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

                                No. ACM 39432
                           ________________________

                              UNITED STATES
                                  Appellee
                                       v.
                          Frank A. MURRAY
                  Airman (E-2), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 28 January 2019
                           ________________________

Military Judge: Jennifer E. Powell.
Approved sentence: Bad-conduct discharge, confinement for 12 months,
forfeiture of all pay and allowances, reduction to E-1, and a reprimand.
Sentence adjudged 15 December 2017 by GCM convened at Vandenberg
Air Force Base, California.
For Appellant: Major Mark J. Schwartz.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Mary Ellen
Payne, Esquire.
Before HUYGEN, MINK, and POSCH, 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    This is an unpublished opinion and, as such, does not serve as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:
    In accordance with Appellant’s plea pursuant to a pretrial agreement
(PTA), a general court-martial composed of a military judge found Appellant
guilty of nine specifications for violations of Article 112a, Uniform Code of Mil-
itary Justice (UCMJ), 10 U.S.C. § 912a. The military judge sentenced Appel-
lant to a bad-conduct discharge, confinement for 13 months, forfeiture of all
pay and allowances, reduction to the grade of E-1, and a reprimand. Consistent
                    United States v. Murray, No. ACM 39432


with the terms of the PTA, the convening authority approved only 12 months
of confinement and approved the remainder of the sentence.
    This case was submitted for our review on its merits without assignment
of error. During our review we noted the military judge failed to announce a
finding for a specification of wrongful use of marijuana after Appellant entered
a plea of not guilty to the specification in accordance with the PTA. Instead of
announcing a finding, the military judge treated the specification as with-
drawn and dismissed, which was not in accordance with the PTA. We deter-
mined that, under the circumstances of this case, the military judge erred in
failing to announce a finding of not guilty for the specification, but Appellant
was not prejudiced by the error. Thus, we find no error materially prejudicial
to a substantial right of Appellant, and affirm the findings and sentence.

                                   I. BACKGROUND
    Appellant was charged with ten specifications for violations of Article 112a,
UCMJ. Specification 4 alleged that Appellant wrongfully used marijuana. The
PTA between Appellant and the convening authority addressed Specification
4: Appellant agreed to plead not guilty to Specification 4 and the convening
authority agreed to direct the Government “not to offer additional evidence” to
prove Specification 4.
    One week after the parties signed the PTA, trial counsel lined through
Specification 4 on the charge sheet in the manner used to indicate withdrawal,
with or without dismissal, but did not indicate if the specification was with-
drawn and dismissed.1 Trial counsel did so even though the convening author-
ity did not agree to withdraw and dismiss Specification 4 as part of the PTA or
pursuant to any document in the record. Two days before trial, trial counsel
made a second change to the charge sheet and renumbered Specifications 5
through 10 as 4 through 9, respectively.




1Trial counsel drew a single diagonal line through Specification 4 and wrote his initials
and the date. To indicate the withdrawal of a specification,
        [T]rial counsel should line through the affected charge or specification,
        specify the disposition and the date, and initial the action taken. (e.g.,
        “Withdrawn on 15 Sep 11, [initials]”). If the convening authority directs
        both withdrawal and dismissal of a particular charge and/or specifica-
        tion, both actions should be reflected accordingly (e.g., “Withdrawn and
        Dismissed on 15 Sep 11, [initials]”).
Air Force Instruction 51-201, Administration of Military Justice, ¶ 7.3.2 (8 Dec.
2017) (alterations in original) (emphasis added).


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                   United States v. Murray, No. ACM 39432


