This opinion is subject to administrative correction before final disposition.

Before HOL IFIELD , GERRITY , and DEERWESTER Appellate Military Judges

_________________________ 

### UNITED STATES Appellee

v.
M axwell E

. URBONAS Information Systems Technician Third Class (E

- 4 ), U.S. Navy Appellant

No. 201900 298

Decided: 1 6 April 202 1
Appeal from the United States Navy

- Marine Corps Trial Judiciary
Military Judge : Wilb u r Lee
Sentence adjudged 16 August 2019 by a speci al court

- martial convened at Joint Base Pearl Harbor

- Hickam , Hawaii, consisting of a military judge sitting alone

. Sentence in the Entry of Judgment: reduction to E

- 1, for feiture of $1 , 537 per month for 6 months, confinement for 6 months , and a bad

- conduct discharge

.
For Appellant: Captain Jeremiah Sullivan , JAGC, USN
For Appellee: Brian K. Keller, Esq.United States v. Urbonas , NMCCA No. 201 900 298 Opinion of the Court

2 _________________________ This opinion does not serve as binding precedent , but

may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2(a).

_________________________

PER CURIAM: Appellant was convicted , in accordance with his plea, of one specification of indecent language, in violation of Article 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 934 and submitted his case for review without assignment of error. Th is Court specified three issues : I. Was Appellant prejudiced by that portion of his sentence awarding forfeiture of $1 , 537 per month for six months when the plea agreement ordered “ two

- thirds forfeitures will be adjudged ” without specifying the exact amount each month or the number of months, and the forfeiture amount was in violation of Rule for Courts

- Martial 1003(b)(2)?
II. Was Appellant prejudiced by that portion of his sentence awarding confinement for “ six months ” i nstead of the maximum “ 180 days ” as set forth in the plea agreement?
III. Was A ppellant prejudiced by the omission from the E ntry of J udg ment and the confinement order of the court

- ordered 91 days of pre

- trial confinement credit?
We find no error materi ally prejudicial to Appellant ’ s substantial rights with regard to the lack of specificity of a term for forfeitures under Issue I , where the military judge advised Appellant and all parties agreed that under the plea agreement the term of adjudged forfeitu re s was intended to permit a duration of up to 12 months. However, t he G overnment concedes the remaining error for Issue I, which

w e find materially prejudicial to Appellant ’ s substantial rights , as the military judge sentenced A ppellant and included in the Entry of Judgment [ EOJ ]

a forfeiture amount in violation of Rule for Courts

- Martial [ RCM ] 1003 (b)(2)

. We provide relief in the decretal paragraph and modified EOJ.
We further find it was error for the military judge to vio late the terms of the plea agreement by exceeding the 180

- day maximum confinement limita-United States v. Urbonas , NMCCA No. 201 900 298 Opinion of the Court

3 tion ( because “ six months ” at the time sentence was adjudged wa s equal to 181 days ) ; and to fail to include the 91 days of pre

- trial confinement credit in the EOJ

. However , we find no error materially prejudicial to A ppellant ’ s substantial rights occurred because the military brig corrected the military judge ’ s error by applying the correct 180

- day maximum for confinement and gave Appellant 91 days of pre

- trial confinement credit

. 1 The EOJ will be modified to correctly reflect the confinement amount of 180 days and the 91 days of pre
- trial confinement credit

.



### I. BACKGROUND
As part of his plea agreement with the convening authority, Appellant, an E

- 4, waived his righ t to a trial by members and requested trial by military judge alone. As such, the provisions outlined in RCM 705 ( Plea agreements ) and RCM 1002(d)(2) ( Sentencing determination ) applied to Appellant ’ s case. The plea agreement required a sentence that include d a bad conduct discharge, confinement within a range of 120 to 180 days, reduction to E

- 1, and

“ two

- thirds forfeitures ”

— without specifying the ir duration. The military judge advised Appellant that the plea agreement permitted a maximum sentence of a bad

