United States v. Valentin-Andino

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40185
________________________
UNITED STATES
Appellee
v.
Michael A. VALENTIN-ANDINO
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 30 January 2023
________________________
Military Judge: Charles E. Wiedie (arraignment); Willie J. Babor.
Sentence: Sentence adjudged on 20 May 2021 by GCM convened at Royal
Air Force Lakenheath, United Kingdom. Sentence entered by military
judge on 10 June 2021: Dishonorable discharge, confinement for 90
days, and reduction to the grade of E-1.
For Appellant: Major Eshawn R. Rawlley, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Major John P. Patera, USAF; Major
Jay S. Peer, USAF; Mary Ellen Payne, Esquire.
Before POSCH, RICHARDSON, and CADOTTE, Appellate Military
Judges.
Judge CADOTTE delivered the opinion of the court, in which Senior
Judge POSCH and Judge RICHARDSON joined.
________________________
PUBLISHED OPINION OF THE COURT
________________________
CADOTTE, Judge:
A general court-martial, consisting of officer and enlisted members, con-
victed Appellant, contrary to his pleas, of one specification of sexual assault, in
United States v. Valentin-Andino, No. ACM 40185
violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920, Manual for Courts-Martial, United States (2019 ed.).1 Members sen-
tenced Appellant to a dishonorable discharge, confinement for 90 days, and
reduction to the grade of E-1.
Appellant raises four assignments of error, which we have reworded: (1)
whether Appellant’s conviction is legally and factually sufficient; (2) whether
the record of trial is substantially incomplete; (3) whether Appellant is entitled
to appropriate relief because he was not timely served with the victim’s sub-
mission of matters in accordance with Rule for Courts-Martial (R.C.M.) 1106A,
prior to the convening authority signing the Decision on Action memorandum
in his case; and (4) whether Appellant was deprived of his right to a unanimous
verdict.
We find remand is necessary to address Appellant’s second and third as-
signments of error. We agree with Appellant’s second assignment of error that
the record of trial is incomplete because it is missing substantially verbatim
recordings of the court-martial proceedings. As a result, we return it for cor-
rection under R.C.M. 1112(d). Additionally, we agree with Appellant’s third
assignment of error and find he was not served a copy of the victim’s submis-
sion of matters or provided with an opportunity to rebut the matters prior to
the convening authority signing the Decision on Action memorandum on 3
June 2021. Consequently, we find that remand to the Chief Trial Judge, Air
Force Trial Judiciary, is appropriate. We defer addressing Appellant’s other
assignments of error until the record is returned to this court for completion of
our Article 66(d), UCMJ, 10 U.S.C. § 866(d), review.
I. BACKGROUND
On 19 May 2021, officer and enlisted members found Appellant guilty of
one specification of sexually assaulting KG, and the next day Appellant was
sentenced to a dishonorable discharge, confinement for 90 days, and reduction
to the grade of E-1. At the conclusion of the court-martial, both Appellant and
KG were advised of their right to submit matters to the convening authority.
On 24 May 2021, KG submitted matters to the convening authority in ac-
cordance with R.C.M. 1106A. Four paragraphs of KG’s matters are identical to
her written sentencing victim impact statement. In the remaining two para-
graphs of her matters, KG highlights Appellant’s adjudged sentence and then
states, “From what I understand this is well below the maximum allowable
sentence for [Appellant’s] crime: the crime he committed against me that will
1 Unless otherwise noted, 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.).
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affect me for the rest of my life.” KG then requested the convening authority
“not grant any clemency in the form of a lighter sentence or setting aside any
conviction,” and pleaded, “Please affirm the conviction and sentence imposed.”
KG concludes by thanking the convening authority for consideration of her let-
ter and her “request not to grant clemency in this case.”
On 30 May 2021, Appellant requested deferment of automatic forfeitures
pursuant to R.C.M. 1103(b) and Article 57(b), UCMJ, until entry of judgment.
Appellant’s request was based on his own desire to obtain financial relief as he
“prepare[d] for his transition from the Air Force.” The request also addressed
each factor contained in R.C.M. 1103(d)(2), which we address in more detail
later in this opinion. Afterwards, on 1 June 2021, Appellant’s counsel informed
the Government that Appellant did not intend to submit additional matters to
the convening authority.
