United States v. Novelli

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 40103 (f rev)
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UNITED STATES
Appellee
v.
Michael E. NOVELLI
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 23 February 2023
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Military Judge: Willie J. Babor (arraignment and motions); Charles E.
Wiedie, Jr. (trial); Dayle P. Percle (remand).
Sentence: Sentence adjudged on 26 January 2021 by GCM convened at
Spangdahlem Air Base, Germany. Sentence entered by military judge
on 1 March 2021, and reentered on 5 August 2022: Bad-conduct dis-
charge, confinement for 600 days, forfeiture of all pay and allowances,
and reduction to E-1.
For Appellant: Major Kasey W. Hawkins, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Lieutenant
Colonel Amanda L.K. Linares, USAF; Major Deepa M. Patel, USAF; Ma-
jor John P. Patera, USAF; Mary Ellen Payne, Esquire.
Before POSCH, RICHARDSON, and CADOTTE, Appellate Military
Judges.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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PER CURIAM:
United States v. Novelli, No. ACM 40103 (f rev)
Appellant’s case is before us a second time. In an earlier opinion, this court
addressed four assignments of error: whether (1) the entry of judgment should
be corrected; (2) the conspiracy specifications are an unreasonable multiplica-
tion of charges; (3) trial counsel’s sentencing argument was improper; and (4)
Appellant’s sentence is inappropriately severe.* See generally United States v.
Novelli, No. ACM 40103, 2022 CCA LEXIS 403 (A.F. Ct. Crim. App. 12 Jul.
2022) (per curiam) (unpub. op.). We carefully considered issues (2), (3), and (4)
and determined no discussion or relief was warranted. Id. at *3. We found
merit to issue (1): the entry of judgment lacked specificity as to some offenses
of which Appellant was convicted. Id. at *6–7. To cure this error, we remanded
the case to the Chief Trial Judge, Air Force Trial Judiciary, for modification of
the entry of judgment as noted in our opinion. Id. at *9–10. On 5 August 2022,
a detailed military judge issued a corrected copy of the entry of judgment. Ap-
pellant’s case was then returned to this court.
In his brief to this court upon further review, Appellant acknowledges the
entry of judgment was corrected, and “specifically preserves and maintains”
issues (2)–(4). Appellant asks this court to consider additional argument re-
garding issue (2), and makes no further argument on issues (1), (3), or (4).
Appellant urges this court to pierce any waiver of his claim on appeal that
the two specifications of conspiracy to which he pleaded guilty were an unrea-
sonable multiplication of charges. We have carefully considered Appellant’s ad-
ditional arguments on issue (2), and maintain our original decision that no re-
lief is warranted.
The findings and sentence as entered on 5 August 2022 are correct in law
and fact, and no error materially prejudicial to the substantial rights of Appel-
lant occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Ac-
cordingly, the findings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
* Issues (3) and (4) were raised pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982).
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