## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CELTNIEKS, HAGLER, and SCHASBERGER Appellate Military Judges

UNITED STATES, Appellee

v. Specialist LUIS J. ALVIN United States Army, Appellant

ARMY 20150353

Headquarters, United States Army Maneuver Center of Excellence Christopher T. Fredrikson, Military Judge (arraignment) Frederic P. Gallun, Mi litary Judge (trial) Colonel Charles C. Poché, St aff Judge Advocate (pretrial) Colonel Wendy P. Dakni s, Staff Judge Advo cate (post-trial)

For Appellant: Lieutenant Colonel Christopher Daniel Carrier, JA; Major Christopher Coleman, JA; Captain Patrick Scudieri, JA (on brief).

For Appellee: Li eutenant Colonel Eric K. Stafford, JA; Major Virginia H. Tinsley, JA; Captain Sandra L. Ahinga, JA (on brief).

21 November 2017

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

SCHASBERGER, Judge:

An officer and enlisted panel sitting as a special court-martial convicted appellant, contrary to his pl ea, of one specification of wrongful use of cocaine, in violation of Article 1 12a, Uniform Code of M ilitary Justice, 10 U. S.C. § 912a (2012) [hereinafter UCMJ]. The panel sentenced appellant to a bad-co nduct discha rge and a reduction to the grade of E- 1. The convening authority initially disapproved the findings of guilty and th e sentence. The convening au thority later withdrew the earlier action and approved only the bad-conduct di scharge. This ca se is before our court for review unde r Article 66, UCMJ.

On appeal, appellant raises several errors that warrant discussion, but none of which warrant relief. Specifically, appell ant alleges this cour t lacks jurisdictionALVIN—ARMY 20150353

2 because the convening auth ority improperly withdrew the initial action, or alternatively that 509 days of post-trial processing violated appellant’s due process rights. 1

In essence, we must answer the foll owing question: what happens when a convening authority, illegally and without authority, dismisses a specification that under the post-2014 amendmen ts to Article 60, UCMJ, he has no authority to dismiss? We answer the qu estion as follows: the rules for courts-martial and preamendment case law must yield to the Cong ress’s amendment of Article 60, UCMJ. Therefore, when a convening authority takes action dismissing a finding of guilty that is outside the mandate of his or her authority, the action is void ab initio

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BACKGROUND

On 6 January 2015, appellant participated in a unit urinalysis in which his sample tested positive for coca ine. At trial, the government establ ished the chain of custody and brough t in an expert from the forensic laboratory to explain the test results. The defense counsel raised object ions to the admissib ility of the laboratory

1 In an unsworn subm ission pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), appellan t personally asserts, inter alia , his defense counsel were ineffective because they did not submit a “good soldier book” during the presentencing phase ofhis trial, and his “counsel never requested the urine sample be DNA matched to appellant. ” Upon review of the enti re record oftrial, we disagree with appell ant’s assertions.

We see no need to order an affidavit from counsel an d conclude an evidentiary hearing is not warranted under United States v. DuBay , 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). It is clear from the record appe llant’s counsel ma de considered, tactical decisions concer ning the evidence and testimony offered during presentencing. After the mi litary judge admitted appellant ’s Enlisted Record Brief, which listed appellants medals and depl oyments, the defense called two senior noncommissioned officers to testify regarding appella nt’s good duty performance and rehabilitative pote ntial. Both witnesses had de ployed with appellant and gave strong testimony rega rding his actions while under fire.

We are convinced ap pellant has not met his burden of establishing ineffective assistance of coun sel as required by United States v. Green , 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland v. Washington , 466 U.S. 668, 687 (1984)). “We do not measure deficiency base d on the success of a trial defense counsel’s strategy, but instead examine whether counsel made an objectivel y reasonable choice in strategy from the available a lternatives. Similarly, we must remain mindful that counsel have wide latitude . . . in making tactical decisions.” United States v. Akbar , 74 M.J. 364, 379 (C.A.A .F. 2015) (internal citati ons and quot ation marks omitted).ALVIN—ARMY 20150353

3 report 2 and highlighted the numerous procedural errors in the urinalysis process. Appellant testified and deni ed using cocaine. The pa nel convicted appellant of wrongful use of cocaine.

On 1 December 2015, the c onvening authority dismissed the finding and the sentence. Appellant was recal led from excess leave and he resumed his duties as a soldier. In June of 2016, appellan t was served a new st aff judge advocate’s recommendation alerting appellant that the initial action was impr oper and there would be a new action. Appe llant resubmitted clemency matters under Rule for Courts-Martial [hereinafter R.C.M.] 1105 . On 29 September 2016, 519 days after trial, the convening authority took initial action. This action withdrew the prior action. The conv ening authority disapp roved the reduction to E-1 and ap proved the bad-conduct discharge.