On 3 June 2021, the convening authority signed a Decision on Action mem-
orandum in which the convening authority took “no action” on the findings and
sentence.2 In this memorandum the convening authority also denied Appel-
lant’s deferment request, stating:
[Appellant] requested that I defer forfeiture of pay for a period
of six months. I hereby deny the requests [sic] for deferment. Af-
ter considering the factors outlined in R.C.M. 1103(d) with re-
gard to deferment, in particular the nature of the offenses [sic]
and their effect on the victim, I find [Appellant] did not meet his
burden of showing his interests in deferral outweigh the commu-
nity’s interests in imposition of the punishment on its effective
date.
In the Decision on Action memorandum, the convening authority further
states: “Prior to coming to this decision, I consulted with my Staff Judge Advo-
cate. Before taking action, I considered matters timely submitted by the ac-
cused under [R.C.M.] 1106 and the victim under [R.C.M.] 1106[A].” The mili-
tary judge entered judgment on 10 June 2021.3 Not until 16 July 2021 did Ap-
pellant’s counsel acknowledge receipt of KG’s submission of matters; there is
no record of receipt by Appellant.
2 The record does not contain documentation that Appellant was served a copy of the
Decision on Action memorandum. The record does include an acknowledgment of re-
ceipt of the Decision on Action memorandum by a defense paralegal dated 28 June
2021, 18 days after entry of judgment.
3 The record does not contain documentation that Appellant was served a copy of the
entry of judgment. The record does include an acknowledgment of receipt of the entry
of judgment by a defense paralegal dated 28 June 2021.
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United States v. Valentin-Andino, No. ACM 40185
Appellant’s case was docketed with this court on 6 October 2021. On 27
October 2022, Appellant executed a post-trial declaration in which he states,
“I have no recollection of being served with the named victim’s post-trial mat-
ters.”4 Appellant explains that if he had received the victim’s post-trial mat-
ters, he would have responded to them. Appellant states:
The victim urged the convening authority not to grant me any
kind of relief from my sentence, and I believe this negatively af-
fected my chances of getting deferment. I would have wanted the
convening authority to know that upon finishing my confine-
ment term for a sexual offense, I was going to have to travel from
the UK [United Kingdom] back to my home in Puerto Rico,
where the minimum wage at the time was $7.25 [per hour]. Ad-
ditionally, though the victim believes she will be affected for the
rest of her life, the effects of this conviction—including the man-
datory dishonorable discharge and sex offender registration—
will also stay with me for the rest of mine. Any financial help,
even slight monetary assistance, would have made a significant
meaningful difference for me. I would have wanted the conven-
ing authority to know all of these facts before he acted on my
deferment request. After returning to Puerto Rico, I was unem-
ployed for many months before finally finding a job. Despite this
good news, I am still struggling to make ends meet.
On 16 June 2021, the court reporter certified the “record of trial as accurate
and complete in accordance with [R.C.M.] 1112(b) and (c)(1).” The contents of
the record of trial include a disc labeled “GCM US v. Valentin.Andino RAF
Lakenheath UK, 14 January 2021 . . . Open Sessions Only, Disc 1 of __.” While
the disc purports to consist of all open sessions of Appellant’s court-martial,
the disc contains only a single audio file: a recording of Appellant’s arraign-
ment. The record of trial does not include an audio recording of any other open
proceedings of Appellant’s court-martial.
4 We have assessed whether we may consider this declaration from outside the “entire
record” of trial in light of our superior court’s decision in United States v. Jessie, 79
M.J. 437 (C.A.A.F. 2020). We conclude that we may, in line with precedents permitting
consideration of affidavits “necessary for resolving issues raised by materials in the
record.” Id. at 444.
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II. DISCUSSION
A. Incomplete Record of Trial
The contents of a record of trial shall include a “substantially verbatim re-
cording of the court-martial proceedings except sessions closed for delibera-
tions and voting.” R.C.M. 1112(b)(1). “Court-martial proceedings may be rec-
orded by videotape, audiotape, or other technology from which sound images
may be reproduced to accurately depict the court-martial.” R.C.M. 1112(a).
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).
Appellant argues the record is incomplete and requests that his sentence
be reduced, or “alternatively, that we remand the record of trial to the Chief
Trial Judge, Air Force Trial Judiciary for correction under R.C.M. 1112(d).”
The Government concedes the record of trial is incomplete and consequently
that it should be returned to the military judge for correction. We agree with
the parties that the record of trial is incomplete because it does not include a
substantially verbatim recording of the court-martial proceedings. Conse-
quently, in our decretal paragraph, we return the record to the Chief Trial
Judge, Air Force Trial Judiciary, for correction under R.C.M. 1112(d), to ad-
dress the missing substantially verbatim recordings of the court-martial pro-
ceedings.
