Filed: Nov. 21, 2017
Latest Update: Mar. 03, 2020
Summary: United States v. Kerwin, 46 M.J. Shortly after trial, Appellant requested deferment of the automatic, forfeitures, adjudged forfeitures, and reduction in rank.3 Appellate defense counsel identifies the maximum punishment error in the SJAR but, asserts Appellant suffered no colorable prejudice.
U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32469
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UNITED STATES
Appellee
v.
Morgan C. HILL
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 21 November 2017
________________________
Military Judge: Michael D. Schag.
Approved sentence: Bad-conduct discharge, confinement for 75 days, and
reduction to E-1. Sentence adjudged 23 March 2017 by SpCM convened
at McConnell Air Force Base, Kansas.
For Appellant: Captain Patrick A. Clary, USAF.
For Appellee: Major Mary Ellen Payne, USAF.
Before DREW, MAYBERRY, and DENNIS, Appellate Military Judges.
Senior Judge MAYBERRY delivered the opinion of the court, in which
Chief Judge DREW and Judge DENNIS joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
MAYBERRY, Senior Judge:
A special court-martial composed of a military judge sitting alone found
Appellant guilty, in accordance with his pleas, of one specification of divers
wrongful use of methamphetamine in violation of Article 112a, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 912a. Appellant was sentenced to a
bad-conduct discharge, confinement for six months, forfeiture of $900.00 pay
United States v. Hill, No. ACM S32469
for six months, and reduction to the grade of E-1. 1 The convening authority
deferred the adjudged and automatic forfeitures of pay until action in accord-
ance with Articles 57a and 58b, UCMJ, 10 U.S.C. §§ 857a, 858b, and approved
only so much of the sentence as provided for a bad-conduct discharge, confine-
ment for 75 days, and reduction to the grade of E-1.
This case was submitted to us on its merits with no assignments of error.
However, we address an issue not raised by the parties involving errors during
post-trial processing. We remand for new post-trial processing.
I. BACKGROUND
Appellant was addicted to methamphetamine. After his spouse committed
suicide, likely drug related, Appellant provided a urine sample that came back
positive for methamphetamine. Shortly after providing the sample, but before
the results were known, he attempted suicide. After a brief hospitalization,
Appellant was released. Within two weeks, he attempted suicide again. During
his second hospitalization, the positive drug test was received. Appellant con-
fessed to methamphetamine use. He remained hospitalized for detoxification
treatment and the charge was preferred prior to his release. Within days of
being released, he used methamphetamine again and contacted his unit for
help. He was placed in pretrial confinement until his trial ten days later.
In accordance with his pretrial agreement, Appellant pleaded guilty to di-
vers use of methamphetamine over a four month period. During his Care 2 in-
quiry, he indicated a civilian neighbor introduced him to the drug and he ad-
mitted he regularly used methamphetamine with that civilian as well as with
another civilian. Initially, the civilians provided the drugs for free, but eventu-
ally Appellant purchased the drug in small amounts from his civilian friends.
Appellant stated that he did not use marijuana with his spouse because he was
afraid it would be detected and his drug buddies told him methamphetamine
stayed in the system only a short time. There were no material errors associ-
ated with the plea, findings, or adjudged sentence. Post-trial processing in-
cluded a series of errors, culminating in erroneous advice to the convening au-
thority, ambiguous action by the convening authority, and an erroneous court-
martial order (CMO).
1 A pretrial agreement between Appellant and the convening authority provided the
latter would approve no confinement in excess of 75 days, but included no other limi-
tations on the sentence he could approve.
2 United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
2
United States v. Hill, No. ACM S32469
II. DISCUSSION
The 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) (citing United States v. Sheffield,
60 M.J. 591, 593 (A.F. Ct.
Crim. App. 2004)). “Absent defense waiver or forfeiture . . . , erroneous advice
on substantial matters of fact or law will invalidate the action when the error
prejudices the accused.” United States v. Kerwin,
46 M.J. 588, 590 (A.F. Ct.
Crim. App. 1996). To establish prejudice due to errors impacting an appellant’s
request for clemency from the convening authority, the appellant must make
some “colorable showing of possible prejudice.”
LeBlanc, 74 M.J. at 660 (quot-
ing United States v. Scalo,
60 M.J. 435, 437 (C.A.A.F. 2005)). “The low thresh-
old for material prejudice with respect to an erroneous post-trial recommenda-
tion reflects the convening authority’s vast power in granting clemency and is
designed to avoid undue speculation as to how certain information might im-
pact the convening authority’s exercise of such broad discretion.”