LAW AND DISCUSSION

In this case we must first determine ifwe have jurisdicti on to address this appeal. This court is a court of limi ted jurisdiction, esta blished by The Judge Advocate General. UCMJ art. 66(a). The mandate to esta blish this court was made pursuant to the author ity of Congress to pass laws regulating the Armed Forces. See U.S. Const. art. I, § 8, cl . 14. The statute requires the Judge Advocate General to refer the record of each ca se of trial by court-martial “in which the sentence, as approved, extends to . . . [a ] bad-conduct discha rge . . . .” UCMJ art. 66(b)(1). Furthermore, this court is limited to ac t “only with respect to the findings and sentence as approved by the conven ing authority.” UC MJ art. 66(c).

2 In his third assigned error, appellan t alleges the govern ment violated his constitutional rights when it admitted test imonial hearsay stating he used cocaine. At trial, the prosecution introduced a laboratory report th at “reconfirmed the presence of the cocaine metabolite, benzoy lecgonine” in appella nt’s urine sample. The military judge directed a redaction of the report to remove the testimonial hearsay before admitting it into evidence. See Melendez-Diaz v. Massachusetts , 557 U.S. 305, 309-29 (2009) (holdi ng that statements in a fo rensic laboratory report were testimonial under the Sixth Amendment and, therefore, could not be introduced by the prosecution without a liv e witness competent to test ify to the truth of the statements made in the report). The reda ction attempt, however, was only partially successful. Along with the computer-generated data in the report were several statements that confirmed the urine sa mple was from appellant and contained cocaine metabolites. While we agree thes e statements are testimonial and should have been redacted from the report, we provide no relief be cause the error was harmless beyond a reasonable doubt since the testimonia l hearsay was unimportant and cumulative of properly admitted evidence. See United States v. Sweeney , 70 M.J. 296, 306 (C.A.A.F . 2011) (listing none xclusive factors when reviewing whether a Confrontation Clau se error was harmless bey ond a reasonable doubt).ALVIN—ARMY 20150353

4 A. Rule for Courts-Martial 1107

The Rules for Courts-Marti al set out the procedures for how the convening authority may take action u pon the findings and sentence . Prior to Ju ne 2014, the convening authority had sole discretion to act on findings to include the power to set aside any finding of guilty and dismiss the specificati on or charge. R.C.M. 1107(c). 3 This changed when Congress enacted the National Defense Au thorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 1 27 Stat. 672 (2013) [hereinafter NDAA]. Among the many changes to the UCMJ was a substantive chan ge to the authority of a convening authority.

In the NDAA, Congress cu rtailed the previously br oad clemency powers of a convening authority. The NDAA expressl y prohibited a convening authority from setting aside: 1) a guilty finding to an offense wi th a maximum authorized confinement of more than two years, and 2) a sentence of a bad-conduct discharge. 4 NDAA § 1702(b). Neithe r the NDAA nor R.C.M. 11 07 notably changed the procedure for a convening authorit y to modify an initial action. 5 Under R.C.M. 1107(f), the conven ing authority may modify an actio n any time before it has been published or before the accused has been officially notifi ed. The convening authority may also recall and modify any action at any time prior to forwarding the record for review, as long as the modification does not resu lt in action less favorable to the accused than the earlier action.

Established precedent is th at “a convening authority ‘loses jurisdiction of the case once he has published his action or ha s officially notified the accused’ of that action.” United States v. Carter , 76 M.J. 293, 295 (C.A.A.F. 2017) (quoting United States v. Montesinos , 28 M.J. 38, 42 (C.M .A. 1989)). There is also established precedent that when a convening authorit y’s action is clear and unambiguous he cannot go back and change it to the detriment of the accused. United States v. Wilson , 65 M.J. 140, 141 (C.A.A.F . 2007) (“[W]hen the pl ain language of the convening authority’s action is facially complete and unam biguous, its meaning must be given effect.”).

3 The discussion following this rule stat es “[t]he convening authority may for any reason or no reason disapprove a finding of guilty . . . .” R.C.M. 1107(c) discussion.

4 The statue does allow for some exce ptions for cases wi th a trial counsel recommendation based on substa ntial assistance by the accused, or a pretrial agreement. R.C.M. 1107(d)(1)(C).