B. Failure to Serve Victim Matters
1. Law
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). Because they are matters of law, we review in-
terpretations of statutes and Rules for Courts-Martial de novo. See 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).
“In a case with a crime victim, after a sentence is announced in a court-
martial any crime victim of an offense may submit matters to the convening
authority for consideration in the exercise of the convening authority’s powers
under R.C.M. 1109 or 1110.” R.C.M. 1106A(a). “The convening authority shall
ensure any matters submitted by a crime victim under this subsection be pro-
vided to the accused as soon as practicable.” R.C.M. 1106A(c)(3).
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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). “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. The
convening authority may also consider “additional matters,” to include evi-
dence introduced at the court-martial, appellate exhibits, the recording or tran-
scription of the proceedings,5 the personnel records of the accused, and any
other such matters the convening authority deems appropriate. R.C.M.
1109(d)(3)(B).
“Post-trial conduct must consist of fair play, specifically giving the appel-
lant ‘notice and an opportunity to respond.’” United States v. Hunter, No.
201700036, 2017 CCA LEXIS 527, at *4 (N.M. Ct. Crim. App. 8 Aug. 2017)
(unpub. op.) (quoting United States v. Leal, 44 M.J. 235, 237 (C.A.A.F. 1996)).
“Serving victim clemency correspondence on the accused for comment before
convening authority action protects an accused’s due process rights under the
Rules for Courts-Martial and preserves the actual and perceived fairness of the
military justice system.” United States v. Bartlett, 64 M.J. 641, 649 (A. Ct.
Crim. App. 2007).
Article 57(b)(1), UCMJ, 10 U.S.C. § 857(b)(1), authorizes a convening au-
thority, upon application by an accused, to defer a forfeiture of pay or allow-
ances and a reduction in grade until entry of judgment. R.C.M. 1103(d)(2) pro-
vides that an accused seeking to have a punishment deferred “shall have the
burden of showing that the interests of the accused and the community in de-
ferral outweigh the community’s interests in imposition of the punishment on
its effective date.” The rule outlines several factors which the convening au-
thority may consider in determining whether to grant the request, which are:
the probability of the accused’s flight; the probability of the ac-
cused’s commission of other offenses, intimidation of witnesses,
or interference with the administration of justice; the nature of
the offenses (including the effect on the victim) of which the ac-
cused was convicted; the sentence adjudged; the command’s im-
mediate need for the accused; the effect of deferment on good
order and discipline in the command; the accused’s character,
mental condition, family situation, and service record.
5 Subject to the provisions of R.C.M. 1113 and 1109(d)(3)(C).
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United States v. Valentin-Andino, No. ACM 40185
R.C.M. 1103(d)(2).
“When a convening authority acts on an accused’s request for deferment of
all or part of an adjudged sentence, the action must be in writing (with a copy
provided to the accused) and must include the reasons upon which the action
is based.” United States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992), overruled on other
grounds by United States v. Dinger, 77 M.J. 447, 453 (C.A.A.F. 2018); see
also R.C.M. 1103(d)(2) (“The action of the decision of the authority acting on
the deferment request shall be in writing.”). A convening authority’s exercise
of discretion in clemency is distinct from a decision on a deferment request.
United States v. Edwards, 77 M.J. 668, 670 (A.F. Ct. Crim. App. 2018). R.C.M.
1103 is silent on whether a convening authority must consider matters sub-
mitted by a crime victim under R.C.M. 1106A when acting on a deferment re-
quest. See R.C.M. 1103. We review a convening authority’s denial of a defer-
ment request for an abuse of discretion. R.C.M. 1103(d)(2).
We provide relief for an abuse of discretion that materially prejudiced an
appellant’s substantial rights. See United States v. Chisum, 77 M.J. 176, 179
(C.A.A.F. 2018) (citing Article 59(a), UCMJ, 10 U.S.C. § 859(a)). However, be-
fore determining prejudice, we first look at the requirements of notice to an
appellant and the opportunity to respond. In United States v. Spears, we stated
that after the recommendation of the staff judge advocate (SJAR) is served on
an appellant, “[a]ny legal review of a case for the convening authority, includ-
ing those of forfeiture waiver requests . . . should be treated as an addendum
to the original SJAR and served on appellant for comment.” 48 M.J. 768, 776
(A.F. Ct. Crim. App. 1998), overruled on other grounds by United States v.
