United States v. Zegarrundo

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32430
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UNITED STATES
Appellee
v.
Brandon M. ZEGARRUNDO
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 31 January 2018
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Military Judge: J. Wesley Moore.
Approved sentence: Bad-conduct discharge, confinement for 30 days,
and reduction to E-1. Sentence adjudged 3 June 2016 by SpCM con-
vened at Moody Air Force Base, Georgia.
For Appellant: Major Allen S. Abrams, USAF; Major Megan E. Hoff-
man-Logsdon, USAF; Captain Patrick A. Clary, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mary
Ellen Payne, USAF; Major Meredith L. Steer, USAF; Captain Michael
T. Bunnell, USAF.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Judge HUYGEN delivered the opinion of the court, in which Senior
Judge HARDING and Judge SPERANZA joined.
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PUBLISHED OPINION OF THE COURT
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HUYGEN, Judge:
Appellant pleaded guilty at a special court-martial to one specification
each of attempt to wrongfully possess lysergic acid diethylamide (LSD) with
United States v. Zegarrundo, No. ACM S32430
the intent to distribute; conspiracy to distribute 3,4-
methylenedioxymethamphetamine (MDMA) and cocaine; wrongful possession
of cocaine and 3,4-methylenedioxy-N-ethylcathinone; wrongful use of cocaine;
attempted wrongful use of LSD; and wrongful use of marijuana, in violation
of Articles 80, 81, and 112a, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 880, 881, 912a. A panel of officers sentenced Appellant to a bad-
conduct discharge, confinement for 30 days, reduction to the grade of E-1, and
forfeiture of $1,044.00 pay per month for one month. The convening authority
approved the adjudged sentence except for the forfeiture of pay.
Appellant submitted his case on its merits with no specific assignment of
error. The court specified the following issue: whether Appellant is entitled to
new post-trial processing consistent with the decision of the United States
Court of Appeals for the Armed Forces (CAAF) in United States v. Addison,
75 M.J. 405 (C.A.A.F. 2016) (mem), because the addendum to the staff judge
advocate’s recommendation (SJAR) failed to correct an error in Appellant’s
clemency submission. We find Appellant is so entitled and thus order new
post-trial processing.
I. BACKGROUND
In January 2015, Appellant smoked marijuana. In February 2015, he
bought what he thought was LSD and offered it to an Airman. Appellant also
asked another Airman about obtaining illegal drugs and then agreed to ob-
tain MDMA and cocaine for two other people. In March 2015, Appellant in-
gested what he believed to be LSD and, on a separate occasion, snorted and
smoked cocaine. Appellant was tried, convicted, and sentenced in June 2016.
The SJAR correctly advised the special court-martial convening authority
(SPCMCA) that the SPCMCA could not affect the adjudged bad-conduct dis-
charge and that the SPCMCA could “disapprove, commute or suspend in
whole or in part the reduction in rank and forfeiture of pay and confinement.”
The SJA recommended approving the adjudged sentence.
Appellant’s clemency submission alleged error regarding the report of re-
sult of trial attached to the SJAR and a decision by the military judge to ex-
clude testimony concerning the conditions of post-trial confinement. When
discussing the latter, Appellant’s trial defense counsel wrote,
Due to changes in the law you no longer have the ability to dis-
approve confinement (which has been served anyway), but you
do still have the power to disapprove the reduction in rank and
the forfeitures imposed by the panel. Doing this will recognize
that AB Zegarrundo was confined in conditions not authorized
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United States v. Zegarrundo, No. ACM S32430
by the Air Force, and also give him a better financial footing as
he transitions to civilian life . . . .
The addendum to the SJAR addressed the two allegations of error; cor-
rected the report of result of trial; and recommended granting clemency by
disapproving the adjudged forfeiture of pay. The addendum neither men-
tioned the clemency submission’s incorrect assertion that the SPCMCA could
not disapprove the adjudged confinement nor repeated the SJAR’s correct
statement that the SPCMCA could disapprove, commute, or suspend the con-
finement.
After Appellant waived his right to submit additional matters for the
SPCMCA’s consideration, the SJA completed an additional addendum, which
repeated the addendum’s recommendation that the SPCMCA approve only
the bad-conduct discharge, confinement for 30 days, and reduction to E-1.
The SPCMCA approved the sentence as recommended in both addenda.
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 (alteration in original).
We find plain error in the failure of the addendum to the SJAR to correct
the clemency submission’s erroneous statement that “Due to changes in the
law you no longer have the ability to disapprove confinement.” Contrary to
trial defense counsel’s assertion, the change in the law, specifically, Article
60, UCMJ, 10 U.S.C. § 860, limits a convening authority’s ability to affect
confinement of more than six months. Appellant’s adjudged sentence included
confinement for 30 days. The SJAR correctly informed the SPCMCA that he
could “disapprove, commute or suspend in whole or in part” the adjudged 30-
day confinement. Trial defense counsel followed with an incorrect statement
of the law—that the SPCMCA could not disapprove the confinement—and
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United States v. Zegarrundo, No. ACM S32430
requested instead that the SPCMCA disapprove the reduction to E-1 and for-
feiture of pay. In accordance with the CAAF’s disposition in Addison, the SJA
was then obligated to correct the Defense’s error in the addendum; the SJA
did not do so. See Addison, 75 M.J. at 405. The SJA also did not give the De-
fense the opportunity to correct the error. See, e.g., United States v. Olson,
No. ACM 39093, 2017 CCA LEXIS 791, at *11 (A.F. Ct. Crim. App. 22 Dec.
2017) (unpub. op.) (“the SJA rendered the courtesy of permitting the Defense
to correct its own error”); United States v. Harrington, No. ACM 39112, 2017
CCA LEXIS 748, at *10 (A.F. Ct. Crim. App. 6 Dec. 2017) (unpub. op.) (“trial
defense counsel was alerted to the misstatement and submitted a corrected
memorandum”).
As we noted in United States v. Moore, No. ACM S32423, 2017 CCA LEX-
IS 763, at *11 (A.F. Ct. Crim. App. 19 Dec. 2017) (unpub. op.), an addendum’s
correction of an error in the clemency submission 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 coun-
sel 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 competency to advise clients during post-trial processing.
The combination of trial defense counsel’s erroneous statement that the
SPCMCA could not disapprove confinement; the corresponding clemency re-
quest for disapproval of the reduction in rank and forfeiture of pay instead of
confinement; and the SJA’s failure to correct the Defense’s erroneous state-
ment resulted in plain error and constitutes a colorable showing of possible
prejudice to Appellant in light of Addison.
III. CONCLUSION
The action of the convening authority is set aside. The record of trial is re-
turned to The Judge Advocate General for remand to the convening authority
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). Thereafter, the
record of trial will be returned to this court for completion of appellate review
under Article 66, UCMJ.
FOR THE COURT
KATHLEEN M. POTTER
Acting Clerk of the Court
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