United States v. Reeves

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32517
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UNITED STATES
Appellee
v.
Paxton C. REEVES
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 26 September 2018
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Military Judge: Bradley A. Morris.
Approved sentence: Bad-conduct discharge, confinement for 100 days,
forfeiture of $600.00 pay per month for 3 months, reduction to E-1, and
a reprimand. Sentence adjudged 22 February 2018 by SpCM convened
at Joint Base San Antonio-Lackland, Texas.
For Appellant: Lieutenant Colonel R. Davis Younts, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Mary Ellen
Payne, Esquire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
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This is an unpublished opinion and, as such, does not serve as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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PER CURIAM:
A military judge sitting as a special court-martial convicted Appellant, in
accordance with his pleas pursuant to a pretrial agreement (PTA), of one spec-
ification of dereliction of duty by underage drinking on divers occasions, one
specification of wrongfully distributing a Schedule IV controlled substance
United States v. Reeves, No. ACM S32517
(Xanax) on divers occasions, one specification of wrongfully distributing mari-
juana on divers occasions, one specification of wrongfully using marijuana on
divers occasions, one specification of wrongfully possessing marijuana, and one
specification of drunk and disorderly conduct, in violation of Articles 92, 112a,
and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 92, 112a, 134.
After the military judge accepted Appellant’s guilty pleas, and in accordance
with the PTA, a second specification of dereliction of duty and one specification
of wrongfully using Xanax in violation of Articles 92 and 112a, UCMJ, were
dismissed. The military judge sentenced Appellant to a bad-conduct discharge,
confinement for 100 days, forfeiture of $600.00 pay per month for three
months, reduction to the grade of E-1, and a reprimand. The convening author-
ity approved the adjudged sentence.
Appellant’s case was submitted to this court for review on its merits with-
out any assignments of error. However, we address an error in the post-trial
processing of Appellant’s court-martial.
The staff judge advocate’s recommendation (SJAR) to the convening au-
thority identified the charges and specifications that were referred to trial.
However, it failed to note that two of those specifications were subsequently
dismissed in accordance with the PTA. The SJAR further stated, incorrectly,
“[t]here was a pretrial agreement in this case where [Appellant] agreed to
plead guilty to all charges and specifications.” (Emphasis added.) Thus, the
SJAR conveyed the impression Appellant had been convicted of eight specifi-
cations when in fact he had only been convicted of six. This was error. *
However, Appellant has not asserted, and we do not find, any colorable
showing of possible prejudice from the error under the facts of this case. See
United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). First, the report of result
of trial (RRT) attached to the SJAR correctly indicated that Specification 1 of
Charge I and Specification 3 of Charge II had been dismissed. Second, the clem-
ency memorandum the trial defense counsel submitted to the convening au-
thority in accordance with Rule for Courts-Martial 1105 correctly recited the
specifications of which Appellant had been convicted. Third, the correct infor-
mation in the RRT and clemency request likely resonated with the convening
* The SJAR also incorrectly stated the convening authority had “the authority to ap-
prove or dismiss the finding[s] of guilt,” and to “disapprove, commute, or suspend the
adjudged sentence [including the bad-conduct discharge] in whole or in part without
limitation.” In light of the limitations on the convening authority’s ability to modify
the findings and sentence of a court-martial identified in Rule for Courts-Martial
1107(c) and (d), this advice was erroneous (albeit favorable to Appellant). However, the
staff judge advocate subsequently corrected these errors in an addendum to the SJAR.
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United States v. Reeves, No. ACM S32517
authority because he had personally signed the PTA which stated the two spec-
ifications would be dismissed. Considering these facts in light of all the circum-
stances of the case, including the PTA and the sentence adjudged, we are con-
vinced there is no colorable showing of possible prejudice from the SJAR error.
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), UCMJ, 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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