United States v. Heeter

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32573
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UNITED STATES
Appellee
v.
Matthew G. HEETER
Technical Sergeant (E-6), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 9 February 2021
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Military Judge: Jason M. Kellhofer.
Approved sentence: Bad-conduct discharge and reduction to E-1. Sen-
tence adjudged 12 December 2018 by SpCM convened at Shaw Air Force
Base, South Carolina.
For Appellant: Major Yolanda D. Miller, USAF.
Before J. JOHNSON, KEY, and RAMÍREZ, 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This is an unpublished opinion and, as such, does not serve as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 30.4.
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PER CURIAM:
This case is before us for the second time. Previously, this court set aside
the convening authority’s action and returned the record of trial to The Judge
Advocate General for remand to the convening authority for new post-trial pro-
cessing with assignment of conflict-free defense counsel. See United States v.
Heeter, No. ACM S32573, 2020 CCA LEXIS 268, at *8–9 (A.F. Ct. Crim. App.
12 Aug. 2020) (finding Appellant met his burden of demonstrating some color-
able showing of possible prejudice from post-trial processing errors). New post-
trial processing has been accomplished.
United States v. Heeter, No. ACM S32573
A special court-martial composed of a military judge sitting alone found
Appellant guilty, pursuant to his pleas, of one charge and one specification of
wrongfully using cocaine in violation of Article 112a, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 912a. 1 The military judge sentenced Appellant to
a bad-conduct discharge and reduction to the grade of E-1. The convening au-
thority approved the sentence as adjudged.
Consistent with our remand, a new post-trial processing occurred. In re-
sponse to a new staff judge advocate recommendation, Appellant submitted
new clemency matters and requested the convening authority approve reduc-
tion to the grade of E-5 rather than E-1. On 28 October 2020, the convening
authority took action and approved the sentence again as adjudged. 2
Appellant’s case was re-docketed with our court for further review on 19
November 2020. Appellant did not file a supplemental brief within 60 days.
See JT. CT. CRIM. APP. R. 18(d) (1 Aug. 2019).
Upon further review, the approved findings and sentence are correct in law
and fact, and no error materially prejudicial to the substantial rights of Appel-
lant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. § 859(a), 866(c). Ac-
cordingly, the findings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
1All references in this opinion to the Uniform Code of Military Justice and to the Rules
for Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.).
2 We note the staff judge advocate recommendation (SJAR) erroneously advised the
convening authority that the maximum sentence that could be imposed by this special
court-martial included, inter alia, a fine in addition to forfeiture of two-thirds pay per
month for twelve months, as well as three months of hard labor without confinement
and restriction to specified limits for two months in addition to 12 months of confine-
ment. See R.C.M. 1003(b)(3), (5), (6); United States v. Books, No. ACM S32369, 2017
CCA LEXIS 226, at *7 (A.F. Ct. Crim. App. 31 Mar. 2017). However, under the circum-
stances of this case we find no colorable showing of possible prejudice. See United
States v. Scalo, 60 M.J. 435, 436–37 (C.A.A.F. 2005) (citations omitted).
2