- conduct discharge, confinement of six months, reduction to E

- 1 , and forfeiture of two

- thirds pay for twelve months. Both trial and defense counsel, as well as Appellant, agreed with the military judge ’ s interpretation of the plea agreement. T he milit ary judge accepted the plea agreement

a s binding on the parties and the court

- martial. 2
T he military judge did not impose a sentence within the limitations set forth in the plea agreement, but instead sentenc ed Appellant t o a bad

conduct discharge, confinement f or “ six months ” ( instead of 180 days ) , reduction to E

- 1 , and forfeiture of $1 , 537 per month for six months ( instead of $ 1 , 120 per month for six months , which is the whole dollar amount of two

-

1 In the military brig’s prisoner sentence computation dated 19 August 2019 (3 days after the sentence was adjudged), it was noted the military judge sentenced Appellant to six months of confinement but the maximum under the plea agreement was 180 days, and Appellant was given the 91 days of pre

- trial confinement credit. It appears no one brought this issue to the attention of the convening authority or the military judge who could have corrected this prior to the EOJ. Had the Government brought this change by the military brig to the attention of the convening authority and the military judge, these issues could have been resolved at that time.

2 See UCMJ art. 53a(d); see also RCM 1002(a)(2) ( “ [T] he court

- martial shall sentence the accused in accordance w ith the limits established by the plea agreement

. ” ).United States v. Urbonas , NMCCA No. 201 900 298 Opinion of the Court

4 thirds pay for an E

- 1 with over four months of service )

. 3 The military judge also ordered 91 days of pre

- trial confinement credit. T he convening authority took no action on the findings or sentence. The military judge ’ s sentence , as announced, was included in the EOJ ; however , the EOJ failed to include the 91 days of pre

- trial confinement credit

. 4 Appellant requested a deferment of confinement, which was denied without explanation.



### II. DISCUSSION

A. Forfeiture of P ay When a military judge accepts a plea agreement containing a sentence limitation , th e accused shall be sentenced in accordance with the limit ation s in the plea agreemen t. 5 If a sentence includes a reduction in grade, the maximum forfeiture is based upon the grade to which the accused is reduced. 6 After reducing Appellant to E

- 1 in accordance with the plea agreement, the military judge imposed forfeitures of $1 , 537 per month for 6 months , incorrectly calculating “two

- thirds forfeitures ” based on E

- 4 pay

. When a court exceeds a sentencing limitation, it is plain error. 7 The G overnment concedes this error. As a punishment, p artial forfeitures “ shall state the exact amount in whole dollar s to be forfeited each month and the number of months the forfeitures will last. ” 8 After mandating reduction to E

- 1, the plea agr eement failed to mandate forfeitures in an exact amount or for any duration , stating only th at “[t] wo
- thirds forfeitures will be adjudged.” T h is term was ambiguous, leaving neither a minimum n or maximum timeframe. “ Interpretation of

3 The military judge was required to adjudge forfeitures of two

- thirds at the plea agreement ’ s mandated reduced rank of E

- 1; however , the military judge incorrectly used the rank of E

- 4 and miscalculated the two

- thirds pay for an E

- 4 as $1 , 537 (the correct amount for an E

- 4 would have been $1,538 per month). If forfeitures were calculated correctly, using the pay scale for 2019

— the year Appellant was sentenced

— it should have been $1,120 per month for Appellant ’ s reduced rank of E

- 1

.

4 The sentence adjudged was also included in the Confinement Order, and the Statement of Trial Results , which will be ordered corrected in the decree.

5 R CM 1002(a)(2)

.

6 RCM 1003(a)(2).

7 See generally United State s v. Dinger , 77 M.J. 447, 453 (C.A.A.F. 2018 ) ; United States v. Stewar t , 62 M.J. 291, 295 (C

. A

. A

. F

. 2006)

.

