         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201700238
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                          ALEX J. WERNER
                Yeoman Second Class (E-5), U.S. Navy
                             Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

  Military Judge: Commander Jonathan T. Stephens, JAGC, USN.
  Convening Authority: Commander, Navy Region Southwest, San
                         Diego, California.
 Staff Judge Advocate’s Recommendation: Captain Donald C. King,
                            JAGC, USN.
         For Appellant: Major Maryann N. McGuire, USMC.
                For Appellee: Brian K. Keller, Esq.
                      _________________________

                         Decided xx March 2018
                          ______________________

 Before H UTCHISON , S AYEGH , and H INES , Appellate Military Judges
                        _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                        _________________________

   PER CURIAM:
   A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of one specification of rape of a child and
four specifications of sexual abuse of a child in violation of Article 120b,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920b (2012). The
military judge sentenced the appellant to 26 years’ confinement, reduction to
paygrade E-1, forfeiture of all pay and allowances, and a dishonorable
                         United States v. Werner, No. 201700238


discharge. The convening authority (CA) approved the sentence as adjudged.
Pursuant to a pretrial agreement, the CA suspended confinement in excess of
17 years, deferred and waived the automatic forfeitures for six months,
deferred and suspended the adjudged forfeitures for six months, and
suspended all automatic and adjudged reductions to paygrade E-1 for six
months.
   Although not raised as error, the CA’s language suspending the
appellant’s adjudged reduction and forfeiture of pay purports to reduce the
appellant to E-1 and reinstate the adjudged forfeitures following the
suspension period:
         [E]xecution of reduction to paygrade E-1 is suspended for a
         period of six (6) months from this action, at which time, unless
         sooner vacated, the part of the adjudged reduction that was
         suspended will be approved.
         ...
         [E]xecution of adjudged forfeiture of pay is suspended for a
         period of six (6) months from the date of this action . . . . At the
         end of the suspension period, unless sooner vacated, all
         suspended adjudged forfeitures will be approved as adjudged.1
    The CA attempted to postpone or defer execution of the reduction in grade
and adjudged forfeitures for six months—presumably to coincide with the
automatic forfeiture waiver period so that the appellant’s dependents would
continue to receive pay at the E-5 rate. The CA, unable to defer the reduction
or adjudged forfeitures past the date of his CA’s action, apparently attempted
to do so using a suspension.2 However, “[e]xpiration of the period provided in
the action suspending a sentence or part of a sentence shall remit the
suspended portion unless the suspension is sooner vacated.” R.C.M. 1108(e)
(emphasis added). “Remission cancels the unexecuted part of a sentence to
which it applies.” R.C.M. 1108(a). Therefore, absent a vacation proceeding in
accordance with R.C.M. 1109, any unexecuted part of the appellant’s
sentence will be remitted at the conclusion of the period of suspension.3



   1   CA’s Action of 17 Jul 2017 at 3.
   2 See RULE FOR COURTS-MARTIAL (R.C.M.) 1101(c)(1), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2016 ed.) (“Deferment of a sentence to . . . forfeitures, or
reduction in grade is a postponement of the running of the sentence.”).
   3  See R.C.M. 1101(c)(6) (“Deferment of a sentence to . . . forfeitures, or reduction
in grade ends when: (A) The convening authority takes action under R.C.M. 1107 . . .;
[or] (B) [t]he . . . forfeitures, or reduction in grade [is] suspended[.]”).


                                           2
                    United States v. Werner, No. 201700238


    Thus, the CA’s attempt to execute a cancelled part of the sentence was
ultra vires and therefore a nullity. See United States v. Villalobos, No.
201700097, 2018 CCA LEXIS 26, at *7, unpublished op. (N-M. Ct. Crim. App.
26 Jan 2018) (per curiam) (“Executing a cancelled part of a sentence is ultra
vires and thus a nullity.”) (citing United States v. Tarniewicz, 70 M.J. 543,
544 (N-M. Ct. Crim. App. 2011) (CA’s action directing execution of punitive
discharge in violation of Article 71, UCMJ, was ultra vires and thus a
nullity)). See also United States v. Lowry, No. 201700199, 2018 CCA LEXIS
84, at *4, unpublished op. (N-M. Ct. Crim. App. 26 Feb 2018) (per curiam).
However, “[r]ather than unnecessarily ordering a new CA’s action in this
case, we take the existing CA’s action and disregard any portion that is not
permitted by law.” United States v. Kruse, 75 M.J. 971, 975 (N-M. Ct. Crim.
App. 2016).
    The findings and sentence approved by the CA are affirmed. The
supplemental court-martial order will reflect that the appellant’s suspended
adjudged reduction to the paygrade of E-1 and the appellant’s adjudged
forfeiture of pay, unless sooner vacated, will be remitted following the
conclusion of the suspension period.
                                      For the Court




                                      R.H. TROIDL
                                      Clerk of Court




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