UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                  Before
                 J.A. FISCHER, D.C. KING, B.T. PALMER
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        MICHAEL A. SAINE II
                 BUILDER FIRST CLASS (E-6), U.S. NAVY

                             NMCCA 201500082
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 30 October 2014.
Military Judge: CDR Robert P. Monahan, Jr., JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CDR S.J. Gawronski,
JAGC, USN.
For Appellant: Capt Michael Magee, USMC.
For Appellee: CDR James Carsten, JAGC, USN; Capt Cory
Carver, USMC.

                           31 December 2015

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM

     A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of one
specification of violating a lawful order, one specification of
sexual assault by bodily harm, and one specification of assault
consummated by a battery, in violation of Articles 92, 120, and
128, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 920,
and 928, respectively. The military judge sentenced the
appellant to three years of confinement, reduction to pay grade
E-3, and a bad-conduct discharge. Other than to defer and then
suspend automatic forfeitures for six months, a pretrial
agreement had no effect on the sentence. The convening
authority (CA) approved the sentence as adjudged and except for
the punitive discharge ordered it executed.
      The appellant raises four assignments of error (AOE):1
      (1) the appellant was denied due process when he was
      subject to a military prosecution following a civilian
      law enforcement investigation that did not result in a
      prosecution;
      (2) the findings and sentence should be set aside due
      to poor pretrial handling and investigation by law
      enforcement agents;
      (3) the appellant’s guilty pleas were not provident;
      and
      (4) the appellant’s sentence was too severe.
     Additionally, this court identified an issue concerning the
staff judge advocate’s (SJA) failure to comment on claims of
legal error the appellant raised in his clemency request.

     After careful consideration of the record of trial, the
appellant's assignments of error, the identified issue, and the
pleadings of the parties, we conclude that the findings and the
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.

                                 Background

     In August 2012, the appellant was engaged in sexual
intercourse with his wife, in their off-base residence, when she
told him to stop. The appellant admitted he understood she had
withdrawn her consent, yet he continued to engage in intercourse
until he ejaculated.

     On 25 November 2013, during an argument, the appellant
pushed his wife into a bathtub. The appellant testified that he

1
   The appellant raises all AOEs pursuant to United States v. Grostefon, 

(C.M.A. 1982).


                                      2
did so three to four minutes after she hit him in the head with
a can of shaving cream.2 The appellant agreed that he was not
acting in self-defense when he assaulted his wife.3

     On 5 December 2013, the appellant’s commanding officer (CO)
issued him a written military protective order to remain 200
feet away from his wife. On 15 January 2014, the CO renewed the
order and provided the appellant a signed copy. On 15 February
2014, the appellant intentionally violated the order by meeting
his wife and son at a local hotel.

                                   Analysis
I. Whether the appellant was denied due process and an
adequate criminal investigation (AOEs 1 and 2)

     The appellant’s first AOE asserts he was denied due process
when he was prosecuted by his command following an investigation
that was initially conducted by civilian authorities. His
second AOE argues the Naval Criminal Investigative Service was
biased against him and failed to fully investigate the case.
Given the related nature of these two AOEs, we combine and
examine them together. After doing so, we find both lack merit.
     Other than invoking the Fourteenth Amendment of the U.S.
Constitution,4 the appellant provides no case law, cites no
specific regulatory non-compliance by the Government, and offers
only vague arguments in support of AOEs 1 and 2.5 Moreover, the
appellant raises these claims for the first time on appeal.
     Claims of due process violations are questions of law that
we review de novo. United States v. Lewis, 

, 383
(C.A.A.F. 2011). In general, a plea of guilty waives non-
jurisdictional errors, which occurred prior to the entry of the
guilty plea. United States v. Bradley, 

, 281
(C.A.A.F. 2010); see also United States v. Lee, 

, 167
(C.A.A.F. 2014). The record before us indicates the appellant

2
   During sentencing, the appellant’s wife testified that she threw the can
after the appellant pushed her. Record at 643.
3
    

4
    U.S. CONST. amend. XIV, § 1.
5
   To support his AOEs, the appellant generally relies on his 7 May 2015
Request for Clemency, Parole, and Mandatory Supervised Release, which he
appends to his Brief. See Appellant’s Brief of 14 Jul 2015 at 4-5 and the
Appendix thereto.


