United States v. Perez

UNITED STATES, Appellant
v.
Adam P. PEREZ, Senior Airman
U.S. Air Force, Appellee
No. 08-5002
Crim. App. No. 36799
United States Court of Appeals for the Armed Forces
Argued February 6, 2008
Decided March 18, 2008
PER CURIAM. STUCKY, J., filed a separate opinion concurring in
the result.
Counsel
For Appellant: Captain Jason M. Kellhofer (argued); Colonel
Gerald R. Bruce and Major Matthew S. Ward (on brief).
For Appellee: Captain Tiaundra Sorrell (argued); Colonel Nikki
A. Hall (on brief); Major Shannon A. Bennett.
Military Judge: Print Maggard
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Perez, No. 08-5002/AF
PER CURIAM:
A general court-martial composed of a military judge
sitting alone, convicted Appellee, pursuant to mixed pleas, of
disobeying an order, rape, and assault consummated by battery,
in violation of Articles 92, 120, and 128, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 892, 920, 928 (2000). The
sentence adjudged by the court-martial included a bad-conduct
discharge, confinement for eighteen months, and reduction to the
lowest enlisted grade. The convening authority modified the
findings by dismissing the charge and specification for rape,
and approved that portion of the sentence providing for a bad-
conduct discharge, confinement for 206 days, and reduction to
the lowest enlisted grade. The United States Air Force Court of
Criminal Appeals affirmed the findings, as modified by the
convening authority, and approved that portion of the sentence
providing for confinement for six months and reduction to the
lowest enlisted grade. United States v. Perez, No. ACM 36799,
2007 CCA LEXIS 364, at *10-*11, 2007 WL 2791251, at *4 (A.F. Ct.
Crim. App. Sept. 12, 2007) (unpublished).
Upon certification under Article 67(a)(2), UCMJ, 10 U.S.C.
§ 867(a)(2) (2000), we affirm the decision of the Court of
Criminal Appeals. As a matter of command prerogative, the
convening authority may modify or dismiss charges and modify the
sentence. See Article 60(c)(1), UCMJ, 10 U.S.C. § 860(c)(1)
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United States v. Perez, No. 08-5002/AF
(2000). Although the convening authority is required to take
action on the sentence, the convening authority is not required
to act on the findings. The broad authority under Article
60(c), UCMJ, includes the power to dismiss charges and reassess
a sentence to cure a legal error or moot allegations of such.
The Court of Criminal Appeals has an independent responsibility
to “affirm only such findings of guilty, and the sentence or
such part or amount of the sentence, as it finds correct in law
and fact and determines, on the basis of the entire record,
should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c)
(2000). The action taken on appellate review in this case was
within the power granted to the Court of Criminal Appeals by
Article 66(c), UCMJ. See United States v. Sales, 22 M.J. 305(C.M.A. 1986).
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United States v. Perez, No. 08-5002/AF
STUCKY, Judge (concurring in the result):
The Judge Advocate General of the Air Force certified this
case to this Court for review of whether the convening authority
properly reassessed Appellee’s sentence. The majority holds
that the Air Force Court of Criminal Appeals’ (AFCCA) action was
within the power granted to it by Article 66(c), Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000). I agree
that, under our precedents, the AFCCA did not err; however, I
have serious doubt about some of those precedents and therefore
write separately.
As the majority notes, the convening authority’s action on
the findings and sentence of a court-martial “is a matter of
command prerogative involving [his] sole discretion.” Article
60(c)(1), UCMJ, 10 U.S.C. § 860(c)(1) (2000). He has “absolute
power to disapprove the findings and sentence, or any part
thereof, for any or no reason, legal or otherwise.” United
States v. Boatner, 20 C.M.A. 376, 378, 43 C.M.R. 216, 218
(1971). In performing his post-trial duties, “his role is
similar to that of a judicial officer,” and there exist
“virtually no limitations upon his ameliorative judicial
powers.” United States v. Fernandez, 24 M.J. 77, 78 (C.M.A.
1987); United States v. Hamilton, 39 C.M.R. 356, 357 (A.B.R.
1968).
United States v. Perez, No. 08-5002/AF
In United States v. Reed, 33 M.J. 98 (C.M.A. 1991), this
Court noted that a convening authority is not required to
correct legal errors, but “it is entirely appropriate and
certainly commendable for a convening authority in his
discretion to undertake curing such an error before the case
reaches appellate levels.” Id. at 99. But “[w]here he does so,
his action must be guided by the same rules applicable to
appellate authorities.” Id. The accused must be “‘placed in
the position he would have occupied if an error had not
occurred.’” Id. at 99-100 (quoting United States v. Hill, 27
M.J. 293, 296 (C.M.A. 1988)). In other words, the convening
authority must either approve a sentence no greater than the
sentencing authority would have adjudged absent the error or
order a sentence rehearing. See id. (citing United States v.
Sales, 22 M.J. 305, 308 (C.M.A. 1986); United States v. Suzuki,
20 M.J. 248, 249 (C.M.A. 1985)).
I have serious doubt as to whether this holding can be
squared with the plain language of Article 60, UCMJ, or the
traditional understanding of the convening authority’s powers
set out above. However, as this issue was neither briefed nor
argued in this case, and the AFCCA’s action was not erroneous
under existing precedent, I concur in the result.
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