United States v. Graham

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Airman First Class DARNELL J. GRAHAM
United States Air Force
ACM 38809
20 October 2015
Sentence adjudged 10 March 2015 by GCM convened at Kadena Air Base,
Okinawa, Japan. Military Judge: Gregory O. Friedland (sitting alone).
Approved Sentence: Bad-conduct discharge, confinement for 8 months,
and reduction to E-1.
Appellate Counsel for the Appellant: Captain Annie W. Morgan.
Appellate Counsel for the United States: Colonel Katherine E. Oler.
Before
MITCHELL, DUBRISKE, and BROWN
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
BROWN, Judge:
At a judge alone special court-martial, Appellant was convicted, consistent with
his plea, of attempted sexual abuse of a child between 12 and 16 years old, in violation of
Article 80, UCMJ, 10 U.S.C. § 880.1 The military judge sentenced Appellant to a bad-
conduct discharge, confinement for 8 months, and reduction to E-1. The convening
authority approved the sentence as adjudged.
1
Appellant pleaded not guilty to attempted sexual assault of a child. Pursuant to a pretrial agreement, that
specification was withdrawn and dismissed with prejudice after imposition of the sentence.
Although no specific issues were identified for the court, we elect to discuss an
omission in the staff judge advocate recommendation (SJAR) where the convening
authority was not properly advised on the limited authority to grant clemency under
Article 60(c), UCMJ, 10 U.S.C. § 860(c). After review of this issue, we affirm the
finding and sentence.
Background
Appellant was a first-term airman assigned to Kadena Air Base, Okinawa, Japan.
In June 2014, Appellant responded to an online advertisement in a section for women
who were looking for men. The advertisement said that the female was 18 years old. On
22 July 2014, “Savanah” returned Appellant’s inquiry and they began corresponding
through text messages. During her first series of texts, “Savanah” told Appellant that she
was 15 years old. “Savanah,” however, was actually an investigator working for the
Naval Criminal Investigative Service’s Child Crimes Task Force. “Savanah” was a
fictitious person created by law enforcement to identify potential child sexual predators.
In late July, Appellant directed the text conversation toward his desire to meet
with “Savanah” and engage in sexual relations with her. When Appellant went to the
proposed meeting place, law enforcement apprehended him. The two texts sent in July
from Appellant to “Savanah,” requesting that they have sexual relations, were the basis
for the attempted sexual abuse of a child offense.
Omission in the SJAR and Addendum to the SJAR
The SJAR recommended the convening authority approve the sentence as
adjudged. In his clemency submission, Appellant requested the convening authority
reduce his confinement to 179 days. After reviewing Appellant’s request, the addendum
to the SJAR advised the convening authority the earlier recommendation to approve the
sentence as adjudged was unaffected by Appellant’s request. The convening authority
denied Appellant’s request and approved the sentence as adjudged.
For offenses occurring on or after 24 June 2014, a convening authority no longer
has unfettered discretion to set aside findings or reduce adjudged sentences. For offenses
after that date, a convening authority is prohibited from setting aside the finding of guilt
unless the maximum sentence that could have been adjudged would not exceed two years
without regard to the jurisdictional limits of the court; and the sentence did not include a
punitive discharge or confinement for more than six months. Article 60(c)(4)(A), UCMJ,
10 U.S.C. §860(c)(4)(A);2 see Air Force Instruction (AFI) 51-201, Administration of
2
This limitation to a convening authority’s power under Article 60, UCMJ, 10 U.S.C. § 860, was part of the
National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1702, 127 Stat. 672, 955–56 (2013)
(FY 14 NDAA). The FY14 NDAA amendments became effective on 24 June 2014, 180 days after the FY 14
NDAA was enacted.
2 ACM 38809
Military Justice, ¶ 9.23.2 (6 June 2013) (as modified by Air Force Guidance
Memorandum 2014-01 (25 September 2014)). Furthermore, unless a specific exception
applies, a convening authority is prohibited from disapproving an adjudged punitive
discharge or any portion of an adjudged sentence of confinement for more than six
months. Article 60(c)(4)(A), UCMJ. To ensure convening authorities are properly
advised on the limits to their authority, AFI 51-201 states that “the SJAR should contain a
statement informing the convening authority what he/she cannot do under Article 60(c),
UCMJ, for offenses committed on or after 24 June 2014 per Fiscal Year 2014 National
Defense Authorization Act § 1702(b).” AFI 51-201, ¶ 9.16.3.
As the offense in this case occurred after 24 June 2014, the convening authority
should have been advised that he did not have the authority to set aside the finding of
guilt, disapprove the punitive discharge, or provide the requested relief of reducing the
amount of confinement from the 8 months imposed by the military judge. Nevertheless,
despite this omission, the convening authority considered Appellant’s request, in full, and
chose to approve the sentence as adjudged. As Appellant’s clemency request received
more consideration than the law allowed, we find no material prejudice to a substantial
right of Appellant.3
Conclusion
The approved finding and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred.4 Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved finding and
sentence are AFFIRMED.
FOR THE COURT
STEVEN LUCAS
Clerk of the Court
3
We do not address whether the result would remain the same if a convening authority attempted to provide
clemency that he was not authorized to provide. That question is not raised by this case.
4
We note the court-martial order (CMO), dated 20 April 2015, should have reflected Appellant’s not guilty plea to
Specification 1 of the Charge. See Air Force Instruction (AFI) 51-201, Administration of Military Justice, ¶ 10.8.2.2
(6 June 2013). We therefore direct a corrected CMO. See AFI 51-201 ¶ 10.10.
3 ACM 38809