Document Info

DocketNumber: ACM S32344

Filed Date: 2/16/2017

Status: Non-Precedential

Modified Date: 2/23/2017

  •              U NITED S TATES AIR F ORCE
    C OURT OF C RIMINAL APPEALS
    ________________________
    No. ACM S32344
    ________________________
    UNITED STATES
    Appellee
    v.
    Ethan A. DEMILLER
    Airman (E-2), U.S. Air Force, Appellant
    ________________________
    Appeal from the United States Air Force Trial Judiciary
    Decided 16 February 2017
    ________________________
    Military Judge: Brendon K. Tukey.
    Approved sentence: Bad-conduct discharge, confinement for 30 days, for-
    feiture of $1,000.00 pay per month for one month, and reduction to E-1.
    Sentence adjudged 12 June 2015 by SpCM convened at F.E. Warren Air
    Force Base, Wyoming.
    For Appellant: Major Lauren A. Shure, USAF, and Captain Annie W.
    Morgan, USAF.
    For Appellee: Major J. Ronald Steelman III, USAF, and Gerald R. Bruce,
    Esquire.
    Before DUBRISKE, HARDING, and C. BROWN, Appellate Military
    Judges
    Senior Judge DUBRISKE delivered the opinion of the Court, in which
    Judges HARDING and C. BROWN joined.
    ________________________
    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
    ________________________
    United States v. Demiller, No. ACM S32344
    DUBRISKE, Senior Judge:
    Consistent with his pleas pursuant to a pretrial agreement, Appellant was
    convicted by a military judge sitting alone of dereliction of duty, driving while
    intoxicated, wrongful use of marijuana on divers occasions, and wrongful pos-
    session of marijuana, in violation of Articles 92, 111, and 112a, UCMJ, 10
    U.S.C. §§ 892, 911, 912a. Appellant was initially charged with wrongful intro-
    duction of marijuana onto a military installation, but pleaded guilty by excep-
    tions and substitutions to the lesser included offense of wrongful possession of
    marijuana. The Government declined to prove up the greater offense after the
    military judge accepted Appellant’s guilty plea in accordance with the pretrial
    agreement.
    Appellant was sentenced to a bad-conduct discharge, 30 days of confine-
    ment, forfeiture of $1,000.00 pay per month for one month, and reduction to E-
    1. The convening authority approved the sentence as adjudged.
    Appellant raises two issues on appeal. First, he argues the military judge
    erred in accepting Appellant’s plea to wrongful possession of marijuana by ex-
    ceptions and substitutions. Second, Appellant claims the staff judge advocate
    (SJA) failed to provide accurate legal advice to the convening authority during
    the post-trial processing of his case. Appellant requests we set aside his sen-
    tence to confinement to remedy this error.
    As we find no error substantially prejudices a substantial right of this Ap-
    pellant, we now affirm.
    I. DISCUSSION
    A. Acceptance of Appellant’s Guilty Plea to a Lesser Included Offense.
    Citing Rule for Courts-Martial (R.C.M.) 918(a)(1), Appellant argues the
    military judge erred by accepting Appellant’s plea to wrongful possession of
    marijuana as exceptions and substitutions cannot be used to substantially
    change the nature of a charged offense. In making this argument, Appellant
    acknowledges the offense of possession of marijuana is a lesser included offense
    of the wrongful introduction of marijuana specification originally charged by
    the Government. Appellant also concedes his plea to the lesser offense was
    provident.
    Appellant’s argument is misplaced. When a convening authority refers a
    charge to a court-martial, any lesser included offense of that charge is referred
    with it, and need not be separately charged and referred. United States v.
    Nealy, 
    71 M.J. 73
    , 76 (C.A.A.F. 2012). As to the appropriateness of the military
    judge’s acceptance of Appellant’s plea to a lesser included offense, we note Ar-
    ticle 79, UCMJ, 10 U.S.C. § 879, provides the following guidance:
    2
    United States v. Demiller, No. ACM S32344
    Findings of guilty to a lesser included offense. A court-martial
    may find an accused not guilty of the offense charged, but guilty
    of a lesser included offense by the process of exception and sub-
    stitution. The court-martial may except (that is, delete) the
    words in the specification that pertain to the offense charged
    and, if necessary, substitute language appropriate to the lesser
    included offense. . . .
