United States v. Portillos

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
UNITED STATES ) No. ACM 40305
Appellee )
)
v. )
) ORDER
Michael A. PORTILLOS )
Staff Sergeant (E-5) )
U.S. Air Force )
Appellant ) Panel 1
On 28 September 2021 and 14 March 2022, Appellant was tried by a gen-
eral court-martial at Aviano Air Force Base, Italy. In accordance with his pleas,
and pursuant to a plea agreement, a military judge found Appellant guilty of
one charge and four specifications of assault consummated by a battery upon
his spouse, in violation of Article 128, Uniform Code of Military Justice
(UCMJ).* A military judge sentenced Appellant to a bad-conduct discharge,
confinement for 12 months, reduction to the grade of E-1, and a reprimand.
On 14 April 2023, Appellant submitted a brief in which he argues that he
is entitled to new post-trial processing because the convening authority (1) de-
cided on action nine days after the announcement of sentence and before the
Defense submitted matters in clemency pursuant to Rule for Courts-Martial
(R.C.M.) 1106, and (2) decided on action and deferment requests before Appel-
lant’s time to rebut the victim submission of matters had expired.
On 15 May 2023, the Government submitted their answer to Appellant’s
brief, and stated that Appellant was not prejudiced when the convening au-
thority issued his decision on action before Appellant’s time to submit clemency
or rebuttal had run.
Within ten days of an announced sentence in a general court-martial, the
accused may submit matters to the convening authority for consideration un-
der R.C.M. 1109 or 1110. See R.C.M. 1106(a), R.C.M. 1106(d)(1). Crime victims
may also submit matters within ten days. R.C.M. 1106A(a). If a crime victim
submits matters under R.C.M. 1106A, the accused shall have five days from
receipt of those matters to submit any matters in rebuttal. R.C.M. 1106(d)(3).
* All references in this order to the UCMJ and Rules for Courts-Martial are to the
Manual for Courts-Martial, United States (2019 ed.).
United States v. Portillos, No. ACM S40305
“The convening authority shall ensure any matters submitted by a crime vic-
tim under this subsection be provided to the accused as soon as practicable.”
R.C.M. 1106A(c)(3). “Before taking or declining to take any action on the sen-
tence [in clemency], the convening authority shall consider matters timely sub-
mitted under R.C.M. 1106 and 1106A, if any, by the accused and any crime
victim.” R.C.M. 1109(d)(3)(A). In making a clemency decision, a convening au-
thority “may not consider matters adverse to the accused without providing
the accused an opportunity to respond.” R.C.M. 1106A(c)(2)(B), Discussion.
On 14 March 2022, the victim and the Appellant were provided notice of
their opportunities to submit matters for the convening authority’s considera-
tion before he decided what, if any, action to take on Appellant’s case. Matters
were due to the convening authority not later than 24 March 2022. Appellant
was notified that, in addition to submitting matters in clemency, he could also
“submit an application . . . to defer any forfeitures of pay or allowances, re-
duction in grade, or service of a sentence to confinement” and request
waiver of “any forfeitures of pay and allowances under Article 58b, UCMJ,”
for the benefit of his dependents. The victim provided matters the same day.
On 16 March 2022, Appellant requested deferment of his rank reduction
and automatic forfeitures, and waiver of automatic forfeitures. On 21 March
2022, Appellant’s trial defense counsel were provided a copy of the victim sub-
mission of matters. On 23 March 2022, the convening authority granted defer-
ment of the rank reduction and waived the automatic forfeitures. He denied
Appellant’s request for deferment of the automatic forfeitures as moot and took
no action on the findings or sentence.
Here, the court-martial sentenced Appellant on 14 March 2022, and the
convening authority decided on action nine days later on 23 March 2022. This
early decision on action denied Appellant his opportunity to timely submit mat-
ters in clemency. The convening authority also erred by deciding on action
three days before Appellant’s five-day window to rebut the victim matters had
tolled.
Additionally, while Appellant has not raised the issue, we find the record
of trial is substantially incomplete because it does not include one of three discs
capturing victim’s interview with the Air Force Office of Special Investigations,
an attachment to Appellate Exhibit IX. This interview is labeled,
1027202017544. “The record of trial contains the court-martial proceedings,
and includes any evidence or exhibits considered by the court-martial in deter-
mining the findings or sentence.” R.C.M. 1112(b). The record shall include inter
alia “any appellate exhibits.” R.C.M. 1112(b)(6).
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United States v. Portillos, No. ACM S40305
If a record is incomplete or defective a court reporter or any party
may raise the matter to the military judge for appropriate cor-
rective action. A record of trial found to be incomplete or defec-
tive before or after certification may be corrected to make it ac-
curate. A superior competent authority may return a record of
trial to the military judge for correction under this rule.
R.C.M. 1112(d)(2).
Consequently, we return the record to the Chief Trial Judge, Air Force Trial
Judiciary, for correction under R.C.M. 1112(d), to address the missing disc, At-
tachment 3 to Appellate Exhibit IX, and to resolve a substantial issue with the
post-trial processing.
Accordingly, it is by the court on this 1st day of August, 2023,
ORDERED:
The record of trial in Appellant’s case is returned to the Chief Trial Judge,
Air Force Trial Judiciary. Our remand returns jurisdiction over the case to a
detailed military judge and dismisses this appellate proceeding. See JT. CT.
CRIM. APP. R. 29(b)(2). A detailed military judge may:
(1) Return the record of trial to the convening authority for new post-
trial processing consistent with this order, specifically serving Ap-
pellant with victim matters submitted under R.C.M. 1106A and af-
fording Appellant the opportunity to respond to such matters pur-
suant to R.C.M. 1106(d)(3) and affording Appellant a full ten days
to submit matters in clemency before the convening authority
makes a decision on any deferment or clemency requests by Appel-
lant;
(2) Conduct one or more Article 66(f)(3), UCMJ, 10 U.S.C. § 866(f)(3),
proceedings using the procedural rules for post-trial Article 39(a),
UCMJ, 10 U.S.C. § 839, sessions;
(3) Correct or modify the entry of judgment; and
(4) Correct the record of trial to account for the missing attachment
to Appellate Exhibit IX, and any other portion of the record that is
determined to be missing or defective hereafter, after consultation
with the parties. See Article 66(g), UCMJ, 10 U.S.C. § 866(g); R.C.M.
1112(d)(2)–(3).
Thereafter, the record of trial will be returned to this court for completion
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United States v. Portillos, No. ACM S40305
of its appellate review under Article 66(d), UCMJ, 10 U.S.C. § 866(d).
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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