                                      3
freely and unconditionally pleaded guilty and thereby forfeited
his right to appellate review of the nonjurisdictional issues he
now raises. Even if we assumed the appellant neither waived nor
forfeited these issues, our full review of his first two AOEs
indicate they are without merit. United States v. Clifton, 

, 81 (C.M.A. 1992).
II.       Whether the appellant’s pleas were provident (AOE 3)

     In his third AOE, the appellant argues his pleas were not
provident because he pleaded guilty under the “duress caused by
the stressful situation in which he was placed, including the
actions of [his wife] toward their son.”6 He also argues the
military protective order he was convicted of violating was not
lawful and that his violation of that order occurred under
“extraordinary circumstances.”7 With regard to the sexual
assault of his wife he now contends that he was in “mid-climax
and could not [stop his intercourse] quickly enough.”8 Regarding
his assault and battery of his wife, he now argues he was acting
in self-defense and in defense of his wife, fearing she was
attempting suicide.9 All the appellant’s arguments are directly
contradicted by the record and he offers no case law or legal
arguments to justify substituting his current assertions for his
previous in-court sworn testimony.
      “A military judge’s decision to accept a guilty plea is
reviewed for an abuse of discretion.” United States v.
Inabinette, 

, 322 (C.A.A.F. 2008) (citations and
internal quotation marks omitted). We will not disturb a guilty
plea unless the record of trial shows a substantial basis in law
or fact for questioning the guilty plea. 

the
acceptance of improvident pleas, the military judge is required
to develop the factual basis, on the record, that “the acts or
the omissions of the accused constitute the offense or offenses
to which he is pleading guilty.” United States v. Care, 

, 253 (C.M.A. 1969) (citations omitted); see also Art.
45, UCMJ. The appellant must admit every element of the offense
to which he pleads guilty. United States v. Aleman, 

, 283 (C.A.A.F. 2006); see also RULE FOR COURTS-MARTIAL 910(e),
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). If the military
judge fails to establish that there is an adequate basis in law

6
    Appellant’s Brief at 5.
7
    

4-5 of the Appendix thereto.
8
    

9
    

fact to support the appellant’s plea during the Care inquiry,
the plea will be improvident. 

; see
also R.C.M. 910(e). This court “must find ‘a substantial
conflict between the plea and the [appellant’s] statements or
other evidence’ in order to set aside a guilty plea. The ‘mere
possibility’ of a conflict is not sufficient.” United States v.
Watson, 

, 58 (C.A.A.F. 2012) (quoting United States v.
Garcia, 

, 498 (C.A.A.F. 1996)). “In determining on
appeal whether there is a substantial inconsistency, this Court
considers the ‘full context’ of the plea inquiry, including
Appellant’s stipulation of fact.” United States v. Goodman, 

, 399 (C.A.A.F. 2011) (citing United States v. Smauley,

, 452 (C.A.A.F. 1995)).
     The record does not support the appellant’s claim that he
pleaded guilty under stress-induced duress. We find the
military judge sought and obtained assurances from the appellant
that: he pleaded guilty voluntarily and that no one threatened
or forced him to plead guilty; no one threatened or forced him
to agree to the stipulation of fact; he entered into his
pretrial agreement “freely and voluntarily;” he understood he
could request to withdraw his guilty pleas at any time before
sentence was announced; no one attempted to coerce or force him
to give up his right to a trial; he agreed the defenses of self-
defense and duress did not apply in his case; he “freely and
voluntarily” agreed to all specially-negotiated terms in his
pretrial agreement and the addendum thereto in which he
specifically waived his motions; and, after being advised of all
terms and conditions in his pretrial agreement the appellant
still desired to plead guilty.10
     Furthermore, the military judge, sua sponte, began the
providence inquiry by examining whether the appellant’s
medication for anxiety and depression might render him mentally
incompetent to understand the nature of the proceedings or to
cooperate intelligently in his defense. The military judge
tested the appellant’s understanding of the court-martial
process; the roles of the judge, prosecutor, and defense
counsel; and his ability to communicate with and understand his
defense counsel. The appellant stated there were no adverse
effects from his medication. His trial defense counsel (TDC)
concurred with the military judge’s assessment of the
appellant’s competence.11 In circumstances, as here, where the

10
   Record at 528, 536, 569-85, 596, 601, 604, 607, 609, 620, 622, 624, 625,
628, 631, 632, 633, 634; Appellate Exhibit LIII.
11
     

                                      5
appellant’s in-court statements do not raise an apparent
inconsistency with his pleas, a “military judge may reasonably
rely on both a presumption that the accused is sane and the long
standing principle that counsel is presumed to be competent.”
United States v. Shaw, 

, 463 (C.A.A.F. 2007)
(citations omitted). We find the appellant’s responses to the
military judge’s questions established both his competence and
his ability to cooperate intelligently in his defense. We also
find the appellant was given multiple opportunities to voice any
concerns about duress or his stress levels, and on each occasion
he stated under oath, in the presence of his TDC, that his pleas
were voluntary.12
     The trial record contradicts the appellant’s claim that the
order he admitted to violating was unlawful. The record also
contradicts his assertion that he violated the order under the
“extraordinary circumstances” of fearing for his son’s safety.13
During the providence inquiry, the appellant admitted all the
elements of the offense and stated that the order was issued by
proper authority, that he was aware of and understood the order,
that the order was lawful, and that he freely made the decision
to violate the order. The appellant testified that no person or
anything forced him to violate the order, and that he had no
legal justification or excuse for doing so.14 Additionally,
prior to entering pleas, the appellant filed a motion
challenging the military protective order’s constitutionality.
The military judge, via three trial conferences15 later
memorialized on the record and during the providence inquiry,
ensured the appellant was fully aware and agreed his guilty

12
   We note the appellant’s acceptance of a pretrial agreement, which provided
significant tangible benefits to him, certainly appears to be a rational,
sound decision on his part. Not only did the pretrial agreement
substantially limit his exposure to confinement, but it also compelled the
Government to withdraw and dismiss a conspiracy charge, a second orders
violation specification, two rape specifications, six specifications of
assault consummated by a battery, a specification of child endangerment, a
specification of obstructing justice, and a specification of subornation of
perjury. Arts. 81, 92, 120, 128, and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 881, 892, 920, 928, and 934 respectively. See also AE LII at 6
and 7.
13
   The appellant now contends his wife had threatened his infant son with a
knife, that she allowed him to crawl “in a pile of pills,” and that she had
left him at a store without a coat in freezing weather. See Appellant’s
Brief at 4-5 and the Appendix thereto at 3-4.
14
     Record at 545-57.
15
     Conducted pursuant to R.C.M. 802.


                                         6
pleas would result in the waiver of all pretrial motions, which
included his motion challenging the lawfulness of the military
protective order.16 Even if we assume the issue was not waived,
we remain convinced, based on the entirety of the record, that
the military order the appellant admitted violating was in fact
lawful. 