    Manual for Courts-Martial, United States (2012 ed.), Pt. IV, ¶ 3.b.(3); see also
    R.C.M. 910(a)(1), Discussion (noting a different process when an accused
    pleads guilty to a lesser included offense without using exceptions and substi-
    tutions). As such, we find the military judge’s handling of Appellant’s plea was
    appropriate.
    B. Erroneous Post-Trial Processing Advice.
    Although he did not object during clemency, Appellant now alleges the SJA
    gave erroneous legal advice when the convening authority was instructed he
    could not disapprove, commute, or suspend Appellant’s sentence to confine-
    ment. Appellant requests this court set aside his 30-day sentence to confine-
    ment to correct this error.
    We review de novo alleged errors in post-trial processing. See United States
    v. Kho, 
    54 M.J. 63
    , 65 (C.A.A.F. 2000); United States v. Sheffield, 
    60 M.J. 591
    ,
    593 (A.F. Ct. Crim. App. 2004). Although the threshold for establishing preju-
    dice in this context is low, the appellant must nonetheless make at least “some
    colorable showing of possible prejudice.” United States v. Scalo, 
    60 M.J. 435
    ,
    436–37 (C.A.A.F. 2005) (quoting 
    Kho, 54 M.J. at 65
    ).
    Failure to timely comment on matters in the staff judge advocate’s recom-
    mendation (SJAR) or addendum, to include matters attached to it, forfeits the
    issue unless there is plain error. R.C.M. 1106(f)(6); 
    Scalo, 60 M.J. at 436
    . Under
    a plain error analysis, the appellant bears the burden of showing: (1) there was
    an error, (2) it was plain or obvious, and (3) the error materially prejudiced a
    substantial right of the appellant. 
    Kho, 54 M.J. at 65
    .
    As Appellant was sentenced to less than six months of confinement, the
    Government concedes—and we agree—that the SJA erred in advising the con-
    vening authority that he could not provide clemency relief in the form of a re-
    duced term of confinement. See Article 60(c)(4)(A), UCMJ, 10 U.S.C. §
    860(c)(4)(A).
    Yet finding error does not end our inquiry, as Appellant must still demon-
    strate a colorable showing of possible prejudice in order to prevail on this issue.
    Whether an appellant was prejudiced by a mistake in the SJAR generally re-
    quires a court to consider whether the convening authority “plausibly may
    have taken action more favorable to” the appellant had he or she been provided
    3
    United States v. Demiller, No. ACM S32344
    accurate or more complete information. United States v. Johnson, 
    26 M.J. 686
    ,
    689 (A.C.M.R. 1988), aff'd, 
    28 M.J. 452
    (C.M.A. 1989); see also United States v.
    Green, 
    44 M.J. 93
    , 95 (C.A.A.F. 1996). Given Appellant was released from con-
    finement prior to the convening authority’s action and his clemency request
    only asked that his punitive discharge be aside, we find Appellant has not met
    his burden of establishing prejudice.
    Moreover, the Government has been able to demonstrate that any error did
    not prejudice Appellant. The SJA submitted an affidavit conceding the advice
    given to the convening authority was incorrect. However, the SJA asserted that
    even with the convening authority’s broader discretion, she still would have
    recommended the convening authority approve the sentence as adjudged.
    More importantly, the convening authority also submitted an affidavit not-
    ing that he would not have provided Appellant with relief on the sentence to
    confinement even with the knowledge now that he had the authority to do so
    during clemency. As Appellant is unable to demonstrate a colorable showing of
    possible prejudice, he cannot prevail on this issue. 
    Scalo, 60 M.J. at 436
    –37.
    Although we find no prejudice to this particular Appellant, we also note the
    SJAR failed to include a bad-conduct discharge as a possible punishment when
    advising the convening authority on the maximum punishment for this special
    court-martial. Greater attention to detail will eliminate unnecessary errors as
    found in this case and better facilitate accurate post-trial processing.
    II. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
    ror materially prejudicial to the substantial rights of Appellant occurred.
    Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
    findings and the sentence are AFFIRMED.
    FOR THE COURT
    KURT J. BRUBAKER
    Clerk of the Court
    4