United States v. Perone ( 2014 )


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  •           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
    UNITED STATES
    v.
    Senior Airman RACHEL S. PERONE
    United States Air Force
    ACM S32186
    15 October 2014
    Sentence adjudged 7 October 2013 by SPCM convened at Mountain Home
    Air Force Base, Idaho. Military Judge: Shaun S. Speranza (sitting alone).
    Approved Sentence: Bad-conduct discharge, confinement for 30 days, and
    reduction to E-1.
    Appellate Counsel for the Appellant: Captain Lauren A. Shure.
    Appellate Counsel for the United States: Captain Matthew J. Neil and
    Gerald R. Bruce, Esquire.
    Before
    ALLRED, HECKER, and TELLER
    Appellate Military Judges
    OPINION OF THE COURT
    This opinion is subject to editorial correction before final release.
    PER CURIAM:
    A special court-martial composed of a military judge convicted the appellant,
    pursuant to her pleas, of wrongfully using methamphetamine and oxycodone, in violation
    of Article 112a, UCMJ, 10 U.S.C. § 912a. The adjudged and approved sentence
    consisted of a bad-conduct discharge, confinement for 30 days, and reduction to E-1.
    On appeal, the appellant argues she was denied the meaningful opportunity for
    clemency when the personal data sheet (PDS) presented to the convening authority failed
    to mention her combat service. Finding no error that materially prejudices a substantial
    right of the appellant, we affirm the approved findings and sentence.1
    Background
    The appellant joined the Air Force in 2006. On 7 June 2013, she provided a urine
    sample through the base random inspection program, which ultimately tested positive for
    methamphetamine and oxycodone. The following day, she went to the base clinic and
    admitted to using methamphetamine and abusing prescription drugs. She then entered a
    30-day inpatient treatment facility.
    At trial, the appellant pled guilty to using methamphetamine and oxycodone prior
    to her urinalysis. In sentencing, the Government submitted evidence of her extensive
    disciplinary record, which included nonjudicial punishment for a positive urinalysis in
    February 2013.
    Incorrect Personal Data Sheet
    From January to May 2007, the appellant was deployed to Balad Air Base, Iraq.
    The Personal Data Sheet (PDS), admitted without objection during sentencing at trial,
    made no mention of this deployment.2 The same PDS was attached to the staff judge
    advocate recommendation (SJAR) and provided to the convening authority, again
    without objection from the defense. The appellant now claims on appeal that the
    omission of the deployment from the PDS denied her a meaningful opportunity for
    clemency and warrants a new action from the convening authority.
    Proper completion of post-trial processing is a question of law which this court
    reviews de novo. United States v. Sheffield, 
    60 M.J. 591
    , 593 (A.F. Ct. Crim. App. 2004)
    (citing United States v. Kho, 
    54 M.J. 63
    , 65 (C.A.A.F. 2000)). Failure to comment in a
    timely manner on matters in the SJAR, or on matters attached to the SJAR, forfeits3 any
    1
    We address one matter not raised by the appellant. Prior to accepting her guilty plea, the military judge advised the
    appellant “the maximum punishment authorized in this case based solely on your guilty plea is a bad-conduct
    discharge, confinement for 12 months, forfeiture of two-thirds pay per month for 12 months. A fine may also be
    adjudged.” In so stating, the military judge failed to note that reduction in grade was also authorized. Viewing the
    record as a whole, however, we are convinced the appellant, in pleading guilty, was fully aware of the proper
    maximum punishment, to include a potential reduction in grade. The appellant was, for example, privy to a
    conversation immediately preceding the misstatement by the military judge in which all parties concurred in a
    correct understanding of the maximum punishment, including reduction to the lowest enlisted grade. The appellant
    evinced no surprise nor offered any objection when trial counsel argued strongly for a reduction in grade. No
    surprise was evident nor was any objection raised when the military judge announced a sentence that included a
    reduction to E-1. We see no real possibility that the appellant was misled or confused by the misstatement of the
    military judge. Nor do we find therein any error materially prejudicial to any right of the appellant.
    2
    The personal data sheet (PDS) did reference the appellant’s deployment to Oman from July to November 2013 as
    “overseas service.”
    3
    Rule for Courts-Martial 1106(f)(6) and United States v. Scalo, 
    60 M.J. 435
    , 436 (C.A.A.F. 2005) both indicate that
    waiver occurs when counsel fails to comment on matters in the staff judge advocate’s recommendation. However,
    2                                             ACM S32186
    later claim of error in the absence of plain error. Rule for Courts-Martial 1106(f)(6);
    United States v. Scalo, 
    60 M.J. 435
    , 436 (C.A.A.F. 2005). “To prevail under a plain error
    analysis, [the appellant bears the burden of showing] that: ‘(1) there was an error; (2) it
    was plain or obvious; and (3) the error materially prejudiced a substantial right.’” Scalo,
    
