United States v. Werner

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201700238
_________________________
UNITED STATES OF AMERICA
Appellee
v.
ALEX J. WERNER
Yeoman Second Class (E-5), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Commander Jonathan T. Stephens, JAGC, USN.
Convening Authority: Commander, Navy Region Southwest, San
Diego, California.
Staff Judge Advocate’s Recommendation: Captain Donald C. King,
JAGC, USN.
For Appellant: Major Maryann N. McGuire, USMC.
For Appellee: Brian K. Keller, Esq.
_________________________
Decided 4 April 2018
______________________
Before H UTCHISON , S AYEGH , and H INES , Appellate Military Judges
_________________________
This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
_________________________
PER CURIAM:
The opinion released by the court on 30 March 2018 is hereby withdrawn
and the following substituted therefor.
A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of one specification of rape of a child and
four specifications of sexual abuse of a child in violation of Article 120b,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920b (2012). The
United States v. Werner, No. 201700238
military judge sentenced the appellant to 26 years’ confinement, reduction to
paygrade E-1, forfeiture of all pay and allowances, and a dishonorable
discharge. The convening authority (CA) approved the sentence as adjudged.
Pursuant to a pretrial agreement, the CA suspended confinement in excess of
17 years, deferred and waived the automatic forfeitures for six months,
deferred and suspended the adjudged forfeitures for six months, and
suspended all automatic and adjudged reductions to paygrade E-1 for six
months.
Although not raised as error, the CA’s language suspending the
appellant’s adjudged reduction and forfeiture of pay purports to reduce the
appellant to E-1 and reinstate the adjudged forfeitures following the
suspension period:
[E]xecution of reduction to paygrade E-1 is suspended for a
period of six (6) months from this action, at which time, unless
sooner vacated, the part of the adjudged reduction that was
suspended will be approved.
...
[E]xecution of adjudged forfeiture of pay is suspended for a
period of six (6) months from the date of this action . . . . At the
end of the suspension period, unless sooner vacated, all
suspended adjudged forfeitures will be approved as adjudged.1
The CA attempted to postpone or defer execution of the reduction in grade
and adjudged forfeitures for six months—presumably to coincide with the
automatic forfeiture waiver period so that the appellant’s dependents would
continue to receive pay at the E-5 rate. The CA, unable to defer the reduction
or adjudged forfeitures past the date of his CA’s action, apparently attempted
to do so using a suspension.2 However, “[e]xpiration of the period provided in
the action suspending a sentence or part of a sentence shall remit the
suspended portion unless the suspension is sooner vacated.” R.C.M. 1108(e)
(emphasis added). “Remission cancels the unexecuted part of a sentence to
which it applies.” R.C.M. 1108(a). Therefore, absent a vacation proceeding in
1 CA’s Action of 17 Jul 2017 at 3.
2 See RULE FOR COURTS-MARTIAL (R.C.M.) 1101(c)(1), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2016 ed.) (“Deferment of a sentence to . . . forfeitures, or
reduction in grade is a postponement of the running of the sentence.”).
2
United States v. Werner, No. 201700238
accordance with R.C.M. 1109, any unexecuted part of the appellant’s
sentence will be remitted at the conclusion of the period of suspension.3
Thus, the CA’s attempt to execute a cancelled part of the sentence was
ultra vires and therefore a nullity. See United States v. Villalobos, No.
201700097, 2018 CCA LEXIS 26, at *7, unpublished op. (N-M. Ct. Crim. App.
26 Jan 2018) (per curiam) (“Executing a cancelled part of a sentence is ultra
vires and thus a nullity.”) (citing United States v. Tarniewicz, 70 M.J. 543,
544 (N-M. Ct. Crim. App. 2011) (CA’s action directing execution of punitive
discharge in violation of Article 71, UCMJ, was ultra vires and thus a
nullity)). See also United States v. Lowry, No. 201700199, 2018 CCA LEXIS
84, at *4, unpublished op. (N-M. Ct. Crim. App. 26 Feb 2018) (per curiam).
However, “[r]ather than unnecessarily ordering a new CA’s action in this
case, we take the existing CA’s action and disregard any portion that is not
permitted by law.” United States v. Kruse, 75 M.J. 971, 975 (N-M. Ct. Crim.
App. 2016).
The findings and sentence approved by the CA are affirmed. The
supplemental court-martial order will reflect that the appellant’s suspended
adjudged reduction to the paygrade of E-1 and the appellant’s adjudged
forfeiture of pay, unless sooner vacated, will be remitted following the
conclusion of the suspension period.
For the Court
R.H. TROIDL
Clerk of Court
3 See R.C.M. 1101(c)(6) (“Deferment of a sentence to . . . forfeitures, or reduction
in grade ends when: (A) The convening authority takes action under R.C.M. 1107 . . .;
[or] (B) [t]he . . . forfeitures, or reduction in grade [is] suspended[.]”).
3