8 RCM 1003(b)(2).United States v. Urbonas , NMCCA No. 201 900 298 Opinion of the Court

5 a [plea agreement] is a question of law, which we review de novo. 9 We will look at the terms of the plea agreement , as well as Appellant ’ s “ understanding of the terms of [ the ] agreement as reflected in the record as a whole. 10 The military judge is required to ensure that the accused understands the impact of a p lea agreement and th at the parties agree to its terms. 11 It is cri tical for any ambiguities or errors to be clarified and corrected , and the courts have “ long emphasized the critical role that a military judge and

counse l must play to ensure that the record reflects a clear, shared understanding of the terms of any [plea] agreement between an accused and the convening authority. ” 12After originally discussing the maximum punishment with regard to forfeitures, the military judge specifically addressed the ambiguity in the plea agreement regarding the duration of forfeitures. He asked the parties what th e duration of the forfeitures was intended to be, as the military judge interpreted the term as giving him discret ion to adjudge forfeitures of two

thirds pay for up to 12 months. All parties agreed with the military judge as to the parties ’ intent, and the plea was accepted in accordance with Article 53a , UCMJ, and R.C.M 910(f)(4)

. Th e duration of forfeiture s was not raised by the D efense at any point during the case, in the post

- trial processing of the

case , or on appeal until this Court raised the issue

. 13

B. Confinement E xceeds Sentencing Limitation The plea agreement allowed for a confinement range between 120

- 180 days. The military judge adjudged , and included in the EOJ , a sentence of confinement for “ six months ”

. B ased on the tim ing of the calendar at sentencing , six months equaled 181 days. This error was not objected to by either trial or defense counsel

. Howev er, the military brig corrected this error and changed the total confinement to 180 days in accordance with the plea. Therefore no error materially prejudicial to Appellant ’ s substantial rights

9 United States v. Lundy , 63 M.J. 299, 301 (C.A.A.F. 2006)

.

10 See id

.

11 See RCM 910(f)(4); see also United States v. King
, 3 M.J. 458 (C.M.A. 1977) ; United States v. Green
, 1 M.J. 453, 456 (C.M.A. 1976)

.

12 United States v. Williams
, 60 M.J. 360, 362 (C.A.A.F. 2004)

.

13 A utomatic forfeiture of two

- thirds pay applies during the period of confineme nt

. See U.C.M.J

. art 58(b).United States v. Urbonas , NMCCA No. 201 900 298 Opinion of the Court

6 occurred , as Appellant did not serve more than 180 days

. We will correct t he EOJ to comply with the plea agreement

.
C. Summary Denial of Deferment According to the EOJ, Appellant requested a deferment of confinement , and the convening authority summarily denied the request without stating the basis for doing so. “ Wh en 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. ” 14 Accordingly, the failure to state in writing the basis for the denial of a deferment request constitutes error. 15 We review the denial of a request for deferment for an abuse of discretion. 16 However, when a convening a uthority does not state a reason for its action, we are left unable to assess any abuse of discretion since “ the basis for the exercise of that discretion is unknown. ” 17 Therefore , “ we must independently review the facts of this case an d determine whether d eferment was appropriate, and if it was, what remedy should follow. ” 18 Our analysis of the factors enumerated in RCM 1103(d)(2) convinces us that it was appropriate to deny the deferral of confinement request . Appellant ’ s crimes involved indecent languag e to an undercover officer related to the sexual abuse of a child. The crime and the facts underlying Appellant ’ s offense were serious

. The sentence as modified by this Court in accordance with the plea agreement includes a bad

- conduct discharge, reduction to E

- 1, confinement for 180 days , and forfeiture of $1 , 120 per month for six months. Under RCM 1103(d)(2), Appellant has the burden of showing that the interest s of Appellant and the community in deferral outweigh the community ’ s interest in imposition of the punishment on the effective date. In balancing the interests of Appellant

— to help him go to work and school and potentially to obtain therapy

— against the seriousness of the crimes and the s entence as modified by this Court in accordance with the pl ea agreement, we find Appellant did not meet his burden. It was therefore appropriate to deny the defer-

14 United States v. Sloan , 35 M.J. 4, 7 (C.M.A. 1992).

15 See id

.

16 United States v. Brownd , 6 M.J. 338, 340 (C.M.A. 1979).

17 Sloan , 35 M.J. at 6.

18 United States v Phillips , NMCCA 20040865, 2006 CCA LEXIS 61 at *28

- 9 (N

- M. Ct. Crim. App. 16 March 2006) (unpub lished ).United States v. Urbonas , NMCCA No. 201 900 298 Opinion of the Court

7ment request. Accordingly, we find that Appellant did not suffer any prejudice from the convening authority not articulating in writing the specific

reas ons for his denial.

D. Deficient Entry of Judgment , Statement of Trial Results , and Con

finement Order The Entry of Judgment and Confinement Order failed to reflect the 91 days of pretrial confinement credit ordered by the military judge ; both documents and the Statement of Trial Results also reflected improper amounts for both confinement and forfeiture s

. Although no error materially prejudicial to Appellant ’ s substantial rights occurred, Appellant is entitled to have court

martial records that correctly reflect the content of his proceeding. 19



### III. CONCLUSION

In accordance with RCM 1111(c)(2), we modify the Entry of Judgment and direct that it be included in the record. The Statement of Trial Results and the Confinement Order are ordered to be corrected in accordance with this opinion. At appellant ’ s reduced grade of E

- 1 with over four months of service , forfeiture of two

- thirds pay per month for a period of six months calculates in whole dollars to $1,120 pay per month for six months. Accord ingly, the findings and only so much of the sentence as provides for reduction to E

- 1, forfeiture of $1 ,120 pay per month for six months, confinement for 180 days, and a bad

- conduct discharge are affirmed. All rights, privileges, and property of which Appe llant has been deprived by virtue of execution of forfeitures that have not been affirmed will be restored. We issue a corrected Entry of Judgment in accordance with Rule for Courts

- Martial 1111(c)(2). After careful consideration of the record, submitted without assignment of error, we have determined that the findings and sentence as modified are now correct in law and fact and that no error materially prejudicial to Appellant ’ s substantial rights occurred. 20 Accordingly, the findings and sentence in the EOJ as modified are AFFIRMED

.

19 United States v. Crumpley, 49 M.J. 538, 539 (N

- M. Ct. Crim. App. 1998).

20 UCMJ arts. 59, 66

.United States v. Urbonas , NMCCA No. 201 900 298 Opinion of the Court

8 FOR THE COURT:

RODGER A. DREW, JR. Clerk of CourtUNITED STATES



### v.

Maxwell E. URBONAS Information Systems Technician Third Class (E

- 4), U.S. Navy Accused NMCCA NO. 201900298

ENTRY OF JUDGMENT

As Modified on Appeal

1 6 April 2021

On 16 August 2019, t he Accused was tried at Joint Base Pearl Harbor

- Hickam, Hawaii, by a special court

- martial, consisting of a military judge sitting alone. Military Judge Wilbur Lee , presid ed

.


### FINDINGS
The following are the Accused’s pleas and the Co urt’s findings to all offenses the convening authority referred to trial:

Charge I : Violation of Article 80 , Uniform Code of Military Justice , 10 U.S.C. § 880

. Plea: Not Guilty. Finding: D ismissed.
Specification : Attempted Production of Child Pornography from on or about 22 March 2019 until on or about 25 March 2019

. Plea: Not Guilty. Finding: D ismissed.

Charge I I: Violation of Article 82 , Uniform Code of Military Justice , 10 U.S.C. § 882

. Plea: Not Guilty. Finding: D ismissed.United States v. Urbanos , NMCCA No. 201900298 Modified Entry of Judgment

10 S pecification: Solicitation of Forcible Pandering from on or about 22 March 2019 until on or about 25 March 2019

. Plea: Not Guilty. Finding: D ismissed.

Charge I II: Violation of Article 134 , Uniform Code of Military Justice , 10 U.S.C. § 9 34

. Plea: Guilty. Finding: Guilty.

S pecification: Communicating Indecent Language from on or about 22 March 2019 until on or about 24 March 2019

. Plea: Guilty. Finding: Guilty.



### SENTENCE
On 16 August 2019, the Accused was sentenced by a military judge. The Accused was adjudged the following sentence as modified by this Court: Reduction to pay grade E

- 1.
Confinement for 180 days. Forfeiture of $1,120 pay per month for 6 months.
A bad

- conduct discharge.
The Accused has served 91 days of pretrial confinement and shall be credited with 91 days of confinement already served, to be deducted from the adjudged sentence to confinement.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court