United States v. Hurtado

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32494
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UNITED STATES
Appellee
v.
Eric D. HURTADO
Technical Sergeant (E-6), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 22 August 2018
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Military Judge: L. Martin Powell (arraignment); Ryan A. Hendricks.
Approved sentence: Bad-conduct discharge, confinement for 30 days,
forfeiture of $1,066.00 pay per month for 12 months, and reduction to
E-1. Sentence adjudged 19 September 2017 by SpCM convened at Do-
ver Air Force Base, Delaware.
For Appellant: Major Meghan Glines-Barney, USAF; Major Rebecca J.
Otey, USAF.
For Appellee: Major Thomas C. Franzinger, USAF; Mary Ellen Payne,
Esquire.
Before HARDING, HUYGEN, and POSCH, Appellate Military Judges.
Judge HUYGEN delivered the opinion of the court, in which Senior
Judge HARDING and Judge POSCH joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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HUYGEN, Judge:
Appellant, in accordance with a pretrial agreement, pleaded guilty at a
special court-martial to two specifications of willful dereliction of duty for
United States v. Hurtado, No. ACM S32494
wrongfully establishing personal relationships with female junior Airmen in
a training status and four specifications of service-discrediting conduct for
using an electronic communication device to impersonate a teenaged female
for the purpose of soliciting from four girls pictures of their bodies, in viola-
tion of Articles 92 and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 892, 934. A military judge sentenced Appellant to a bad-conduct
discharge, confinement for 12 months, forfeiture of $1,066.00 pay per month
for 12 months, and reduction to the grade of E-1. The convening authority
approved only 30 days of confinement pursuant to the pretrial agreement but
otherwise approved the sentence as adjudged.
Appellant submitted his case on its merits with no specific assignment of
error. The court found errors in the staff judge advocate’s recommendation
(SJAR) and ordered the Government to show cause why the court should not
remand the case for new post-trial processing. The Government does not op-
pose new post-trial processing, which we now order.
I. BACKGROUND
The SJAR is replete with mistakes, which are both administrative and
substantive and include three misstatements of the convening authority’s
power to affect the adjudged findings and sentence pursuant to Article 60,
UCMJ, 10 U.S.C. § 860. The misstatements all stem from the sole specifica-
tion with a charged timeframe that began before 24 June 2014, implicating
the version of Article 60, UCMJ, in effect before that date. Contrary to what
the SJA advised in the SJAR, the convening authority had the power to (1)
dismiss by setting aside the finding of guilty of Specification 8 (later identi-
fied as Specification 2) of Charge I or change the finding of guilty to a lesser
included offense; (2) disapprove or suspend the bad-conduct discharge; and
(3) disapprove, commute, or suspend, in whole or in part, the 30 days of con-
finement as well as the forfeiture of pay and reduction in rank. In addition,
the report of result of trial attached to the SJAR (and the corresponding
court-martial order issued after action) failed to account for all of the specifi-
cations on which Appellant was arraigned on 10 July 2017.
The trial defense counsel’s clemency submission implicitly relied on the
SJAR and requested that the convening authority “exercise the discretion
vested in [him] as Convening Authority to grant clemency as [he] deem[s] ap-
propriate.” The submission also misstated the convening authority’s power to
affect the adjudged and mandatory forfeiture of pay under Articles 57(a) and
58b, UCMJ, 10 U.S.C. §§ 857(a), 858b. The significance of the SJA’s and de-
fense counsel’s errors was magnified by Appellant’s sole request for clemency
from the convening authority: “[a]ny relief you are able to provide from the
forfeitures imposed.”
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United States v. Hurtado, No. ACM S32494
Not only did the addendum to the SJAR fail to correct the errors in the
SJAR and defense counsel’s clemency submission, but it added one more by
recommending that the convening authority “approve the findings and sen-
tence as adjudged.” Had the convening authority done so, he would have
failed to act in accordance with the pretrial agreement.
II. DISCUSSION
The proper completion of post-trial processing is a question of law the
court reviews de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)
(citing United States v. Powell, 49 M.J. 460, 462 (C.A.A.F. 1998)). Failure to
comment in a timely manner on matters in the SJAR or matters attached to
the SJAR waives in the absence of plain error, or forfeits, any later claim of
error. Rule for Courts-Martial (R.C.M.) 1106(f)(6); United States v. Scalo, 60
M.J. 435, 436 (C.A.A.F. 2005). Analyzing for plain error, we assess whether
“(1) there was an error; (2) it was plain or obvious; and (3) the error material-
ly prejudiced a substantial right.” Scalo, 60 M.J. at 436 (quoting Kho, 54 M.J.
at 65). “To meet this burden in the context of a post-trial recommendation
error . . . an appellant must make ‘some colorable showing of possible preju-
dice.’” Id. at 436–37 (quoting Kho, 54 M.J. at 65). “The threshold is low, but
there must be some colorable showing of possible prejudice . . . in terms of
how the [error] potentially affected an appellant’s opportunity for clemency.”
Id. at 437.
If defense counsel misstates the law in a clemency submission, the SJA
should give the defense the opportunity to correct the error or must correct it
in the SJAR addendum. United States v. Addison, 75 M.J. 405 (C.A.A.F.
2016) (mem.); United States v. Zegarrundo, 77 M.J. 612 (A.F. Ct. Crim. App.
2018); see, e.g., United States v. Olson, No. ACM 39093, 2017 CCA LEXIS 791(A.F. Ct. Crim. App. 22 Dec. 2017) (unpub. op.); United States v. Harrington,
No. ACM 39112, 2017 CCA LEXIS 748 (A.F. Ct. Crim. App. 6 Dec. 2017) (un-
pub. op.).
[A]n addendum’s correction of an error in the clemency submis-
sion would likely constitute a new matter and prompt notice
and opportunity for the Defense to respond. R.C.M. 1106(f)(7).
The problem is avoided altogether when trial defense counsel
does not make an incorrect statement of the law concerning the
convening authority’s clemency options. A correct statement of
the law in a clemency submission also evidences trial defense
counsel’s understanding of Article 60, UCMJ, and thus compe-
tency to advise clients during post-trial processing.
Zegarrundo, 77 M.J. at 614 (citing United States v. Moore, No. ACM S32423,
2017 CCA LEXIS 763, at *11 (A.F. Ct. Crim. App. 19 Dec. 2017) (unpub. op.)).
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United States v. Hurtado, No. ACM S32494
In yet another case, a lack of care and diligence has resulted in errors in
the post-trial processing of an Airman’s court-martial. Because of the errors
in the SJAR and addendum, we are returning Appellant’s case for new post-
trial processing. United States v. Aiken, No. ACM 39288, 2018 CCA LEXIS
366 (A.F. Ct. Crim. App. 20 Jul. 2018) (unpub. op.). Because of the error in
the clemency submission, we are directing conflict-free trial defense counsel.
III. CONCLUSION
The action of the convening authority is SET ASIDE. The record of trial
is returned to The Judge Advocate General for remand to the convening au-
thority for new post-trial processing and conflict-free trial defense counsel
consistent with this opinion. Article 66(e), UCMJ, 10 U.S.C. § 866(e). There-
after, the record of trial will be returned to this court for completion of appel-
late review under Article 66, UCMJ.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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