Trial Results, and Con-
    finement Order
    The Entry of Judgment and Confinement Order failed to reflect the 91
    days of pretrial confinement credit ordered by the military judge; both docu-
    ments and the Statement of Trial Results also reflected improper amounts for
    both confinement and forfeitures. Although no error materially prejudicial to
    Appellant’s substantial rights occurred, Appellant is entitled to have court-
    martial records that correctly reflect the content of his proceeding.19
    III. CONCLUSION
    In accordance with RCM 1111(c)(2), we modify the Entry of Judgment and
    direct that it be included in the record. The Statement of Trial Results and
    the Confinement Order are ordered to be corrected in accordance with this
    opinion. At appellant’s reduced grade of E-1 with over four months of service,
    forfeiture of two-thirds pay per month for a period of six months calculates in
    whole dollars to $1,120 pay per month for six months. Accordingly, the
    findings and only so much of the sentence as provides for reduction to E-1,
    forfeiture of $1,120 pay per month for six months, confinement for 180 days,
    and a bad-conduct discharge are affirmed. All rights, privileges, and property
    of which Appellant has been deprived by virtue of execution of forfeitures
    that have not been affirmed will be restored. We issue a corrected Entry of
    Judgment in accordance with Rule for Courts-Martial 1111(c)(2).
    After careful consideration of the record, submitted without assignment of
    error, we have determined that the findings and sentence as modified are
    now correct in law and fact and that no error materially prejudicial to Appel-
    lant’s substantial rights occurred. 20 Accordingly, the findings and sentence in
    the EOJ as modified are AFFIRMED.
    19   United States v. Crumpley, 
    49 M.J. 538
    , 539 (N-M. Ct. Crim. App. 1998).
    20   UCMJ arts. 59, 66.
    7
    United States v. Urbonas, NMCCA No. 201900298
    Opinion of the Court
    FOR THE COURT:
    RODGER A. DREW, JR.
    Clerk of Court
    8
    UNITED STATES                                     NMCCA NO. 201900298
    v.                                                 ENTRY
    OF
    Maxwell E. URBONAS                                      JUDGMENT
    Information Systems Technician
    Third Class (E-4),                                 As Modified on Appeal
    U.S. Navy
    Accused
    16 April 2021
    On 16 August 2019, the Accused was tried at Joint Base Pearl Harbor-Hickam,
    Hawaii, by a special court-martial, consisting of a military judge sitting alone.
    Military Judge Wilbur Lee, presided.
    FINDINGS
    The following are the Accused’s pleas and the Court’s findings to all offenses the
    convening authority referred to trial:
    Charge I:     Violation of Article 80, Uniform Code of Military Justice,
    10 U.S.C. § 880.
    Plea: Not Guilty.
    Finding: Dismissed.
    Specification:      Attempted Production of Child Pornography from on
    or about 22 March 2019 until on or about 25 March
    2019.
    Plea: Not Guilty.
    Finding: Dismissed.
    Charge II:    Violation of Article 82, Uniform Code of Military Justice,
    10 U.S.C. § 882.
    Plea: Not Guilty.
    Finding: Dismissed.
    United States v. Urbanos, NMCCA No. 201900298
    Modified Entry of Judgment
    Specification:    Solicitation of Forcible Pandering from on or about
    22 March 2019 until on or about 25 March 2019.
    Plea: Not Guilty.
    Finding: Dismissed.
    Charge III: Violation of Article 134, Uniform Code of Military Justice,
    10 U.S.C. § 934.
    Plea: Guilty.
    Finding: Guilty.
    Specification:    Communicating Indecent Language from on or about
    22 March 2019 until on or about 24 March 2019.
    Plea: Guilty.
    Finding: Guilty.
    SENTENCE
    On 16 August 2019, the Accused was sentenced by a military judge. The Accused
    was adjudged the following sentence as modified by this Court:
    Reduction to pay grade E-1.
    Confinement for 180 days.
    Forfeiture of $1,120 pay per month for 6 months.
    A bad-conduct discharge.
    The Accused has served 91 days of pretrial confinement and shall be credited
    with 91 days of confinement already served, to be deducted from the adjudged
    sentence to confinement.
    FOR THE COURT:
    RODGER A. DREW, JR.
    Clerk of Court
    10
    

Document Info

Docket Number: 201900298

Filed Date: 4/16/2021

Precedential Status: Precedential

Modified Date: 4/16/2021