Filed: Jun. 21, 2017
Latest Update: Mar. 03, 2020
Summary: I. BACKGROUND, The staff judge advocates recommendation (SJAR) advised the convening, authority: You do not have the authority to disapprove, commute or suspend, in whole or in part the confinement or the punitive discharge and recom-, mended the sentence be approved as adjudged.
U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32409
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UNITED STATES
Appellee
v.
Jailen R. HOLT
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 21 June 2017
________________________
Military Judge: Mark W. Milam.
Approved sentence: Bad-conduct discharge, confinement for 4 months,
and reduction to E-1. Sentence adjudged 4 May 2016 by SpCM convened
at Schriever Air Force Base, Colorado.
For Appellant: Captain Kevin R. Cayton, USAF; Captain Patricia En-
carnación-Miranda, USAF.
For Appellee: Major Tyler B. Musselman, USAF; Major Mary Ellen
Payne, USAF; Gerald R. Bruce, Esquire; James W. Beckwith (civilian
intern). 1
Before MAYBERRY, HARDING, AND C. BROWN, Appellate Military
Judges.
Judge HARDING delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge 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This is an unpublished opinion and, as such, does not serve as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.
1Mr. Beckwith was a law student extern with the Air Force Legal Operations Agency,
and was at all times supervised by attorneys admitted to practice before this court.
United States v. Holt, No. ACM S32409
_____________________
HARDING, Judge:
A military judge sitting alone as a special court-martial convicted Appel-
lant, consistent with his pleas, of two specifications of wrongful use of mariju-
ana, two specifications of wrongful possession of marijuana, and two specifica-
tions of wrongful introduction of marijuana onto an armed forces installation,
all in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 912a. Appellant was sentenced to a bad-conduct discharge, four
months of confinement, and reduction to the grade of E-1. The convening au-
thority approved the sentence as adjudged.
This case was initially submitted for our review on its merits; however, af-
ter reviewing the record of trial, the court specified the following issue:
WHETHER THE STAFF JUDGE ADVOCATE FAILED TO
PROVIDE ACCURATE AND PROPER ADVICE TO THE CON-
VENING AUTHORITY REGARDING THE CONVENING AU-
THORITY’S CLEMENCY POWERS UNDER ARTICLE 60,
UCMJ, 10 U.S.C. §860, WHEN SHE ADVISED THE CONVEN-
ING AUTHORITY THAT SHE DID NOT HAVE THE AUTHOR-
ITY TO DISAPPROVE, COMMUTE, OR SUSPEND IN WHOLE
OR PART THE CONFINEMENT WHEN FOUR MONTHS OF
CONFINEMENT WAS ADJUDGED. IF SO, WHETHER SUCH
FAILURE MATERIALLY PREJUDICED APPELLANT.
As we find no error substantially prejudices a substantial right of Appel-
lant, we now affirm.
I. BACKGROUND
The staff judge advocate’s recommendation (SJAR) advised the convening
authority: “You do not have the authority to disapprove, commute or suspend
in whole or in part the confinement or the punitive discharge” and recom-
mended the sentence be approved as adjudged. In his clemency submission,
Appellant’s trial defense counsel disagreed with the SJAR advice concerning
the convening authority’s options regarding the sentence to confinement. Con-
trary to the SJAR, the trial defense counsel stated “that the statue [sic] specif-
ically authorizes you to grant clemency with respect to the confinement in this
case because the adjudged confinement did not exceed six months.” Appellant
requested “limited relief in the form of reducing his confinement to time
2
United States v. Holt, No. ACM S32409
served.” 2 The addendum to the SJAR did not expressly address Appellant’s al-
legation of error in the SJAR. Instead, the addendum noted “the defense al-
lege[d] no legal error” and, having reviewed the matters submitted by Appel-
lant, that the “earlier recommendation remain[ed] unchanged.”
II. DISCUSSION
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).
The National Defense Authorization Act for Fiscal Year 2014 modified Ar-
ticle 60, UCMJ, limiting the convening authority’s ability to grant clemency,
in whole or in part. Pub. L. No. 113-66, § 1702, 127 Stat. 955–58 (2013). The
effective date of the change was 24 June 2014. Id. at 958. As Appellant was
charged with offenses that occurred after 24 June 2014, those changes apply
in his case. The pertinent text of Article 60 now reads, “[T]he convening au-
thority or another person authorized to act under this section may not disap-
prove, commute, or suspend in whole or in part an adjudged sentence of con-
finement for more than six months or a sentence of dismissal, dishonorable
discharge, or bad conduct discharge.” Article 60(c)(4)(A), UCMJ, 10 U.S.C. §
860(c)(4)(A), (24 June 2014).
The SJAR was correct in that the convening authority could not disapprove,
commute, or suspend in whole or in part the punitive discharge. 3 However, as
Appellant’s adjudged sentence to confinement was for four months, the Gov-
ernment on appeal readily concedes—and we agree—that the SJA erred in ad-
vising the convening authority that she could not provide clemency relief in the
form of favorable action on Appellant’s sentence to confinement. Regarding
confinement, the clemency limitation of Article 60(c)(4)(A), UCMJ, applies to
adjudged sentences of confinement for more than six months. As the adjudged
confinement was four months, the convening authority had plenary authority
as to the confinement element of Appellant’s sentence.
2Appellant’s sentence was adjudged on 4 May 2016 and action was taken by the con-
vening authority on 29 June 2016. Effectively, Appellant’s request for time served was
that his sentence to four months confinement be nearly reduced by half.
3 While Article 60 provides two exceptions to this general prohibition, see Article
60(c)(4)(B) and (C), 10 U.S.C. § 860(c)(4)(B), (C), neither applies here.
3
United States v. Holt, No. ACM S32409
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
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). Having reviewed the record in this case,
we find Appellant has not met his burden of establishing prejudice.
The SJA submitted an affidavit conceding the advice given to the convening
authority was incorrect. However, the SJA asserted that even with the conven-
ing authority’s broader discretion, she still would have recommended the con-
vening authority approve the sentence to confinement as adjudged. More im-
portantly, the convening authority also submitted an affidavit noting that she
would not have provided Appellant with relief on the sentence to confinement
even with the knowledge now that she had the authority to do so during clem-
ency. 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 observe that
had the error in the SJAR raised by the trial defense counsel been carefully
considered and addressed in the addendum to the SJAR vice an apparent strict
adherence to a template, it is more likely than not that the erroneous advice in
the SJAR would have been corrected prior to action by the convening authority.
While the post-trial processing time of this case is laudable, 4 “[g]reater atten-
tion to detail will eliminate unnecessary errors as found in this case and better
facilitate accurate post-trial processing.” United States v. Demiller, No. ACM
S32344, 2017 CCA LEXIS 154, at *6 (A.F. Ct. Crim. App. 16 Feb. 2017) (unpub.
op.).
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).
4 Action was taken 56 days after the announcement of sentence, well within the 120-
day standard. United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006).
4
United States v. Holt, No. ACM S32409
Accordingly, the findings and the sentence are AFFIRMED.
FOR THE COURT
MICAH L. SMITH
Deputy Clerk of the Court
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