United States v. Franklin

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32339
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UNITED STATES
Appellee
v.
Evan D. FRANKLIN
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 3 February 2017
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Military Judge: L. Martin Powell (sitting alone).
Approved sentence: Bad-conduct discharge, confinement for 70 days, for-
feiture of $1,000 pay per month for 3 months, and reduction to the grade
of E-1. Sentence adjudged 13 August 2015 by SpCM convened at Malm-
strom Air Force Base, Montana.
For Appellant: Lieutenant Colonel Anthony D. Ortiz, USAF; and Major
Lauren A. Shure, USAF.
For Appellee: Major Mary Ellen Payne, USAF; Gerald R. Bruce, Esquire;
and Morgan L. Herrell (civilian extern). 1
Before MAYBERRY, KIEFER, and JOHNSON, Appellate Military
Judges.
Judge KIEFER delivered the opinion of the court, in which Senior Judge
MAYBERRY and Judge JOHNSON joined.
1Ms. Herrell was at all times supervised by attorneys assigned to the Appellate Gov-
ernment Division during her involvement in this case.
United States v. Franklin, No. ACM S32339
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This is an unpublished opinion and, as such, does not serve as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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KIEFER, Judge:
Appellant was convicted pursuant to his pleas by a military judge sitting
alone of wrongful use of marijuana on divers occasions, wrongful distribution
of hydrocodone, and soliciting another Airman to wrongfully possess hydroco-
done in violation of Articles 112a and 134, UCMJ, 10 U.S.C. §§ 912a, 934. Ap-
pellant was sentenced to a bad-conduct discharge, confinement for 75 days,
forfeiture of $1,000 pay per month for three months, and reduction to the grade
of E-1. Pursuant to a pretrial agreement, the convening authority approved
only so much of the sentence that included a bad-conduct discharge, confine-
ment for 70 days, forfeiture of $1,000 pay per month for three months, and
reduction to the grade of E-1.
I. BACKGROUND
Appellant was assigned to Malmstrom Air Force Base, Montana. On mul-
tiple occasions, he smoked marijuana with civilian friends while driving
around the local area in a car. He also smoked marijuana at parties with both
military and civilian friends. On one occasion, Appellant provided some of his
prescription hydrocodone to a civilian friend without lawful authority. On a
separate occasion, Appellant offered hydrocodone to a fellow military member.
Appellant maintains that the staff judge advocate (SJA) failed to prepare
an addendum to the staff judge advocate’s recommendation (SJAR) and, as
such, there is no evidence that the convening authority considered Appellant’s
clemency matters. Appellant further argues that the failure to prepare the ad-
dendum constitutes a post-trial processing error, and the Government must
route the case back through the convening authority for a new post-trial pro-
cess and action.
In response, the Government has provided a sworn declaration from the
SJA indicating that she mistakenly failed to prepare an addendum to the
SJAR, but she personally witnessed the convening authority review Appel-
lant’s clemency submission. The Government also submitted a sworn declara-
tion from the special court-martial convening authority confirming that he re-
viewed and considered all of Appellant’s clemency matters prior to taking ac-
tion in the case.