Owen, 50 M.J. 629 (A.F. Ct. Crim. App. 1998) (en banc). We noted that failure
to serve the legal review on the accused, and failure to provide the accused an
opportunity to comment, violated “the concepts of basic fairness and procedural
due process.” Id. at 775; see also United States v. Brown, 54 M.J. 289, 292
(C.A.A.F. 2000) (finding an appellant did “not meet the applicable standards
for finding prejudicial error” and as a result not deciding “whether the require-
ments of notice and an opportunity to comment apply to requests for deferment
of adjudged forfeitures or waiver of automatic forfeitures”).
An appellant claiming to have been denied a right to comment on post-trial
matters “has the burden of making a colorable showing of possible prejudice”
to be entitled to relief. Brown, 54 M.J. at 292 (citation omitted). Specifically
concerning rebuttal matters, the United States Court of Appeals for the Armed
Forces (CAAF) requires an appellant “to demonstrate prejudice by stating
what, if anything, would have been submitted to deny, counter, or explain the
new matter.” United States v. Chatman, 46 M.J. 321, 323 (C.A.A.F. 1997) (in-
ternal quotation marks and citation omitted). The CAAF further explained
that “if an appellant makes some colorable showing of possible prejudice, we
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United States v. Valentin-Andino, No. ACM 40185
will give that appellant the benefit of the doubt and ‘we will not speculate on
what the convening authority might have done’ if defense counsel had been
given an opportunity to comment.” Id. at 323–24 (quoting United States v.
Jones, 44 M.J. 242, 244 (C.A.A.F. 1996)).
2. Analysis
Appellant contends that the convening authority erred by not ensuring that
he was provided victim matters submitted by KG. Appellant similarly contends
that the convening authority erred by signing the Decision on Action memo-
randum, which included the convening authority’s decision on Appellant’s de-
ferment request, without providing him the opportunity to rebut the victim’s
matters. Appellant requests we not approve Appellant’s reduction to the grade
of E-1,6 or alternatively remand the case for new post-trial processing. The
Government concedes, and the record supports, that Appellant was not pro-
vided KG’s R.C.M. 1106A matters prior to the convening authority’s decision
on action. The Government argues Appellant is not entitled to relief because
he did not suffer prejudice, however if the court finds prejudice, we should re-
turn the record for new post-trial processing.
The convening authority made two distinct decisions at issue in his Deci-
sion on Action memorandum: (1) whether to grant Appellant sentencing relief
in the form of clemency; and (2) whether to grant Appellant’s request for defer-
ment of automatic forfeitures. As to the first decision, and without any clem-
ency matters submitted by Appellant, the convening authority decided to take
no action on both the findings and sentence. As to the second decision, the con-
vening authority decided to deny Appellant’s request for deferment after con-
sidering new victim matters but before Appellant had the opportunity to re-
view or comment on them. We conclude our court’s finding in Spears, that “the
concepts of basic fairness and procedural due process” require service and op-
portunity to comment in the context of a waiver request, also apply here. 48
M.J. at 775. If a convening authority considers matters submitted by a crime
victim before acting on a deferment request, then the convening authority first
must provide to an appellant notice of those matters and an opportunity to
respond. As Appellant did not have that opportunity here, we find the conven-
ing authority abused his discretion in denying Appellant’s deferment request.
We now turn our attention to prejudice. The Government’s answer to this
assignment of error cites Chatman for the proposition that “some colorable
6 Appellant raises reduction in grade only as a remedy to the Government’s failure to
submit victim’s matters to him. He did not request reduction in grade as part of any
clemency request to the convening authority; he never submitted a clemency request.
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showing of possible prejudice” is the standard for post-trial rebuttal matters.
46 M.J. at 323–24. In this case, we agree.
The Decision on Action memorandum annotates the convening authority
“considered matters timely submitted by the accused under [R.C.M] 1106 and
the victim under [R.C.M.] 1106[A].” This statement does not distinguish be-
tween considering KG’s R.C.M. 1106A matters for clemency, on the one hand,
or the deferment decision, on the other. We have separately considered
whether Appellant has met his burden as to prejudice regarding the convening
authority’s decisions on (1) clemency and (2) deferment. We reach different
conclusions as to each decision.
a. Clemency Decision
Appellant has not shown a colorable showing of possible prejudice regard-
ing the convening authority’s clemency decision. Pursuant to Article 60a,
UCMJ, 10 U.S.C. § 860a, the convening authority was authorized to take ac-
tion on Appellant’s sentence by reducing his term of confinement and reduction
in grade. However, Appellant did not request clemency during the post-trial
processing of his case; he only requested deferment. Moreover, Appellant’s dec-
laration on appeal does not include rebuttal matters he would have submitted
to the convening authority regarding clemency in response to KG’s submission
of matters for consideration on the decision on action under Article 60a, UCMJ.