Scalo, 60 M.J.
at 437.
A. Documented Errors
The military judge’s announced sentence included “forfeiture of $900 for six
months.” Shortly after trial, Appellant requested deferment of the automatic
forfeitures, adjudged forfeitures, and reduction in rank. Appellant’s counsel er-
roneously listed the adjudged forfeitures as “2/3 forfeitures for 90 days.” The
convening authority deferred the automatic and adjudged forfeitures, but not
the reduction in rank.
The report of result of trial (RRT) mistakenly includes adjudged “forfeitures
of $1066.00 pay per month for six months” and was later “corrected” to read
“forfeitures of $900.00 pay per month for six months.” Additionally, the at-
tached personal data sheet (PDS) mistakenly lists Appellant as being married
with one dependent. The PDS offered at trial correctly lists Appellant as being
a widow[er] with no dependents.
The staff judge advocate’s recommendation (SJAR) repeats the erroneous
adjudged forfeitures and recommends the forfeitures of “$900 per month for six
months” be approved. The SJAR also misstates the maximum punishment as
confinement for five years versus the statutory cap of one year at a special
court-martial. 3
3 Appellate defense counsel identifies the maximum punishment error in the SJAR but
asserts Appellant suffered no colorable prejudice. We agree with appellate defense
counsel’s prejudice assessment as to the singular error regarding the maximum pun-
ishment.
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United States v. Hill, No. ACM S32469
Appellant’s clemency submission also repeats the erroneous adjudged for-
feitures of “2/3 forfeitures for 90 days” asserted in the deferment request. The
clemency submission does not address any of the RRT, PDS, or SJAR errors. It
requests mitigation of the confinement to restriction to allow Appellant to
serve the time in an in-patient care facility and disapproval of the reduction in
rank and the automatic forfeitures.
The SJAR Addendum changes course and states “my recommendation has
changed” and goes on to recommend disapproval of the adjudged and automatic
forfeitures.
The CMO, not surprisingly, misstates the adjudged forfeitures as $900.00
pay per month for six months. The action taken by the convening authority,
and reflected in the CMO, disapproves the adjudged forfeitures.
B. Analysis
The convening authority had the authority to disapprove, commute, or sus-
pend, in whole or in part, Appellant’s term of confinement (not limited to
simply complying with the terms of the PTA limiting the duration to 75 days),
his reduction in rank, and his adjudged forfeitures. See Article 60(c)(4)(A),
UCMJ, 10 U.S.C. § 860(c)(4)(A). Automatic forfeitures cannot be disapproved
and can only be waived if there are dependents to receive the waived amount.
See Article 58b(b), UCMJ, 10 U.S.C. § 858b(b).
Appellant’s trial defense counsel incorrectly requested the convening au-
thority disapprove the automatic forfeitures. The SJA compounded that error
by recommending that the convening authority in fact disapprove the auto-
matic forfeitures, in addition to the misstated amount of adjudged forfeitures.
The difference is significant: the misstated amount of $900.00 per month for
six months would have totaled $6,400.00 instead of the actual adjudged
amount of $900.00, which would have only been $150.00 per month for six
months.
The totality of the evidence before us is that the convening authority did
not know the exact amount of the forfeitures imposed on Appellant or the true
nature of the authority he had to reduce those forfeitures. Based on the lan-
guage of the action disapproving the adjudged forfeitures, there is evidence
that the convening authority intended to grant relief. What we don’t know is
whether the full extent of his intended relief—clemency— was effectuated by
the language of his action. Based on the fact that the SJA’s advice to the con-
vening authority was facially wrong, and the action the convening authority
signed was drafted by that same SJA, it is reasonable to conclude that the con-
vening authority presumed he was, in fact, disapproving all forfeitures. More
aptly, it would be unreasonable to expect the convening authority inde-
4
United States v. Hill, No. ACM S32469
pendently deciphered what all of the lawyers trained in the nuances of the ap-
plication of adjudged and automatic forfeitures either did not understand or
could not precisely articulate. Thus, the record establishes a colorable showing
of possible prejudice and merits relief.
III. CONCLUSION
The convening authority’s action, dated 10 May 2017, is SET ASIDE. The
record of trial is returned to The Judge Advocate General for new post-trial
processing consistent with this opinion. Article 66(e), UCMJ, 10 U.S.C. §
866(e). Thereafter, the record of trial will be returned to this court for comple-
tion of appellate review under Article 66, UCMJ, 10 U.S.C. § 866.
FOR THE COURT
KATHLEEN M. POTTER
Acting Clerk of the Court
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