.
     The trial record contradicts the appellant’s claim that he
was unable to halt sexual intercourse with his wife and that she
manufactured her lack of consent. During the providence inquiry
the appellant admitted he was engaged in sexual intercourse with
his wife, that she told him to stop, that he heard her and
understood she was no longer consenting, that he continued to
have intercourse with her knowing she no longer consented, that
he did not stop because he wanted to ejaculate, that his
unwanted sexual intercourse caused bodily harm to his wife and
was offensive to her, that no one forced or coerced him to have
sex without her consent, that he could have stopped if he wanted
to, and that he understood the reasonable mistake of fact
defense17 and both he and his TDC agreed it did not apply in his
case.18
     The trial record contradicts the appellant’s claim that
during his wife’s battery he was acting in self-defense and,
conversely, in defense of his wife who he now asserts was
attempting suicide. During the providence inquiry the appellant
admitted he assaulted his wife by pushing her with unlawful
force and violence so that she fell into a bathtub; that he did
so because he was angry with her; that at the time of the
assault she was not threatening him with force or violence; that
he understood the defense of self-defense19 (as correctly
explained by the military judge) and that he and his TDC agreed
it did not apply; that he had no legal justification or excuse
for pushing his wife; that no one forced or coerced him to do


16
   The appellant filed motions for release from pretrial confinement; to
sever charges; to suppress the appellant’s statements; to admit evidence
under MILITARY RULE OF EVIDENCE 412, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.); to compel funding for an independent investigator; to compel funding
for an expert; to dismiss certain charges as unconstitutional; and for an in-
camera review under MIL. R. EVID. 513. Record at 385-88, 395, 505-09, 625-31.
See also AE I, XVI, XVIII, XX, XXII, XXIV, XXVI, XXVIII, LII, and LIII.
17
     R.C.M. 916(j).
18
     Record at 558-69.
19
     R.C.M. 916(e)(3).


                                         7
so; and that he could have avoided doing so if he wanted.20
Further, the appellant admitted that his wife was not attempting
suicide when he pushed her; that she had no weapon or other
means to harm herself; that she was not threatening to harm
herself; that he did not believe by pushing her he was
attempting to save her from killing or harming herself; that he
understood the defense of duress21 (as correctly explained by the
military judge); and that he and his TDC agreed it did not apply
in his case.22
     Taken together, we find the record directly contradicts all
the claims raised in the appellant’s third AOE. Further, we
find the military judge carefully and deliberately developed the
factual basis for the appellant’s acts that comprised the
offenses for which he pleaded guilty. The military judge
correctly instructed the appellant on the elements, applicable
defenses, and relevant definitions associated with each offense.
The appellant acknowledged understanding the military judge’s
explanations and then admitted every element of each offense,
after explaining, in detail, in his own words, how he committed
each crime. Additionally, the appellant’s statements made
during the providence inquiry were consistent with a stipulation
of fact admitted without objection pursuant to the appellant’s
pre-trial agreement.23 Finding no substantial basis in law or
fact for questioning the appellant’s guilty pleas, we will not
disturb them. 

. We find the
appellant’s pleas were provident and that the military judge did
not abuse his discretion in accepting them.
III.    Whether the appellant’s sentence was too severe (AOE 4)

     In his final AOE, the appellant argues that his sentence
was inappropriately severe based on his character and record of
service. We disagree.

     This court reviews the appropriateness of a sentence de
novo. United States v. Lane, 

, 2 (C.A.A.F. 2006).
Sentence appropriateness involves the judicial function of
assuring that justice is done and that the accused gets the
punishment he deserves. United States v. Healy, 

,
395 (C.M.A. 1988); see also United States v. Baier, 

,

20
     Record at 569-80.
21
     R.C.M. 916(h).
22
     Record at 573-74, 581-85.
23
     See Prosecution Exhibit 1.
                                  8
383 (C.A.A.F 2005). Our review gives “‘individualized
consideration’ of the particular accused 'on the basis of the
nature and seriousness of the offense and the character of the
offender.’” United States v. Snelling, 

, 268 (C.M.A.
1982) (quoting United States v. Mamaluy, 

, 180-81
(C.M.A. 1959)).

     The record contains evidence in extenuation and mitigation
from the appellant, his ex-wife, his grandmother, his children,
a childhood friend, and a fellow petty officer. The record also
contains aggravation testimony concerning the appellant’s sexual
assault and later physical assault of his current wife. This
includes testimony of the humiliation and degradation his wife
experienced as a result of his sexual assault, the pain and fear
associated with his physical assault, and her anxiety,
depression, and loss of self-esteem created by his pattern of
abuse toward her.24

     After reviewing the record and pleadings, we find the
appellant’s adjudged and approved sentence is appropriate for
this offender and his offenses. 