See Chatman, 46 M.J. at 323. His singular focus was the convening authority’s
deferment decision, and not his sentence to confinement or reduction in grade.
Under these circumstances, Appellant fails establish a colorable showing of
possible prejudice. We now turn to examine the deferment decision.
b. Deferment Decision
We find that Appellant has met his burden showing prejudice regarding
the convening authority’s deferment decision.7 It was within the convening au-
thority’s power to grant Appellant’s request to defer automatic forfeitures. Ap-
pellant describes in his post-trial declaration the rebuttal matters he would
have submitted to the convening authority in response to KG’s submission of
7 Although not raised by the parties, we acknowledge the possibility of concluding Ap-
pellant failed to establish a colorable showing of possible prejudice because of the de
minimis nature of the deferment at issue. However, we find that under the facts of this
case, it is speculative as to what the length of deferment might have been had the
Government properly served matters on Appellant. The Appellant was not served with
the convening authority’s Decision on Action memorandum prior to the entry of judg-
ment. Consequently, Appellant was denied an opportunity to file a post-trial motion
prior to entry of judgment. Had Appellant filed a post-trial motion, the issuance of an
entry of judgment would have been later and thereby increased the period of defer-
ment.
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United States v. Valentin-Andino, No. ACM 40185
matters. Specifically, Appellant states that “the victim urged the convening
authority not to grant [him] any kind of relief from [his] sentence, and [he]
believed this negatively affected [his] chances of getting deferment.” To counter
KG’s submission of matters, Appellant states he would have explained to the
convening authority how difficult his circumstances were as a result of being a
convicted sex offender, the dire economic circumstances then existing in his
home of Puerto Rico, and how deferment of forfeitures would have provided
him relief. We “will not speculate on what the convening authority might have
done” had Appellant been given the opportunity to comment on KG’s submis-
sion of matters. See Chatman, 46 M.J. at 323 (quoting Jones, 44 M.J. at 244).
We reject the Government’s argument that KG’s post-trial matters were
substantially the same as her victim impact statement, and, consequently, Ap-
pellant did not suffer prejudice resulting from the failure to serve him with the
statement. In support of the argument that KG’s post-trial matters were sub-
stantially the same as her victim impact statement admitted a trial, the Gov-
ernment directs our attention to the first four paragraphs of KG’s six-para-
graph statement which are identical to the matters she submitted at trial.
However, KG’s matters submitted under R.C.M. 1106A contain new infor-
mation which was not included in her sentencing victim impact statement.
We find the convening authority abused his discretion, and we find Appel-
lant’s alternate relief—new post-trial processing—is warranted with regards
to his deferment request only. Therefore, we conclude that the relief warranted
in this case is to provide Appellant that to which he is entitled: the right to be
served with KG’s submission of matters, and the opportunity to submit rebut-
tal matters for the convening authority’s consideration, before the convening
authority decides whether to grant Appellant’s deferment request.
III. CONCLUSION
The record of trial is REMANDED to the Chief Trial Judge, Air Force Trial
Judiciary, to (1) resolve a substantial issue with the post-trial processing; and
(2) correct the record of trial, which is deficient in that a substantially verbatim
audio recording of the court-martial proceedings is omitted.
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 shall return the record of trial to the convening author-
ity for new post-trial processing consistent with this opinion, specifically serv-
ing Appellant with victim matters submitted under R.C.M. 1106A and afford-
ing Appellant the opportunity to respond to such matters pursuant to R.C.M.
1106(d)(3) before the convening authority makes a decision on Appellant’s de-
ferment request. Further, a detailed military judge may:
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United States v. Valentin-Andino, No. ACM 40185
(1) Conduct one or more Article 66(f)(3), UCMJ, 10 U.S.C. § 866(f)(3), pro-
ceedings using the procedural rules for post-trial Article 39(a), UCMJ,
10 U.S.C. § 839, sessions;
(2) Modify the entry of judgment; and
(3) Correct the record under R.C.M. 1112(d) to account for the missing sub-
stantially verbatim audio recordings of the court-martial proceedings,
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 the court for completion
of appellate review under Article 66(d), UCMJ, 10 U.S.C. § 866(d).
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
11