United States v. Gault

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39368
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UNITED STATES
Appellee
v.
Nikolas L. GAULT
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 30 November 2018
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Military Judge: Vance H. Spath.
Approved sentence: Dishonorable discharge, confinement for 12 months,
and reduction to E-1. Sentence adjudged 29 August 2017 by GCM con-
vened at Andersen Air Force Base, Guam.
For Appellant: Major Patrick A. Clary, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
Judge DENNIS delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge LEWIS joined.
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This is an unpublished opinion and, as such, does not serve as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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DENNIS, Judge:
Appellant was convicted, in accordance with his pleas and pursuant to a
pretrial agreement, of one specification of attempted sexual assault of a child,
two specifications of attempted sexual abuse of a child, and one specification of
United States v. Gault, No. ACM 39368
wrongful use of methamphetamine in violation of Articles 80 and 112a, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 912a. A military judge
sitting alone sentenced Appellant to a dishonorable discharge, confinement for
14 months, and reduction to the grade of E-1. Pursuant to the pretrial agree-
ment, the convening authority approved only 12 months confinement, but oth-
erwise approved the sentenced as adjudged. The convening authority denied
Appellant’s request for deferment of reduction in grade and automatic forfei-
ture of pay but granted Appellant’s request for waiver of automatic forfeiture
of pay for a period of six months for the benefit of Appellant’s dependents.
Appellant raises a single issue on appeal: whether Appellant is entitled to
new post-trial processing when the convening authority took action in reliance
on conflicting statements from his staff judge advocate (SJA) regarding Appel-
lant’s clemency submission. We find no prejudicial error and affirm.*
I. BACKGROUND
Upon the completion of Appellant’s court-martial, the SJA prepared a rec-
ommendation advising the convening authority on what action could be taken
on Appellant’s sentence. Following receipt of the SJA’s recommendation
(SJAR), Appellant submitted a two-page request for clemency, along with a
copy of the 2017 Military Pay Chart, to the SJA with the understanding that
his request would be forwarded to the convening authority in accordance with
Rule for Courts-Martial (R.C.M.) 1105. Appellant’s only request was that the
convening authority commute his reduction in rank from E-1 to E-2. The SJA
then prepared an addendum to the SJAR, which included the following lan-
guage relevant to this appeal:
1. Pursuant to Article 60, UCMJ, [Appellant] has submitted the
attached matters (Atchs 2 and 3) for your consideration prior to
taking final action in this case. Rule for Courts-Martial
1107(b)(3)(A)(iii) provides that you must consider these matters
before taking final action in this case. . . .
2. The defense did not submit matters. I have reviewed the at-
tached clemency matters submitted by the accused. The earlier
recommendation remains unchanged.
* Though not raised by Appellant, we also considered the convening authority’s failure
to articulate the reasons for his denial of Appellant’s request for deferment of reduction
in grade and automatic forfeiture of pay. See Rule for Courts-Martial 1101(c)(3). Find-
ing no “credible evidence that [the] convening authority denied [the deferment request]
for an unlawful or improper reason,” Appellant is not entitled to relief. United States
v. Zimmer, 56 M.J. 869, 874 (A. Ct. Crim. App. 2002).
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United States v. Gault, No. ACM 39368
(Emphasis added.)
The addendum listed five attachments, including Appellant’s two-page
clemency submission, identified as Attachment 2, and the 2017 Military Pay
Chart, identified as Attachment 3. On 30 October 2017, the convening author-
ity signed the first indorsement to the SJAR addendum, which stated, “I have
considered the attachments before taking action on this case.”
II. DISCUSSION
“Proper completion of post-trial processing is a question of law, which this
court reviews de novo.” United States v. LeBlanc, 74 M.J. 650, 660 (A.F. Ct.
Crim. App. 2015) (en banc) (citing United States v. Sheffield, 60 M.J. 591, 593
(A.F. Ct. Crim. App. 2004)). To prevail in a post-trial processing claim, an ap-
pellant must establish that there was error and that the error resulted in prej-
udice. United States v. Blodgett, 20 M.J. 756, 758 (A.F.C.M.R. 1985). “There
must be a colorable showing of possible prejudice in terms of how the omission
potentially affected an appellant’s opportunity for clemency.” United States v.
Scalo, 60 M.J. 435, 437 (C.A.A.F. 2005).
Appellant asserts that he was prejudiced by the conflicting statements in
the addendum to the SJAR. More specifically, Appellant claims that,
“[a]lthough the SJAR addendum accurately stated the defense had submitted
clemency matters and appears to have attached these matters for the conven-
ing authority’s review, it also plainly (and mistakenly) states that the defense
did not submit these same matters.” Appellant argues that the requisite color-
able showing of possible prejudice exists in the “real possibility that the con-
vening authority disregarded or paid less attention to the attached matters
after reading his SJA’s statement that ‘[t]he defense did not submit [clemency]
matters.’” (Alterations in original). We disagree.
There is no dispute that the statement “the defense did not submit matters”
was incorrect. But the existence of this error
does not result in an automatic return by the appellate court of
the case to the convening authority. Instead, an appellate court
may determine if the accused has been prejudiced by testing
whether the alleged error has any merit and would have led to a
favorable recommendation by the SJA or corrective action by the
convening authority.
United States v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996) (citations omitted). Here,
the record makes clear that both the SJA and the convening authority were
well aware of Appellant’s submissions and considered them prior to fulfilling
their respective responsibilities under R.C.M. 1106 and 1107. Notwithstanding
the erroneous statement that the Defense had not submitted matters, the SJA
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United States v. Gault, No. ACM 39368
made clear that he had reviewed the attached clemency matters and that his
recommendation remained unchanged. Thus, absence of the error would not
have led to a favorable recommendation. Similarly, the convening authority
stated that he considered Appellant’s submission before taking action in the
case. Thus, absence of the error would not have led to corrective action by the
convening authority.
Viewed in its entirety, the SJAR addendum and its attachments suffi-
ciently informed the convening authority that Appellant had submitted mat-
ters requesting clemency and that the convening authority was required to
consider those matters before taking action in the case. We find that the incor-
rect statement that “the defense did not submit matters” did not prejudice Ap-
pellant and thus warrants no relief.
III. 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. Arti-
cles 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
CAROL K. JOYCE
Clerk of the Court
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