;

. The facts that the adjudged sentence
included only three years’ confinement, two years less than the
negotiated protections in his pre-trial agreement, and 28 years
less than the potential maximum; that the appellant was not
awarded forfeitures; that the appellant was only reduced three
pay grades; and that the appellant was awarded a bad-conduct
discharge instead of a dishonorable discharge, reflect
substantial credit for the appellant’s evidence in extenuation
and mitigation. Weighing the gravity of the appellant’s
offenses against his character and service, we find his sentence
appropriate.

     Lastly, the appellant supports his brief with an appended
copy of his clemency and parole petition, wherein he, not
surprisingly, asks for clemency. Clemency, however, is not
within the authority of this court to grant, and we therefore
take no action on such request. See 

.

IV.    Whether the SJA’s recommendation was defective

     Although not raised by the parties, we note the appellant
raised legal error in post-trial submissions that were
subsequently not addressed in the SJA’s recommendation to the
CA. On 23 January 2015, the appellant’s TDC submitted a R.C.M.

24
     Record at 641-44, 650-53, 657-58, 660-61, 681, 690-91.
                                        9
1105 clemency request wherein he alleged the military judge
imposed disparate punishment upon him and cited as evidence
thereof two rape cases in which the offenders received lighter
sentences. Additionally, he asserted the military judge
improperly considered the appellant’s dismissed charges when
arriving at his sentence arguing the “military justice system
prohibits such [a] spillover effect.”25

     When a sentence includes a punitive discharge or
confinement for one year or more, a CA must receive a written
recommendation from his or her SJA before taking action on the
case. Art. 60(d), UCMJ; R.C.M. 1106(a). In that recommendation
the SJA must state “whether, in the [SJA’s] opinion, corrective
action on the findings or sentence should be taken when an
allegation of legal error is raised in matters submitted under
R.C.M. 1105 or when otherwise deemed appropriate by the [SJA].”
R.C.M. 1106(d)(4). Notwithstanding this requirement, the 3
February 2015 SJA’s recommendation and the 20 February 2014
SJA’s addendum recommendation, advised the CA that the defense
had not raised any allegations of legal error.26 On 24 February
2015, the TDC acknowledged receipt of the SJA’s recommendation,
and in a handwritten annotation stated: “The Defense has no
corrections, challenges, or comments to submit.”27

     “If defense counsel does not make a timely comment on an
error or omission in the SJA's recommendation, the error is
waived unless it is prejudicial under a plain error analysis.” 28
United States v. Capers, 

, 269 (C.A.A.F. 2005)
(citations and internal quotation marks omitted); R.C.M.
1106(f). To prevail under a plain error analysis, the appellant
must persuade this Court that: “(1) there was an error; (2) it
was plain or obvious; and (3) the error materially prejudiced a
substantial right.” United States v. Scalo, 

, 436

25
     SJA’s Recommendation of 3 Feb 2015, Enclosure 10 at 2.
26
     

and SJA’s Addendum Recommendation of 20 Feb 2015.
27
   TDC’s Acknowledgment of Receipt of the SJA Addendum Recommendation of 24
Feb 2015 at 1.
28
   Although the court in Capers characterized the defense’s failure to make a
timely comment as waiver, it is clear from their analysis they actually
treated it as a “forfeited” issue. 

. “Waiver is
different from forfeiture. Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the intentional relinquishment or
abandonment of a known right. . . . [i]f an appellant has forfeited a right
by failing to raise it at trial, we review for plain error.” United States
v. Gladue, 

, 313 (C.A.A.F. 2009) (citations and internal quotation
marks omitted).
                                       10
(C.A.A.F. 2005) (citation and internal quotation marks omitted).
The prejudice prong involves a relatively low threshold -- a
demonstration of “some colorable showing of possible prejudice.”

-70 (citations and internal quotation
marks omitted). Our review is de novo. 

70.

     We find the appellant did not timely comment on the
omissions in the SJA's recommendation, and thus apply a plain
error analysis. We first examine for error. Although not
actually using the words “legal error” in his R.C.M. 1105
clemency request, the appellant argued he was more severely
punished than similar offenders in the same judicial circuit and
claimed the military judge’s alleged “spillover” was prohibited.
As discussed infra, military appellate courts have extensively
examined both issues. Additionally, “spillover” arises so
frequently a standardized military judge instruction was crafted
to educate members on this concern.29 As such, the SJA should
have recognized both issues as warranting discussion in his
advice to the CA. We find this omission to be plain and obvious
error.

     We next assess for prejudice. To do so we examine the
issues raised in the appellant’s clemency request for error
occurring at trial. United States v. Welker, 

, 89
(C.A.A.F. 1996). We address the appellant’s disparate sentence
claim first.

     Sentence appropriateness is generally determined without
reference or comparison to sentences in other cases. United
States v. Ballard, 

, 283 (C.M.A. 1985). We are not
required to engage in a comparison of specific cases “‘except in
those rare instances in which sentence appropriateness can be
fairly determined only by reference to disparate sentences
adjudged in closely related cases.’” United States v. Lacy, 

, 288 (C.A.A.F. 1999) (quoting 

)
(additional citation omitted). “Closely related” cases “involve
offenses that are similar in both nature and seriousness or
which arise from a common scheme or design.” United States v.
Kelly, 

, 570 (N.M.C.M.R. 1994); see also 

(citing examples of closely related cases as
including co-actors in a common crime, service members involved
in a common or parallel scheme, or “some other direct nexus
between the servicemembers whose sentences are sought to be
compared.”) The appellant bears the burden of demonstrating

29
   Dep't of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook,
para. 7-17 (10 Sept. 2014) (citing Hogan, 

(C.M.A. 1985)).
                                     11
that any cited cases are “closely related” to his case and that
the sentences are “highly disparate.” 

the appellant failed to demonstrate, for the CA or
this court, that his two cited cases were closely related to his
own. Although characterized as rape cases tried in the same
circuit, the appellant did not provide the case names, the trial
dates, or even whether they were tried before the same military
judge who heard his case. Further, other than noting the
unidentified servicemembers in those cases received less severe
sentences, he provided no amplifying information on related
charges, or the age, grade, or service of the accused or
victims. Demonstrating the cases are closely related is a
“threshold requirement for the review of . . . sentence
comparison.” 

. The appellant did not meet
this threshold, thus we conclude we are neither required nor
even able to conduct a sentence comparison.

     We next turn to the appellant’s claim that the military
judge allowed information related to the dismissed charges to
“spillover” into his deliberations on sentence. Other than
highlighting extenuating matters relevant to the appellant’s
convictions and relying on his disparate sentencing 

, the appellant offers no evidence to support his claim the
military judge permitted “spillover” to occur. Accordingly, we
resolve the appellant’s claim by recognizing military judges are
presumed to know the law and follow it absent clear evidence to
the contrary, United States v. Erickson, 

, 225
(C.A.A.F. 2007). We find the appellant has provided no clear
evidence that the military judge failed to follow the law and
therefore find no error.

     Regarding both assertions of error raised in the
appellant’s R.C.M. 1105 matters, we find no actual error
occurred at trial, thus no colorable showing of possible
prejudice and no impact on the appellant’s substantial rights.

; 

. Because of the
absence of error or prejudice, we find that had the SJA
identified and addressed the raised legal error, it would not
have led to a favorable recommendation or corrective action by
the CA. We therefore decline to remand for a new recommendation
and action. United States v. Green, 

, 95 (C.A.A.F.
1996).




                               12
                      Conclusion

The findings and the sentence are affirmed.


                        For the Court



                        R.H. TROIDL
                        Clerk of Court




                          13