United States v. Specialist MANUEL RIOS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, HERRING, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist MANUEL RIOS
United States Army, Appellant
ARMY 20140971
Headquarters, Fort Carson
Douglas K. Watkins, Military Judge
Colonel Paul J. Perrone Jr., Staff Judge Advocate
For Appellant: Lieutenant Colonel Charles A. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Scott A. Martin, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain
Robyn M. Chatwood, JA (on brief).
12 July 2016
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SUMMARY DISPOSITION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
HERRING, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of wrongful use of a controlled substance (marijuana) and
sexual assault, in violation of Articles 112a and 120, Uniform Code of Military
Justice, 10 U.S.C. §§ 912a, 920 (2012) [hereinafter UCMJ]. The military judge
sentenced appellant to be discharged with a dishonorable discharge and to be
confined for seven years. Pursuant to a pretrial agreement, the convening authority
approved only so much of the adjudged sentence as provided for a bad-conduct
discharge and confinement for thirty months.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raised two assignments of error requiring discussion and relief. The matters raised
personally by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982) do not warrant discussion or relief.
RIOS—ARMY 20140971
BACKGROUND
The staff judge advocate recommendation (SJAR) did not list the offenses of
which appellant was convicted. Instead, the Report of Result of Trial (ROT) was
attached to the SJAR, and thus incorporated by reference. The ROT listed
appellant’s two convictions as “Aggravated Sexual Assault Causing Bodily Harm”
and “Drugs: Use Schedule I, II, or III Drugs.” The convening authority’s action
approved the sentence without addressing the findings.
LAW AND DISCUSSION
This court reviews questions of whether post-trial processing was completed
correctly de novo. United States v. Sheffield, 60 M.J. 591, 593 (C.A.A.F. 2004).
When a convening authority does not explicitly address findings in the action, the
convening authority implicitly approves the findings as reported in the SJAR.
United States v. Diaz, 40 M.J. 335, 337 (C.M.A. 1994). Where there is an
unresolvable ambiguity between the adjudged and approved findings, a case should
be returned for a new SJAR and convening authority initial action. United States v.
Alexander, 63 M.J. 269, 275-76 (C.A.A.F. 2006). Here, because we cannot
determine whether the convening authority considered and approved the adjudged
findings, we find unresolvable error.
The current Article 120, UCMJ, applies to offenses committed on or after 28
June 2012. Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM],
pt. IV, ¶ 45. The two penetrative offenses are “rape” and “sexual assault.” The
previous version of Article 120, UCMJ, did include the offense of “aggravated
sexual assault,” but the offense to which appellant pled guilty occurred in January
2013, so the current version applied.
Additionally, the military judge found appellant guilty of “wrongfully using
marijuana,” under Article 112a(a)(b)(1), not Article 112a(a)(b)(2) or (3), which
refers to “any substance not specified in clause (1) that is listed on a schedule of
controlled substances prescribed by the President” and “any other substance . . . that
is listed in Schedules I through V of section 202 of the Controlled Substances Act.”
The SJAR, which incorporates the ROT, provided the convening authority
with misleading and incorrect advice regarding the offenses of which appellant was
convicted. * The government invites this court to find no ambiguity in the findings
approved by the convening authority “because the convening authority reviewed the
charge sheet before accepting the offer and because the promulgating order
*
The SJAR does not state the sentence limitation from the offer to plead guilty, but
does list it as an enclosure. Additionally, the addendum to the SJAR acknowledges
appellant’s clemency matters but does not list them as an enclosure.
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RIOS—ARMY 20140971
accurately reflects the appellant’s pleas.” We decline to make such a logical leap.
The only document that states the names of the offenses is the ROT, and it misstates
them. We find prejudicial error and set aside the action and return the case for a
new SJAR and action.
CONCLUSION
The convening authority’s action, dated 17 June 2015, is set aside. The
record of trial is returned to The Judge Advocate General for a new SJAR and action
by the same or a different convening authority in accordance with Article 60(c)-(e),
UCMJ.
Senior Judge CAMPANELLA and Judge PENLAND concur.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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