    60 M.J. at 436
     (quoting Kho, 54 M.J. at 65).
    In this case, the staff judge advocate attached to the SJAR a PDS that incorrectly
    stated the appellant had no combat service. This was plain or obvious error.4 Thus, the
    only question before us “is whether the [erroneous PDS] resulted in material prejudice to
    Appellant’s substantial right to have [her] request for clemency judged on the basis of an
    accurate record.” See United States v. Wellington, 
    58 M.J. 420
    , 427 (C.A.A.F. 2003).
    “Because of the highly discretionary nature of the convening authority’s action on the
    sentence, we will grant relief if an appellant presents ‘some colorable showing of possible
    prejudice’” affecting her opportunity for clemency. Kho, 54 M.J. at 65 (quoting
    Unite States v. Wheelus, 
    49 M.J. 283
    , 289 (C.A.A.F. 1998)); Scalo, 
    60 M.J. at
    436–37.
    Although the PDS failed to properly reflect it, the record indicates that the
    convening authority was made aware of the appellant’s combat service. The defense
    petition for clemency urged the convening authority to consider the appellant’s “wartime
    service,” and the addendum to the SJAR advised that the clemency request was a matter
    the convening authority must consider prior to taking action. Amongst the decorations
    listed on the PDS is the Air Force Expeditionary Ribbon with Gold Border, which is
    authorized for those who were engaged in conducting or supporting combat operations in
    a designated combat zone.5 See Air Force Instruction 36-2803, The Air Force Military
    Awards and Decorations Program, ¶5.3.10.4 (18 December 2013).
    our superior court’s decision in United States v. Gladue, 
    67 M.J. 311
    , 313 (C.A.A.F. 2009) recognizes that military
    courts had failed to “consistently distinguish between the terms ‘waiver’ and ‘forfeiture.’” Gladue held that waiver
    is the “intentional relinquishment or abandonment of a known right,” which precludes appellate review of an issue,
    while forfeiture is “the failure to make the timely assertion of a right” leading to plain error review on appeal
    (quoting United States v. Olano, 
    507 U.S. 725
    , 733 (1993)) (internal quotation marks omitted). Following Gladue,
    the term “forfeiture” should generally characterize the effect of a failure to timely comment on matters in the staff
    judge advocate’s recommendation. See United States v. Parker, __ M.J. __ ACM 38384 (A.F. Ct. Crim. App.
    15 October 2014) (stating that the appellant forfeited, rather than waived, a claim that erroneous information was
    attached to the staff judge advocate’s recommendation).
    4
    Prior to 2010, Rule for Courts-Martial 1106(d)(3)(C) expressly stated that the staff judge advocate must provide
    the convening authority with a “summary of the accused’s service record.” See Manual for Courts-Martial,
    United States (MCM), Part II-150 (2008 ed.). In 2010, the rule was modified to eliminate that requirement, although
    the Drafter’s Analysis states this was done to “allow[] for the use of personnel records of the accused instead.”
    MCM, A21-88 (2012 ed.). Regardless of the language of the rule, the information provided to the convening
    authority must be correct.
    5
    Although not raised by the appellant, we also note the PDS admitted at trial and given to the convening authority
    did not list the Iraq Campaign Medal she was awarded for this deployment to Iraq, although the citation was
    admitted as a defense exhibit. We find no prejudice from this omission but caution both trial and defense counsel to
    exercise care when summarizing an accused’s personnel records on a PDS.
    3                                             ACM S32186
    Moreover, while any service in a zone of hostilities is commendable, neither the
    record nor the appellant herself suggest any valor or extraordinary contribution beyond
    her regular duties as a Food Service Apprentice. Indeed, her Enlisted Performance
    Report for the period in question is less than sterling. The appellant’s 2007 deployment
    to Iraq is followed by a lengthy history of substance abuse and other misconduct
    culminating in the court-martial before us. It is not reasonably possible that inclusion of
    the four-month deployment in the PDS would have influenced the convening authority to
    act any differently. We do not find any “colorable showing of possible prejudice” from
    the erroneous PDS.
    Conclusion
    The approved findings and sentence are correct in law and fact, and no error
    materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
    and 66(c), UCMJ, 
    10 U.S.C. §§ 859
    (a), 866(c). Accordingly, the approved findings and
    sentence are AFFIRMED.
    FOR THE COURT
    STEVEN LUCAS
    Clerk of the Court
    4                                  ACM S32186
    

Document Info

Docket Number: ACM S32186

Filed Date: 10/15/2014

Precedential Status: Non-Precedential

Modified Date: 10/30/2014