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United States v. Franklin, No. ACM S32339
II. DISCUSSION
A. Staff Judge Advocate Recommendation and Addendum
We review post-trial processing issues 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)). Rule for Courts-Martial (R.C.M.) 1106(a) requires
the Government to prepare an SJAR in special courts-martial cases where the
adjudged sentence includes a bad-conduct discharge or confinement for one
year. The SJAR must include a copy of the report of the results of trial, a copy
or summary of the pretrial agreement, any recommendation for clemency by
the sentencing authority made in conjunction with the announced sentence,
and the SJA’s concise recommendation. R.C.M. 1106(d)(3). Once the Govern-
ment serves the accused with the SJAR, he may submit matters for the con-
vening authority’s consideration, including challenges to the findings or sen-
tence, matters in mitigation, and a request for clemency. Article 60(b), UCMJ,
10 U.S.C. § 860(b); R.C.M. 1105. Following submission of matters by the ac-
cused, the SJA “may supplement” the SJAR. R.C.M. 1106(f)(7). 2
In United States v. Craig, 28 M.J. 321, 324–25 (C.M.A. 1989), our superior
court held that the accused has a statutory right to submit matters. Addition-
ally, “the convening authority is required to consider any matters submitted
by the accused under R.C.M. 1105 or, if applicable, 1106(f).” Id. at 325. Further,
there must be evidence in the record that prior to taking final action, the con-
vening authority considered the matters submitted. Id.; see also Article
60(c)(2), UCMJ, 10 U.S.C. § 860(c)(2); and R.C.M. 1107(b)(3). When an SJA
prepares an addendum to the SJAR informing the convening authority that
defense matters are attached and the convening authority must consider those
matters, “the Government will then be entitled to rely on a presumption of
regularity with respect to whether the convening authority has performed his
responsibilities in a proper manner.” United States v. Foy, 30 M.J. 664, 665–66
(A.F.C.M.R. 1990). Here, the SJA did not prepare an addendum to her recom-
mendation.
In United States v. Godreau, 31 M.J. 809, 811–12 (A.F.C.M.R. 1990), we
held that two conditions must be met to comply with Craig when an appellant
submits clemency matters but no addendum is prepared. First, the convening
2 Although Rule for Courts-Martial (1106)(f)(7) does not require an addendum to the
SJAR, Air Force Instruction 51-201, Administration of Military Justice, ¶ 9.20, does
require preparation of an addendum whenever appellant submits matters. Thus, the
SJAR addendum is the most appropriate method to inform the convening authority of
an appellant’s matters and the requirement to review and consider those matters prior
to action. As outlined below, however, the purposes served by the addendum are satis-
fied in this case.
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United States v. Franklin, No. ACM S32339
authority must be advised that he is required to consider all matters submitted
by the accused. Id. Second, there must be some way to determine that all mat-
ters were considered by the convening authority. Id. at 812. The key inquiry is
whether the convening authority reviewed and considered the defense matters
prior to taking action. In Godreau, to demonstrate compliance with the review
and consider requirement, we outlined a procedure in which the convening au-
thority initials and dates each item submitted by the appellant and counsel.
Id. Absent this, the Government must provide an affidavit from the convening
authority confirming that the defense matters were considered prior to action.
Id.
Here, the record now contains sworn declarations from the SJA and the
convening authority. The SJA’s declaration states that all defense matters
were provided to the convening authority, and the SJA witnessed the conven-
ing authority reviewing those matters. The convening authority’s declaration
indicates that he received, reviewed, and considered all matters submitted by
the Defense. Accordingly, we find that the convening authority considered Ap-
pellant’s clemency submission prior to taking action, and the Government sat-
isfied the requirements of R.C.M. 1105, 1106, and 1107, as well as those spelled
out in Craig, 28 M.J. at 325, and Godreau, 31 M.J. at 812.
We further note that R.C.M. 1106(d)(6) prescribes the following: “In case of
error in the recommendation not otherwise waived under subsection (f)(6) of
this rule, appropriate corrective action shall be taken by appellate authorities
without returning the case for further action by a convening authority.” (Em-
phasis added). While this does not directly address a failure to prepare an ad-
dendum to the SJAR, we find it instructive on appellate authorities’ ability to
address issues in post-trial processing between the announcement of sentence
and action. In this case, based on the evidence that defense matters were pro-
vided to and reviewed by the convening authority prior to taking action, we are
convinced there was no prejudice to Appellant in the SJA’s failure to prepare
an addendum to the SJAR. The facts neither warrant nor necessitate new post-
trial processing, and we therefore grant no relief.
III. CONCLUSION
The findings and the sentence are correct in law and fact, and no error ma-
terially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
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United States v. Franklin, No. ACM S32339
Accordingly, the findings and sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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