5 The only change is to pr ohibit the convening authorit y from modifying the action to something that is now prohibited unde r the new R.C.M. 1107 (i.e., dismissing findings or disappro ving a discharge).ALVIN—ARMY 20150353

5 To follow those precedents in a situat ion where the convening authority acts outside his authority would ru n squarely against Congressio nal intent as codified in the NDAA’s changes to Article 60, UCMJ. Here, the statute expr essly prohi bits the convening authority fr om dismissing fi ndings of guilty if th e offense is one that carries a maximum punishment of greater than two years. The st atute also expressly prohibits a convening authority from disapproving a sentence of a discharge.

Appellant was found guilty of wrongful use of co caine in violation of Article 112a, UCMJ. The maximum punish ment for wrongful use of cocaine includes five years of confinement. Ap pellant committed this offense after the effective date of the change to R.C.M. 1107. Theref ore, the original action of the convening authority disapproving the finding of guilty was outside of his authority. Furthermore, appellant’s sentence includ ed a bad-conduct di scharge, which the convening authority also had no authority to disapprove. The convening authority’s action was specifically prohib ited by the statute. Accordin gly, the original action by the convening authority was void ab initio

. After serving appellant, publishing th e action, and returning appellant to active duty, 6 the convening authorit y recognized the error, withdrew the initial action, and created a corrected action. Under both the pl ain language of R.C.M. 1107 and prior case law, the convening authorit y would no longer have the authority to take any addition al action with regard to this case, let alone an action that was to the detriment of appellant. Carter , 76 M.J. at 295; Wilson , 65 M.J. at 141. If that were the result, we would in effect be allowing a convening authority to take a prohibited ac tion and thwart the clear intent of the statute. We must give effect to the statute over th e rule. Therefore, we find in the limited circumstance where the first convening au thority action is void ab initio , a convening authority may still take act ion under R.C.M. 1107 ev en though the initial purported action had been served and published. 7

6 After his trial, appellant was placed on excess leave, a duty status where he received no pay bu t was entitled to limited benefits.

7 In this case, the original ac tion would on its fa ce deprive this cour t of jurisdiction. Under other circumstan ces, the appellate process work s to set aside illegal actions by the convening author ity. As we have the power to issue extraord inary writs to preserve our jurisdicti on, this court could issue a writ of manda mus setting aside the first action and ordering a new action. See generally Howell v. United States , 75 M.J. 386, 390 (C .A.A.F. 2016); Montesinos , 28 M.J. at 44; Dettinger v. United States , 7 M.J. 216 (C.M.A. 1979). However, as the conven ing authority has already sought to correct this error and issued an action that compli es with Article 60, UCMJ, the issuance of a writ is unnecessary.ALVIN—ARMY 20150353

6 B. Post-Trial Delay

Appellant alleges his due process rights were violated by the 509 days of post-trial delay.

The court-martial sentenced appella nt on 20 May 2015. The convening authority took his first action on day 195, and his corrected action on day 498. This court received the record of trial on day 519. The delay in this case la rgely resulted from the initial convening authority error.

Though the 509 days attributable to the government are presumptively unreasonable, they do not rise to the leve l of a due process vi olation. We still review the appropriateness of appellant’s sentence in light of the unjustified dilatory post-trial proces sing. UCMJ art. 66(c); United States v. Tardif , 57 M.J. 219, 224 (C.A.A.F. 2 002) (“[Pursuant to Article 66 (c), UCMJ, service courts are] required to determin e what findings and sentence ‘should be approved,’ based on all the facts and circumstances reflected in the record, including the unexplained and un reasonable post-trial delay.”). See generally United States v. Toohey , 63 M.J. 353, 362-6 3 (C.A.A.F. 2006); United States v. Ney , 68 M.J. 613, 617 (Army Ct. Crim. App. 2010); United States v. Collazo , 53 M.J. 721, 727 (Army Ct. Crim. App. 2000).

While ordinarily such extr eme post-trial delay might warrant relief, in this case where appellant’s approv ed punishment was solely a bad-conduct di scharge, we find no prejudice to appe llant that would warrant th e extraordinary measure of disapproving appellant’s punitiv e discharge. In fact, for a significant pr oportion of the time, appellant returned to active duty and received pay and benefits. Accordingly, given the totality of the ci rcumstances, we find the sentence as approved by the convening au thority to be appropriate. Consequently, despite the government’s failure to meet its obligation to provide timely post-trial processing of the record, relief is not warranted here.

CONCLUSION

On consideration of the entire record, the findings of guilty and the sentence are AFFIRMED.

Judge CELTNIEKS and Judge HAGLER concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court MALCOLM H. SQUIRES, JR. Clerk of Court FOR THE COURT: