United States v. Norman

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32608
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UNITED STATES
Appellee
v.
Khalil R. NORMAN
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 8 January 2021
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Military Judge: Thomas J. Alford.
Sentence: Sentence adjudged on 19 June 2019 by SpCM convened at
Hurlburt Field, Florida. Sentence entered by military judge on 13 July
2019: Bad-conduct discharge, confinement for 40 days, forfeiture of
$1,000.00 pay for 1 month, reduction to E-1, and a reprimand.
For Appellant: Major Kevin R. Cayton, USAF.
For Appellee: Major Jessica L. Delaney, USAF; Mary Ellen Payne, Es-
quire.
Before MINK, KEY, and MERRIAM, 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This is an unpublished opinion and, as such, does not serve as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:
A special court-martial composed of a military judge sitting alone found
Appellant guilty, in accordance with his pleas and pursuant to a pretrial agree-
ment (PTA), of three specifications of distribution of marijuana, in violation of
United States v. Norman, No. ACM S32608
Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. 1 All
offenses pertained to conduct that occurred in 2018. The military judge sen-
tenced Appellant to a bad-conduct discharge, confinement for 40 days, forfei-
ture of $1,000.00 pay per month for one month, reduction to the grade of E-1,
and a reprimand. The adjudged confinement was less than the PTA’s sentence
limitation, which limited confinement to ten months. The military judge signed
the Statement of Trial Results (STR) the same day he adjudged Appellant’s
sentence. 2
Appellant raises two assignments of error on appeal: (1) whether Appel-
lant’s record of trial is substantially complete when portions of a prosecution
exhibit are missing, and (2) whether Appellant’s sentence is inappropriately
severe. 3 We do not reach Appellant’s assignments of error here, but instead
address an error in post-trial processing of Appellant’s court-martial: whether
the convening authority failed to take action on the sentence as required by
Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), and
Article 60, UCMJ, 10 U.S.C. § 860 (Manual for Courts-Martial, United
States (2016 ed.) (2016 MCM)).
We find the convening authority failed to take action on Appellant’s sen-
tence as he was required to do, and that remand to the Chief Trial Judge, Air
Force Trial Judiciary, is appropriate. Accordingly, we defer addressing Appel-
lant’s assignments of error until the record is returned to this court for com-
pletion of our Article 66, UCMJ, 10 U.S.C. § 866, review.
I. BACKGROUND
On 28 June 2019, Appellant submitted a request for clemency in which he
asked the convening authority to disapprove the adjudged forfeitures of pay
1 References to the punitive articles of the Uniform Code of Military Justice (UCMJ)
are to the Manual for Courts-Martial, United States (2016 ed.). Unless otherwise spec-
ified, all other references to the UCMJ and the Rules for Courts-Martial (R.C.M.) are
to the Manual for Courts-Martial, United States (2019 ed.).
2The STR was inserted into the record of trial in accordance with R.C.M. 1101(a). This
rule lists several required contents, including inter alia “the command by which [the
court-martial] was convened.” R.C.M. 1101(a)(3). The STR in this case included most
of the required contents, and it indicated the squadron and major command to which
Appellant was assigned, but it omitted the command that convened the court-martial.
See United States v. Moody-Neukom, No. ACM S32594, 2019 CCA LEXIS 521, at *2–3
(A.F. Ct. Crim. App. 16 Dec. 2019) (per curiam) (unpub. op.). We permit correction of
the STR in our decretal paragraph.
3Appellant personally asserts this issue pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982).
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United States v. Norman, No. ACM S32608
and all confinement in excess of 15 days. After reviewing Appellant’s clemency
matters and consulting with his staff judge advocate, the convening authority
signed a Decision on Action memorandum dated 8 July 2019. In the Decision
on Action, the convening authority stated: “I hereby take no action on the find-
ings or the sentence in the case of United States v. [Airman First Class] Khalil
R. Norman. The following reprimand is approved: [the convening authority
then set out the terms of the reprimand].”
On 13 July 2019, the military judge signed the entry of judgment (EoJ). See
Rule for Courts-Martial (R.C.M.) 1111(b). The signed EoJ contains the follow-
ing information on the sentence: “Punitive Discharge: Bad Conduct Discharge;”
“Total Confinement: 40 days;” “Forfeitures of Pay and/or Allowances: $1,000.00
pay for one month;” and “Reduction in Pay Grade: E-1.” The EoJ also restates
the Reprimand as articulated by the convening authority in his Decision on
Action. The convening authority’s Decision on Action was included as Attach-
ment 2 to the EoJ.
II. DISCUSSION
Proper completion of post-trial processing is a question of law this court
reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim.
App. 2004) (citation omitted). Interpretation of a statute and a Rule for Courts-
Martial are also questions of law we review de novo. United States v. Hunter,
65 M.J. 399, 401 (C.A.A.F. 2008) (citation omitted); United States v. Martinelli,
62 M.J. 52, 56 (C.A.A.F. 2005) (citation omitted).
Executive Order 13,825, § 6(b), requires that the version of Article 60,
UCMJ,
in effect on the date of the earliest offense of which the accused
was found guilty, shall apply to the convening authority . . . to
the extent that Article 60: (1) requires action by the convening
authority on the sentence; . . . or (5) authorizes the convening
authority to approve, disapprove, commute, or suspend a sen-
tence in whole or in part.
See 2018 Amendments to the Manual for Courts-Martial, United States, 83
Fed. Reg. at 9890. The version of Article 60, UCMJ, in effect on the date of the
earliest charged offense for which Appellant was found guilty, 13 April 2018,
stated “[a]ction on the sentence of a court-martial shall be taken by the con-
vening authority or by another person authorized to act under this section.” 10
U.S.C. § 860(c)(2)(A) (2016 MCM) (emphasis added); see also United States v.
Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening author-
ity is required to take action on the sentence . . . .”). Article 60(c)(2)(B), UCMJ,
further stated: “Except as [otherwise] provided . . . the convening authority . . .
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United States v. Norman, No. ACM S32608
may approve, disapprove, commute, or suspend the sentence of the court-mar-
tial in whole or in part.” 10 U.S.C. § 860(c)(2)(B) (2016 MCM). The convening
authority’s action is required to be “clear and unambiguous.” United States v.
Politte, 63 M.J. 24, 26 (C.A.A.F. 2006) (citation omitted).
Several panels of our esteemed colleagues on this court have addressed the
effect of a convening authority’s failure to take complete action on a sentence
where at least one offense predates 1 January 2019, but the court-martial and
post-trial processing occur after 1 January 2019. See, e.g., United States v.
Lopez, No. ACM S32597, 2020 CCA LEXIS 439, at *8 (A.F. Ct. Crim. App. 8
Dec. 2020) (unpub op.) (holding “failure to take action on the entire sentence
fails to satisfy the Article 60, UCMJ (2016 MCM), requirement” and therefore
“the record should be remanded” without testing for prejudice); United States
v. Barrick, No. ACM S32579, 2020 CCA LEXIS 346, at *3 (A.F. Ct. Crim. App.
30 Sep. 2020) (unpub. op.) (holding the convening authority’s decision to take
no action was the equivalent of action); United States v. Finco, No. ACM
S32603, 2020 CCA LEXIS 246, at *15 (A.F. Ct. Crim. App. 27 Jul. 2020) (hold-
ing the convening authority’s failure to take action on sentence was plain and
obvious error that must be tested for prejudice).
This court’s recent en banc decision in United States v. Aumont, No. ACM
39673, 2020 CCA LEXIS 416 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (un-
pub. op.), reveals four distinct positions among the judges of this court. In Au-
mont, no single legal rationale regarding the effect of a convening authority
taking “no action” was adopted by a majority of this court. Four judges held in
two separate opinions that the convening authority’s decision to “take no ac-
tion” on sentence was not error. Id. at *4; id. at *38–40 (Posch, S.J., concurring
in part and in the result). Two judges found error, but concluded the appellant
in that case was not prejudiced by the error. Id. at *36 (Lewis, S.J., concurring
in part and in the result). Finally, four judges found a convening authority
taking no action on sentence to be error, and would have remanded without
testing for prejudice. Id. at *91–92 (J. Johnson, C.J., concurring in part and
dissenting in part).
We conclude the convening authority’s failure to take action on the entire
sentence fails to satisfy the requirement of the applicable Article 60, UCMJ.
Prior to 1 January 2019, the convening authority was required to explicitly
state his approval or disapproval of the sentence. See United States v. Wilson,
65 M.J. 140, 141 (C.A.A.F. 2007) (citing R.C.M. 1107(d)(1)). “If only part of the
sentence is approved, the action shall state which parts are approved.” Id.(quoting R.C.M. 1107(f)(4)(A)).
In this case, after declaring that he was taking no action on the sentence,
the convening authority explicitly approved a reprimand. He further implicitly
referenced the possibility of a punitive discharge by mentioning appellate
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United States v. Norman, No. ACM S32608
leave. The convening authority failed to mention the reduction in grade, con-
finement, or the forfeitures of pay and allowances. The convening authority’s
action was incomplete and ambiguous, and therefore deficient. See Politte, 63
M.J. at 26. 4
Our superior court has mandated that when a Court of Criminal Appeals
identifies an ambiguity in an action, we must return the case to the convening
authority. Id. at 27 (applying the earlier versions of Articles 60 and 66, UCMJ,
10 U.S.C. §§ 860, 866 (2000)). In requiring the deficient action to be returned
to the convening authority, our superior court did not evaluate the deficiency
for prejudice; the deficiency in the action ipso facto required its return. Id.; see
also United States v. Scott, 49 M.J. 160, 160 (C.A.A.F. 1998). For the reasons
set forth by the majority in Lopez and in the dissenting opinion in Aumont, we
find the record must be remanded to the Chief Trial Judge, Air Force Trial
Judiciary, to resolve the error. See Article 66(f)(3), UCMJ, 10 U.S.C. § 866(f)(3).
III. CONCLUSION
This case is REMANDED to the Chief Trial Judge, Air Force Trial Judici-
ary, to resolve a substantial issue with the convening authority’s decision mem-
orandum as the action taken on Appellant’s adjudged sentence was incomplete
and ambiguous.
Our remand returns jurisdiction over the case to a detailed military judge
and dismisses this appellate proceeding consistent with Rule 29(b)(2) of the
Joint Rules for Appellate Procedure for Courts of Criminal Appeals. JT. CT.
CRIM. APP. R. 29(b)(2). A detailed military judge may:
(1) Correct the Statement of Trial Results;
(2) Return the record of trial to the convening authority or his
successor to take action on the sentence;
(3) Conduct one or more Article 66(f)(3), UCMJ, proceedings us-
ing the procedural rules for post-trial Article 39(a), UCMJ, ses-
sions; and/or
(4) Correct or modify the entry of judgment.
4 As in Aumont, the convening authority’s memorandum suggests the requirement to
take action on the entire sentence was overlooked, further suggesting Appellant’s case
was processed entirely under the new Article 60 and Article 60a, UCMJ, and associated
Rules for Courts-Martial. See Aumont, unpub. op. at *89 (J. Johnson, C.J., concurring
in part and dissenting in part).
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Thereafter, the record of trial will be returned to the court for completion
of appellate review under Article 66, UCMJ.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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