This opinion is subject to administrative correction before final disposition.

Before GASTON , PENNIX , and MYERS Appellate Military Judges

_________________________ 

### UNITED STATES Appellee

v.
Michael NUZZO III Culinary Specialist Third Class (E

- 4 ), U.S. Navy Appellant

No. 20 20 00072

Decided: 9 August 2021
Appeal from the United States Navy

- Marine Corps Trial Judiciary

M ilitary Judge : Chad C. Temple
Sentence adjudged 10 December 2019 by a general court

- martial convened at Naval Base San Diego, California, consisting of a military judge sitting alone. Sentence in the Entry of Judgment : reduction to E

- 1, confinement for 24 months , and a bad

- conduct discharge

. For Appellant: Captain Kimberly D. Hinson , JAGC, USN
For Appellee: Lieutenant Commander Nicholas N. Joy, JAGC, USN Lieutenant Kevin G. Edwards II , JAGC, USNU nited States v. Nuzzo , NMCCA No. 202000072 Opinion of the Court

2 _________________________ This opinion does not serve as binding precedent, but may be cited as persuasive authority under

NMCCA Ru le of Appellate Procedure 30.2.

_________________________
PER CURIAM: Appellant was convicted, pursuant to his pleas, of one specifi cation of aggravated assault and two specifications of assault consummated by a battery, in violation of Article 128, Uniform Code of Military Justice [UCMJ], 1 for s trangling a fellow s ervice member, biting her, and striking her i n the face.Appellant raises as his sole assignment of error that the convening authority erred by taking no action on the sentence for offenses that were committed prior to 1 January 2019 ; he asks us to remand for remedial post

trial processing. W e find the convening authority’s lack of action on the sentence amounts to harmless error , and we affirm the findings and sentence

.


### I. B ACKGROUND

T he C harge and specifications that Appellant was convicted of occurred in N ovember 2017 and were re ferred to court

- martial in October 2019. A t trial, Appellant was sentenced to reduction to E

- 1, confinement for 24 months, and a bad

- conduct discharge. H is clemency request ask ed the convening authority to “favorably recommend[ ] th at the Naval Clemency and Parole Board grant [him] parole at the earliest opportunity.” 2 T he convening authority stated in his subsequent a ction , “I take no action on the findings or sentence in this case.” 3

1 10 U.S.C. § 928.

2 Clemency Request at 1.

3 Convening a uthority a ction at 2.U nited States v. Nuzzo , NMCCA No. 202000072 Opinion of the Court

3 

### II. D ISCUSSION As we have previously discussed, “ t he version of Article 60, UCMJ, in effect at the time of an appellant’s earliest offense is applicable to the extent it: requires convening authority action on the sentence

. . . and authorizes the convening authority to approve, disapprove, commute, or suspend the sentence.” 4 We retain jurisdiction for cases where the convening authority fails to take action on the sentence for offenses that occurred prior to 1 January 2019 if those cases were referred to court

- martial af ter 1 January 2019. 5 As this is such a case , we retain jurisdiction and test any errors for prejudice under Article 59(a), UCMJ. 6
U nder the version of Article 60, UCMJ, in effect at the time of the earliest of Appellant’s offense s resulting in conviction, the convening authority’s options we re to “approve, disapprove, commute, or suspend the sentence of a court

- martial in whole or in part.” 7 Since the statement, “I take no action on the findings or sentence in this case , ” does not satisfy any of these opti ons , we find the convening authority ’s a ction was erroneous

. However, we find Appellant wa s not prejudiced by the error . Appellant’s clemency request , as noted in the staff judge advocate’s review, was for the convening authority to favorably endorse Appellant’s parole request to t he

4 United States v. Pearson , 81 M.J. 592, 601 n.21 (N

- M. Ct. Crim. App. 2021) (citing 2018 Amendments to the Manual for Courts

- Martial, United States , Exec. Order 13,825, 83 Fed. Reg. 9,889, 9,890 , sec 6.(b) (Mar. 1, 2018)). We are aware of our superior court’s recent decision in United States v. Brubaker

- Escobar,

__ _ M.J. __

_ , No. 20

- 0345 /AR , 2021 CAAF LEXIS 508 at *8, 10 (C.A.A.F. June 4, 2021) (holding that the President’s Executive Order “is inconsistent with the [Military Justice Act of 2016 [ MJA ] ] to the extent it orders convening authorities to apply pre

- MJA post

- trial procedures to cases in which no UCMJ a ction was taken before the MJA’s effective date, January 1, 2019 , ” and that the Executive Order can no longer be used to apply the old Article 60, UCMJ “to cases in which no action was taken under the UCMJ before January 1, 2019”). We are also aware of CAA F ’s subsequent vacation of that holding and grant ing of reconsideration in that case due to the appellant and appellee’s joint motion “citing for the first time a statute directly relevant to the granted issue.” United States v. Brubaker

- Escobar , ___ M.J. ___, No. 20

- 0345/AR, 2021 CAAF LEXIS 683 at *1 (C.A.A.F. July 19, 2021). As CAAF ’s interpretation of the law is currently unsettled, we maintain and apply the precedent we established in Pearson.

5 Brubaker

- Escobar , ___ M.J. ___, 2021 CAAF LEXIS 683 at * 17

. 6 See id.

7 Article 60(c)(2)(B) (2016) , UCMJ

.U nited States v. Nuzzo , NMCCA No. 202000072 Opinion of the Court

4 Naval Clemency and Parole Board , and thus does not contain any “matters that may reasonably tend to affect the convening authority’s decision whether to disapprove any findings of gu ilty or to approv e the sentence.” 8 As the clemency request was beyond the scope of R.C.M. 1105, we find that a ny lack of response by the convening authority is not prejudicial and th erefore , as in Pearson , “the convening authority’s failure to take action on the sentence c onstitutes harmless error.” 9



### III. C ONCLUSION After careful consideration of the record and briefs of appellate counsel, we have determined that the findings and sentence are correct in law and fact and that no error materially prejudicial to Appellant’s substa ntial rights occurred. 10
T he findings and sentence in the Entry of Judgment are AFFIRMED

.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court

8 Rule for Courts

- Martial [ R.C.M. ] 1105(b).

9 Pearson , 2021 CCA LEXIS 130, at *18.

10 Articles 59 & 66, UCMJ

.