   When the court-martial convened, the military judge observed that “the
government already lined out the portions on the charge sheet with regards to
Specification 4” and asked trial counsel, “[I]s the government's intention for
post-trial purposes that [Specification 4 is] withdrawn and dismissed with prej-
udice . . . ?” Trial counsel answered in the affirmative.
    When Appellant was arraigned, he entered pleas in accordance with the
PTA, including a plea of not guilty for Specification 4. After the guilty plea
inquiry, the military judge did review the PTA provisions for Specification 4
with Appellant, but did not ask either party how the provisions could be rec-
onciled with trial counsel’s earlier indication of the Government’s intent to
withdraw and dismiss Specification 4. After accepting the PTA and Appellant’s
plea of guilty to the other nine specifications of the charge, the military judge
announced guilty findings for Specifications 1–3 and 5–10, but did not an-
nounce a finding for Specification 4. Instead, the military judge queried, “Coun-
sel, just for clarification for you and for the record, by virtue of the PTA and
how the convening authority chose to dispose of . . . Specification 4, . . . I did
not make [a] finding[ ] . . . because [the specification was] . . . already previ-
ously withdrawn and dismissed in accordance with the PTA. Is that counsel's
understanding?” (Emphasis added.) Both counsel replied in the affirmative.
   The staff judge advocate’s recommendation (SJAR) discussed the PTA, but
not its provisions for Specification 4. The report of result of trial attached to
the SJAR indicated that Appellant pleaded not guilty to Specification 4 and
that it was withdrawn and dismissed. Consistent with the terms of the PTA,
the convening authority approved only 12 months of confinement, but other-
wise took action that approved the sentence as adjudged.

                                II. DISCUSSION
    This court long ago accepted as a substantial right of an accused “the right
to announcement of all findings in open court.” United States v. Timmerman,
28 M.J. 531, 536 (A.F.C.M.R. 1989). “However, though an error which affects
a substantial right of an accused is presumptively prejudicial, ‘the presumption
may yield to compelling evidence in the record that no harm actually resulted.’”
Id. (citing United States v. Boland, 42 C.M.R. 275, 278 (C.M.A. 1970)). “In this
regard we look to the record as a whole to determine the intent of the trial court
with respect to announcement of the findings.” Id. (citations omitted).
    We are convinced no harm resulted to Appellant from the military judge’s
failure to enter a finding of not guilty to Specification 4 because the military
judge instead treated Specification 4 as withdrawn and dismissed after Appel-
lant pleaded not guilty to it. Furthermore, the military judge’s error did not
undermine either Appellant’s guilty plea or the PTA, the terms of which both
parties abided by: Appellant entered pleas in accordance with the PTA, trial

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                  United States v. Murray, No. ACM 39432


counsel offered no evidence to prove Specification 4, and the convening author-
ity did not approve more than 12 months of confinement. In addition, Appellant
has never—at trial, during post-trial processing, or on appeal—pointed out the
military judge’s error or claimed prejudice. Thus, we conclude Appellant has
suffered no harm as a result of the military judge’s failure to announce a find-
ing of not guilty for Specification 4.
     Notwithstanding that conclusion, we are still compelled to address the ab-
sence of any indication that the convening authority intended to withdraw and
dismiss Specification 4 before the military judge decided to treat it as with-
drawn and dismissed. Such absence is all the more glaring because the PTA
specifically discussed Specification 4, allowed Appellant to plead not guilty to
it, and prohibited the Government from offering evidence to prove it. The most
that can be presumed from the PTA is that the convening authority intended
for Appellant to be found not guilty of Specification 4. Nonetheless, we find
that, with the convening authority’s action, he agreed to the withdrawal and
dismissal of Specification 4 when he implicitly approved the findings and ex-
plicitly approved a sentence that accorded with the PTA. See United States v.
Diaz, 40 M.J. 335, 341 (C.M.A. 1994) (finding that a convening authority’s “fail-
ure to make any mention of findings in his action silently implies a decision to
approve them.”). We deem the action legally sufficient. Cf. United States v.
Gaters, 2018 CCA LEXIS 364, at *6 (A.F. Ct. Crim. App. 20 Jul. 2018) (unpub.
op.) (finding that the court’s review under Article 66, UCMJ, 10 U.S.C. § 866,
is limited to the approved findings and sentence and they must be accurate,
“especially where, as here, the inaccuracy operates to the detriment of the ap-
pellant.”).
    Though the military judge’s error did not result in harm to Appellant in
this case, it could have been avoided by the parties prior to trial and should
have been identified and corrected after trial.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to Appellant’s substantial rights occurred. Articles
59(a) and 66(c), Uniform Code of Military Justice, 10 U.S.C. §§ 859(a), 866(c).
Accordingly, the approved findings and sentence are AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court


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