Navy-Marine Corps Court of Criminal Appeals

United States v. Avellaneda,
__ M.J. ___ (N-M. Ct. Crim. App. 2024)

"Appellant appealed his findings and sentence to this Court under Article 66(b)(1), UCMJ, which allows a convicted servicemember to provide a notice of appeal to this Court." He was convicted of dereliction and obstructing justice. As part of a PTA, his only punishment was RiR to E-6. Further, the CA agreed not to Adsep him and to favorably endorse a retirement request. He would retire as an E-6 and be paid as an E-6. But he can later apply to be reinstated to E-8. See 10 U.S.C. 1407(f)(2)(A).

During his plea colloquy, stated that on 25 January 2021 during this evolution, he negligently failed to fully inspect several midshipmen candidates (by not looking directly at them during the inspection). In certain other cases, he failed to document on a spreadsheet the new tattoos that he had observed during the inspection. Later, Appellant became aware that an investigation into unauthorized tattoos had commenced and a “Body Alteration Inspection” was imminent. One of the midshipmen candidates who Appellant had inspected had in fact obtained a large tattoo that ran the entire length of his back. Appellant falsely recorded that the midshipman candidate had not obtained any new tattoos. This midshipman candidate approached Appellant and disclosed to him that he was planning to provide an altered (backdated) photograph intended to fool the investigator into thinking that the new tattoo was, in fact, not new. Appellant encouraged him to provide this doctored photograph to the investigator as evidence.

The issues relate to the pretrial agreement and in some measure adjusting to a regime of plea bargaining and sentencing. See United States v. Colletti, NMCCA No. 202300104 (N-M Ct. Crim. App. May 9, 2024) (published Order) (addressing the Military Justice Review Group proposal for a new statute, Article 53a, intended to adopt federal civilian plea bargaining practice as set forth in Fed. R. Crim. Pro. 11(c)(1). In Colletti, 

As the MJRG explained, there are two types of plea agreements in federal practice related to sentencing. Under Rule 11(c)(1)(B), or a “B plea,” a prosecutor agrees to make a recommendation to the judge that a specific sentence or sentencing range is appropriate. But under a “C plea,” the judge is bound by the parties’ agreement to a specific sentence or sentencing range. And under a “C plea,” the judge has only three options: (1) accept the agreement and adjudge the sentence (or within the limits of the sentencing range) agreed to by the parties; (2) reject the agreement entirely; or (3) defer the decision until after review of the presentence report.

Congress ultimately adopted the MJRG’s proposal for Article 53a, UCMJ, in the MJA 16. As a result, while military servicemembers continue to be able to bargain for how the convening authority will dispose of one or more charges and specifications, they may also now bargain for specific limitations on the sentence that may be adjudged for one or more charges and specifications just like defendants in federal court.

United States v. Hemry

The Appellant was investigated for online sexual communications with a purported minor. He was placed in pretrial confinement. During his interrogations, he had admitted to other similar misconduct.

The Appellant had two trials. The government proceeded to trial on the initial misconduct and continued a lengthy investigation into the self-disclosed additional misconduct. (The Appellant litigated and preserved an Article 10 motion.) The Appellant was credited day for day for pretrial confinement.

Then came the second trial where it appears he was trying to double-dip on the confinement credit. NMCCA walks us through the pretrial confinement credit analysis where there are overlapping convictions and trials.

Bottom line, in this case, the Appellant gets credit from the date he finished his first confinement and was then continued in pretrial confinement.

On 28 June (day 225), Appellant pleaded guilty to charges in Hemry I. The military judge awarded nine months and fifteen days of confinement, and a dishonorable discharge. He received 224 days of pretrial confinement credit.

On 6 July (day 233), the Government referred charges in Hemry II.

On 14 July (day 241), Appellant was released from confinement for his convictions in Hemry I. He was then immediately returned to pretrial confinement. 

Appellant pleaded guilty on 29 November (day 338). The military judge sentenced Appellant on 30 November to "59" months confinement (the sentence for each specification to run concurrent and 59 being the longest term).

In some way, this case demonstrates the value of "severance" by the Government through its charging decisions: (1) there was a conviction and confinement reasonably quickly, (2) while the accused was serving that sentence, the Government had fewer issues with a later speedy trial motion, (3) and they may have gotten consecutive sentences. Here the MJ gave 9.5 months for H-I. Then "59" for H-II = 68.5. Considering that the MJ in H-II ordered concurrent service of confinement, perhaps she'd have done the same if all offenses were charged in the same trial? Or, perhaps there could have been an omnibus PTA in H-I? Sure, if this is done regularly the defense may raise a joinder of all known offenses issue, but if successful, they likely concede the speedy trial issue. The argument for joinder is of less significance now than it was under older versions of the MCM which had essentially mandated joinder.