United States v. Capers , 2005 CAAF LEXIS 1467 ( 2005 )

UNITED STATES, Appellee
v.
Jessie R. CAPERS, Interior Communications
Electrician First Class
U.S. Navy, Appellant
No. 05-0341
Crim. App. No. 200300245
United States Court of Appeals for the Armed Forces
Argued November 8, 2005
Decided December 22, 2005
EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Lieutenant Steven C. Reyes, JAGC, USNR (argued);
Lieutenant Colin A. Kisor, JAGC, USNR.
For Appellee: Lieutenant Kathleen A. Helmann, JAGC, USNR
(argued); Commander Charles N. Purnell, JAGC, USN (on brief);
Lieutenant Christopher J. Hajec, JAGC, USNR.
Military Judge: Nels H. Kelstrom
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Capers, No. 05-0341/NA
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of officer members,
Appellant was convicted, contrary to his pleas, of rape, in
violation of Article 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920 (2000). He was sentenced to confinement
for three years, forfeiture of all pay and allowances, and
reduction to pay grade E-1. The convening authority approved
the sentence and suspended forfeiture of pay for six months.
The convening authority also waived automatic forfeitures for
six months on the condition that the money be paid to the
Appellant’s wife. The Court of Criminal Appeals affirmed the
findings and sentence in an unpublished opinion. United States
v. Capers, No. NMCCA 200300245, 2005 CCA LEXIS 52, 2005 WL
408054, (N-M. Ct. Crim. App. Feb. 22, 2005).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE LOWER APPELLATE COURT ERRED IN
CONCLUDING THAT DEFENSE COUNSEL’S ERRONEOUS
REQUEST TO SUSPEND FORFEITURES AND THE STAFF
JUDGE ADVOCATE’S ERRONEOUS ADVICE
RECOMMENDING SUCH ACTION DID NOT PREJUDICE
APPELLANT WHEN HE WAS NOT ENTITLED TO PAY.
For the reasons set forth below, we affirm.
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I. BACKGROUND
Prior to the convening authority’s action on the results of
trial, Appellant submitted a clemency request under Rule for
Courts-Martial (R.C.M.) 1105, asking the convening authority to
set aside the verdict. In the alternative, Appellant asked the
convening authority to “suspend confinement over 1 year and/or
suspend the reduction in rate and forfeiture.” The staff judge
advocate (SJA) prepared a recommendation to the convening
authority under R.C.M. 1106(d)(1), which recommended disapproval
of the accused’s clemency request.
Following service of the SJA’s recommendation on Appellant
and his counsel, the defense counsel submitted a supplemental
clemency request, asking the convening authority to suspend
forfeitures for six months for the benefit of Appellant’s
family. See R.C.M. 1106(f). The supplemental request included
a letter from Appellant’s wife, who noted that she was barely
able to support their three children, and that they depended on
Appellant’s salary for basic necessities.
The SJA recommended that the convening authority grant the
supplemental request. The convening authority agreed, ordering:
(1) suspension of forfeitures for six months, and (2) waiver of
automatic forfeitures for six months for the benefit of
Appellant’s family.
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The clemency action was based on the erroneous premise that
Appellant was entitled to pay. Because Appellant had completed
his period of obligated service and was sentenced to
confinement, he was not entitled to compensation. See Dep’t of
Defense, Financial Management Regulation vol. 7A, para. 480802
(2005). As a result, there was no pay to forfeit, which meant
that no funds were available for Appellant’s dependents, either
through waived or suspended forfeitures. See United States v.
Smith, 56 M.J. 271, 275 (C.A.A.F. 2002).
II. DISCUSSION
Both the SJA and the defense counsel failed to consider the
fact that Appellant was not entitled to pay. Appellant has not
raised the issue of whether defense counsel’s error constituted
ineffective assistance of counsel. See United States v. Scott,
24 M.J. 186, 188 (C.M.A. 1987). Accordingly, we shall focus on
the impact of the advice provided to the convening authority by
the SJA.
If defense counsel does not make a timely comment on an
error or omission in the SJA’s recommendation, “the error is
waived unless it is prejudicial under a plain error analysis.”
United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005) (citing
R.C.M. 1106(f); United States v. Kho, 54 M.J. 63, 65 (C.A.A.F.
2000)). Because Appellant did not object to the recommendation
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of the SJA, we must determine whether there was error, whether
it was plain, and whether it materially prejudiced a substantial
right of the accused. Scalo, 60 M.J. at 436 (citing Kho, 54
M.J. at 65; United States v. Powell, 49 M.J. 460, 463, 465
(C.A.A.F. 1998)). With respect to an error in an SJA’s post-
trial recommendation, the prejudice prong involves a relatively
low threshold -- a demonstration of “some colorable showing of
possible prejudice.” Scalo, 60 M.J. at 436-37 (quoting Kho, 54
M.J. at 65; citing United States v. Wheelus, 49 M.J. 283, 289
(C.A.A.F. 1998)). Our review is de novo. Kho, 54 M.J. at 65.
In that context, and under the circumstances of this case, we
shall analyze the issue of prejudice directly, without regard to
whether the lower court correctly applied the applicable
standard.
The end of a person’s period of obligated service is a fact
readily available from service records routinely used in
sentencing and post-trial action. Review of such records would
have informed the SJA that Appellant was not entitled to
compensation, and that there were no funds available to benefit
Appellant’s dependents. See, e.g., Smith, 56 M.J. at 275.
Accordingly, the SJA’s recommendation -- that the convening
authority suspend adjudged forfeitures and waive automatic
forfeitures to assist Appellant’s family -- constituted a plain
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and obvious error. The critical issue before us is whether
there has been a colorable showing of possible prejudice.
The colorable showing threshold is low, but the prejudice
must bear a reasonable relationship to the error, and it must
involve a reasonably available remedy. See Scalo, 60 M.J. at
437. Here, the convening authority sought to provide immediate,
but limited assistance to the family during Appellant’s first
six months of imprisonment by diverting funds from compensation
to which the Appellant might otherwise have been entitled.
Appellant has referred vaguely to the possibility that a
properly informed convening authority might have provided an
undefined amount of “reduced confinement” so that the Appellant,
unconfined, could have assisted his family with their financial
needs. Appellant, who was convicted of forcible rape, was
sentenced to confinement for three years. Appellant does not
identify any length of reduction that might reasonably have been
provided by the convening authority under these circumstances.
In particular, Appellant does not suggest that the convening
authority would have considered freeing Appellant from
confinement for a specific period of time at the outset of his
sentence -- the period that was the focus of Appellant’s
supplemental request and the convening authority’s attempt to
provide assistance to the family. Given the nature of
Appellant’s offense, the period of adjudged confinement, and
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Appellant’s inability to identify a remedy with reasonable
precision, Appellant has not provided an adequate description of
what a properly advised convening authority might have done to
structure an alternative form of clemency. This is not a case
in which a reasonably available remedy related to the
identifiable error is otherwise readily apparent. Compare
United States v. Finster, 51 M.J. 185 (C.A.A.F. 1999). Under
these circumstances, we conclude that there has not been a
colorable showing of possible prejudice.
III. CONCLUSION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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