              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                               No. ACM 39533
                          ________________________

                             UNITED STATES
                                 Appellee
                                      v.
                       Jeffrey A. RAMSDELL
           Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                            Decided 2 April 2019
                          ________________________

Military Judge: Jefferson B. Brown.
Approved sentence: Dishonorable discharge, confinement for 9 months,
forfeiture of all pay and allowances, reduction to E-1, and a reprimand.
Sentence adjudged 22 May 2018 by GCM convened at Sheppard Air
Force Base, Texas.
For Appellant: Captain M. Dedra Campbell, USAF.
For Appellee: Lieutenant Colonel Nicole P. Wishart, USAF; Mary Ellen
Payne, Esquire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
PER CURIAM:
    Appellant, pursuant to a pretrial agreement, pleaded guilty to four specifi-
cations of attempted sexual abuse of a child, one specification of attempted
viewing of child pornography, one specification of sexual abuse of a child, and
one specification of receiving child pornography, in violation of Articles 80,
120b, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880,
                   United States v. Ramsdell, No. ACM 39533


920b, 934. Appellant pleaded not guilty to two specifications of attempted sex-
ual abuse of a child in violation of Article 80, UCMJ. The military judge sen-
tenced Appellant to a dishonorable discharge, confinement for one year, forfei-
ture of all pay and allowances, reduction to the grade of E-1, and a reprimand.
In accordance with the pretrial agreement, the convening authority approved
only nine months of confinement, but he otherwise approved the sentence as
adjudged.
    The sole issue in Appellant’s case involves the convening authority’s failure
to fulfill the terms of the pretrial agreement. * We agree with both parties that
the appropriate remedy is to dismiss Specifications 1 and 2 of Additional
Charge I with prejudice. Finding no other prejudicial error, we affirm the ap-
proved findings and the sentence.

                                  I. BACKGROUND
    Prior to his court-martial, Appellant entered into a pretrial agreement with
the convening authority in which he agreed, inter alia, to plead guilty to all but
two of the specifications against him in exchange for the convening authority’s
agreement to “withdraw and dismiss with prejudice Specifications 1 and 2 of
Additional Charge I following acceptance of a provident guilty plea.”
    Following the military judge’s acceptance of Appellant’s guilty plea, trial
counsel moved to dismiss both specifications with prejudice but asked the mil-
itary judge to defer his ruling until after the announcement of sentence.
    Following the announcement of sentence, trial counsel requested that the
specifications be renumbered to reflect only the charges and specifications re-
sulting in a finding “minus the withdrawn charges and the charges that were
not referred.” The military judge responded as follows:
        And as to the withdrawing of Additional Charge, that is one
        thing that at this point I know that the Government had re-
        quested it upon the announcement of my sentence that I grant
        the request to withdraw Specification 1 and Specification 2 with
        -- to withdraw it with prejudice is what the Government’s re-
        quested. As to that, my concern is that renumbering would make
        it more difficult to actually clarify what was withdrawn and
        what was the agreement, the pretrial agreement. So as to re-
        numbering Additional Charge I, the Court’s intention is not to
        do that. But trial counsel are permitted to modify the charge


*Appellant submitted his case with one assignment of error: whether the convening
authority’s failure to dismiss Specifications 1 and 2 of Additional Charge I constituted
noncompliance of a material term of the pretrial agreement.


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                 United States v. Ramsdell, No. ACM 39533


       sheet so that the four specifications under Charge I are renum-
       bered 1,2,3,4.
    Despite having not actually ruled on the Government’s motion to dismiss
Specifications 1 and 2 of Additional Charge I, the military judge then ad-
journed the court-martial. The Staff Judge Advocate later incorrectly advised
the convening authority that the specifications had been “[w]ithdrawn and dis-
missed after arraignment.” The convening authority complied with the agreed
upon maximum confinement period but took no further action with respect to
Specifications 1 and 2 of Additional Charge I.

                               II. DISCUSSION
    “When an appellant contends that the government has not complied with a
term of the agreement, the issue of noncompliance is a mixed question of fact
and law.” United States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009) (citing United
States v. Lundy, 63 M.J. 299, 301 (C.A.A.F. 2006)). Appellant has the burden
to establish both materiality and non-compliance. Lundy, 63 M.J. at 302. We
find that Appellant has met his burden.
    The terms of the pretrial agreement clearly require the convening authority
to “withdraw and dismiss with prejudice Specifications 1 and 2 of Additional
Charge I following acceptance of a provident guilty plea.” Appellant fulfilled
his part of the agreement through a provident guilty plea. Though the Govern-
ment made appropriate attempts to fulfill the convening authority’s promise,
their attempts were ultimately unsuccessful when the military judge failed to
grant the Government’s motion and the convening authority failed to dismiss
the specifications with prejudice when taking action in the case.
    There are several available remedies for non-compliance including the sole
remedy Appellant requests on appeal: specific performance. Where, as here,
the parties have a mutual understanding on the material terms of the pretrial
agreement and agree on the appropriate remedy, we are persuaded that spe-
cific performance by dismissing Specifications 1 and 2 of Additional Charge I
is the appropriate remedy. See id. at 305 (Effron, J., concurring).

                              III. CONCLUSION
   Specifications 1 and 2 of Additional Charge I are DISMISSED WITH
PREJUDICE. The approved findings and sentence are correct in law and fact,
and no error materially prejudicial to Appellant’s substantial rights occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c) (2016).




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            United States v. Ramsdell, No. ACM 39533


Accordingly, the approved findings and sentence are AFFIRMED.


               FOR THE COURT



               CAROL K. JOYCE
               Clerk of the Court




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