## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, YOB, and ALDYKIEWICZ Appellate Military Judges

UNITED STATES, Appellee

v. Specialist PHILLIP L. PIERCE United States Army, Appellant

ARMY 20080009

Headquarters, I Corp s and Fort Lewis Michelle Shields, Military Judge Colonel James Kevin Lovejoy, St aff Judge Advocat e (pretrial) Colonel Jeffrey C. McKitrick, St aff Judge Advocat e (post-trial)

For Appellant: Captain Wi lliam Jeremy Stephens, JA (argued); Colonel Mark Tellitocci, JA; Ma jor Bradley Voorhees, JA; Captai n William Jeremy Stephens, JA (on brief).

For Appellee: Captain Benj amin M. Owens-Filice, JA (a rgued); Colonel Norman F. J. Allen, III, JA; Lieu tenant Colonel Martha L. Foss, JA; Major Lisa L. Gumbs, JA; Captain Benjamin M. Owens -Filice, JA (on brief).

27 February 2012

------------------ ----------------- ----------------- MEMORANDUM OPINION ON FURTHER REVIEW

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This opinion is issued as an unpublished opinion, as such, does not serve as precedent.

Per Curiam:

On 8 November 2010, this court issued a memorandum opinion pertaining to this case, which affirmed th e finding of guilty as to Char ge I and its sp ecifications and to the specification of Ch arge II, except to the word s “in violation of Title 18, United States Code, Sectio n 2422.” On 8 Decemb er 2011, our superi or court vacated

our decision and returned th e record of trial to The Judge Advoca te General of the Army for remand to this court for consideration in light of United States v. Pierce

, 70 M.J. 391 (C.A.A.F. 2011) wh ere our superior court conc luded that the military judge’s instructions were pr oper under clause 3 of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 [h ereinafter UCMJ]. C onsequently, appellant’sPIERCE—ARMY 20080009

2 case is once again before this court for revi ew under Article 66, UCMJ, 10 U.S.C. §

866.

A panel of officer and en listed members, s itting as a genera l court-martial, convicted appellant, contrary to his pleas, of separate specificat ions of attempting to commit indecent acts with, and attempting to communicate indecent language to, a

minor in violation of Article 80, UCMJ, 10 U.S.C. § 880. The panel also convicted appellant of attempted enticement of a minor in violation of clauses 1, 2, and 3 of Article 134, UCMJ, 10 U.S.C. § 934, assimilating 18 U.S.C. § 2422. The panel sentenced appellant to a bad-conduct disc harge, confinement for fifteen months, forfeiture of all pay and allowances, and reduction to Private E-1. The convening authority approved the sentence except for the adjudged forfeitures. The convening authority also granted twenty days of confinement credit to attenuate possible prejudice due to post-trial delay.

In addition to our review of this case in light of United States v. Pierce

, 70

M.J. 391 (C.A.A.F. 2011), we also address appellant’s allegati on of illegal post-trial confinement for being held be yond the time authori zed by his approv ed sentence. With regards to this latter issue, we ag ree with Judge Conn and our predecessor panel (as set out immediately below), that ap pellant is entitled to relief, which we indicate in our decretal paragraph.

Excessive Post-Trial Dela y and Illegal Confinement

The record reflects that it took more than ten months for the government to prepare appellant’s 407 page record of trial and accompanying staff judge advocate ’s (SJA) recommendation, necessary for the convening authority to act on appellant’s sent ence. While the record contains contradictory info rmation, the date of appellant’s R.C.M. 1105 clemency s ubmission reflects that it was prepared before

the SJA served the authenticated re cord with his re commendation on the appellant or defense counsel, wh ich typically triggers submission of

R.C.M. 1105 and 1 106 matters.

In this anticipatory R.C.M. 1105/1106 subm ission, appellant’s defense counsel complain ed of the excessive de lay in prep aring the

record in violatio n of the standard s prescribed in United States v.

Moreno , 63 M.J. 129, 135 (C.A.A.F. 2 006). In response to these complaints, the SJA in his addendum essentially agreed the delay constituted legal error. As a remedy, the SJA recommended the convening authority disapprove any adjudged forfeitu res, and, “[t]o alleviate any perceived prejudice agai nst the accused,” credit appellant with “twenty (20) days of confinem ent credit against the sentence to

confinement.” On 19 November 2008, the conven ing authorityPIERCE—ARMY 20080009

3 followed the SJA recommendations and granted the recommended relief in approving appell ant’s sentence.

A convening authority’s action on sentence must be electronically transmitted to th e confinement facility holding a convicted prisoner no mo re than twenty-four hour s after it is complete. 1
Unfortunately, the action granti ng appellant clemency was not

transmitted to the conf inement facility until 16 December 2008, twentyseven days after the convening author ity’s action and five days after appellant’s 11 December 2008 release from confinement. 2 Additional documents appellant submitted dem onstrate that, had the confinement facility timely received convening author ity’s action reducing his confinement by twenty days , it would have adjust ed appellant’s actual

release date to 25 November 2008. Consequently, appellant served sixteen days of confinement in exce ss of what he should have served, considering appropriate credits.

The government urges us to char acterize the twenty-two days delay in transmitting appe llant’s action to the c onfinement fa cility after

action as a discre te period of delay separate from delay prio r to action for purposes of analyz ing prejudice under United States v. Moreno , 63 M.J. at 135. Because the convening authority took appropriate action effectively reducing appellant’s sentence for the period of delay between trial and action, we agree with the gover nment’s analysis. We find the convening author ity granted meaningful relief for post-trial delay prior to action and de lays subsequent to action resulting in excess confinement should be considered separately.

While we find the convening aut hority granted mean ingful relief for the delay prior to acti on, we agree appellant is entitled to ad ditional

relief unless we are convinced the delay between action and

transmission to the confinement f acility was harm less beyond a

1 See Army Regulation 27-10, Le gal Services: Military Jus tice [hereinafter AR 27- 10], para. 5-32(b) (1 6 November 2005).

2 Prior to the convening auth ority’s clemency, appellant’ s release date had been adjusted for good time, apparently generating the 11 December 2008 release date.

See Army Regulation 633-30, Mi litary Sentences to C onfinement, para. 13 (28 February 1989) and Dep’t of Def. Inst r. 1325.7-M, DoD Sent ence Computation Manual, para. C2.9 (27 July 2004) (C2, 9 March 2007) (outli ning standard “good time” confinement credit, which reduces the period of confinement by awarding a minimum release date, granted when there are no deductions fr om the credit for infractions).PIERCE—ARMY 20080009

4 reasonable doubt. United States v. Finch , 64 M.J. 118, 125 (C.A.A.F. 2006). We are unable to do so in this case.

We will provide the relief appe llant requests by ordering a monetary credit of full pay and allo wances at the grad e of E-4 for the sixteen day period of his illegal ly continued c onfinement from 25

November 2008 until 11 December 2008. Notwit hstanding that appellant was not otherwise entitled to pay and allowanc es during this period, our cour t has held this to be the appropriate reme dy for periods of illegal post-trial confinement. United States v. Hammond , 61 M.J. 676, 677 (Army Ct. Crim. App. 2005).

CONCLUSION

On consideration of the entire recor d, appellant’s assignm ents of error, including those issues personally raised by the appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982 ), and the decision of our superior court, we hold the findings of guilty a nd sentence as approved by the convening authority are

correct in law and fact. Ac cordingly, those findings of guilty and sentence are

AFFIRMED. We also reiterat e our order that appellant re ceive sixteen days of pay and allowances at the grade of E-4 to compensate for si xteen days of illegal posttrial confinement.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: