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

UNITED STATES                              )      ACM S32615
          Appellee                         )
                                           )
                v.                         )
                                           )      ORDER
Erik A. RAMOS                              )
Senior Airman (E-4)                        )
U.S. Air Force                             )
             Appellant                     )      Panel 1

    Appellant was tried at Davis-Monthan Air Force Base, Arizona on 22 July
2019, and convicted by a military judge sitting as a special court-martial, in
accordance with his pleas pursuant to a pretrial agreement, of two specifica-
tions for failure to obey a lawful general regulation and one specification of
wrongful use of lysergic acid diethylamide (LSD) in violation of Articles 92
and 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892 and
912a. He was sentenced to a bad-conduct discharge, confinement for 60 days,
reduction to the grade of E-1 and a reprimand.
    The same day as trial, Appellant signed an AF Form 304, Request for Ap-
pellate Defense Counsel, and checked the box “I do not request Appellate De-
fense Counsel to represent me.” The convening authority took no action on
the findings or sentence of the case and signed the decision memorandum on
2 August 2019. The entry of judgment was signed by the military judge on 12
August 2019. The case was docketed with this court on 27 August 2019, with-
out an appellate defense counsel assigned to Appellant’s case. On 29 August
2019, this court sent a certified letter to Appellant advising him that his case
was docketed with this court and informing him that he had 60 days to file a
brief assigning any error pursuant to Rule 18(d) of this court’s Rules of Prac-
tice and Procedure. Appellant submitted no response.
   Reviewing the case pursuant to Article 66, UCMJ, 10 U.S.C. § 866, the
court noted missing from the original record of trial was a second AF Form
304 completed after the convening authority acted on the case pursuant to
United States v. Xu, 70 M.J. 140 (C.A.A.F. 2011) (mem.); United States v.
Smith, 34 M.J. 247, 249 (C.M.A. 1992); and consistent with and the guidance
in Air Force Instruction (AFI) 51-201, Administration of Military Justice, ¶
14.5.2 (18 Jan. 2019).
                  United States v. Ramos, No. ACM S32615


   Article 70(c)(1), UCMJ, 10 U.S.C. § 870(c)(1), states an appellate defense
counsel shall represent an accused “when requested by the accused.” See
Manual for Courts-Martial, United States (2019 ed.) (2019 MCM).
    In Smith, the U.S. Court of Military Appeals (now U.S. Court of Appeals
for the Armed Forces (CAAF)) set aside the affirmance of the conviction, find-
ing that the purported waiver of appellate representation was tantamount to
a waiver of appellate review because the appellant had not had sufficient
time to reflect when he signed the waiver. The court held “these two actions
[waiver of appellate representation and appellate review] are too inextricably
intertwined to be treated differently” and therefore “the purported waiver of
representation by appellate counsel was premature and without effect.”
Smith, 34 M.J. at 249. In Xu, the CAAF concluded that the appellant’s waiver
of appellate counsel prior to the convening authority’s action was premature.
Xu, 70 M.J. at 140.
   On 4 December 2019 this court ordered the United States to show cause
why this case should not be returned to The Judge Advocate General to de-
termine whether Appellant waived his right to appellate defense counsel. On
6 January 2020 the United States responded confirming that Appellant had
not signed a second AF Form 304 and recommended the case be returned to
The Judge Advocate General.
   Accordingly it is by the court on this 13th day of January, 2020,
ORDERED:
    The record of trial is REMANDED to The Judge Advocate General for a
determination as to whether Appellant desires appellate representation. Ar-
ticle 66(g), UCMJ, 10 U.S.C. § 866(g) (2019 MCM). Thereafter, the record of
trial will be returned to this court for completion of appellate review under
Article 66, UCMJ, of any findings and sentence from the judgement entered
into the record. No later than 13 March 2020, counsel for the Government
will inform the court in writing of the status of compliance with this order
unless the record of trial has been returned to the court prior to that date.


                    FOR THE COURT



                    CAROL K. JOYCE
                    Clerk of the Court




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