This opinion is subject to administrative correction before final disposition.




                                Before
                   GASTON, STEWART, and GERRITY
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                        Deshaun J. ALLEN
                    Airman Recruit (E-1), U.S. Navy
                             Appellant

                             No. 201900180

                           Decided: 10 July 2020

    Appeal from the United States Navy-Marine Corps Trial Judiciary

                             Military Judges:
                       Ann K. Minami (arraignment)
                         Warren A. Record (trial)

 Sentence adjudged 28 February 2019 by a special court-martial con-
 vened at Naval Base Kitsap, Bremerton, Washington, consisting of a
 military judge sitting alone. Sentence approved by the convening
 authority: confinement for 149 days and a bad-conduct discharge.

                          For Appellant:
         Lieutenant Commander Erin L. Alexander, JAGC, USN

                               For Appellee:
                            Brian K. Keller, Esq.

 Judge GERRITY delivered the opinion of the Court, in which Senior
 Judge GASTON and Judge STEWART joined.
                 United States v. Allen, NMCCA No. 201900180
                              Opinion of the Court

                            _________________________

         This opinion does not serve as binding precedent, but
          may be cited as persuasive authority under NMCCA
                   Rule of Appellate Procedure 30.2.

                            _________________________

GERRITY, Judge:
    “We have written often to urge convening authorities and their staff judge
advocates [SJAs] to pay scrupulous attention to detail throughout the post-
trial process. This case compels us to reiterate that urging yet again.” 1
Unfortunately, this is not a new problem in the military justice system.
Citing 35 cases with erroneous Staff Judge Advocate Recommendations
[SJARs] in a 15-month period, our sister court stated in United States v.
Lindsey, almost 20 years ago:
       This case presents the court with yet another incident in which
       an SJA has failed to provide complete and accurate information
       to the convening authority, as required by RCM 1106. The reg-
       ularity of these post-trial processing errors is alarming and oc-
       curs in many jurisdictions. Most SJAR errors are the direct re-
       sult of sloppiness and a lack of attention to detail. . . . Likewise,
       diligent trial defense counsel should identify and correct such
       errors whenever possible. These errors reflect poorly on our



   1  United States v. Allison, No. 201800251, 2020 CCA LEXIS 111, at *3-4 (N-M Ct.
Crim. App. Apr. 8, 2020) (unpub. op.) (also reminding practitioners that “[a]ppellate
courts are not in the business of drafting post-trial documents for convening
authorities.”); see also United States v. Stromer, No. 201800320, 2020 CCA LEXIS
183, at *2 (N-M. Ct. Crim. App. May 29, 2020) (unpub. op.) (“Once again this Court is
forced to address repeated errors in post-trial processing, due to a lack of attention,
care, and accountability, and a failure to read and follow post-trial processing rules
and court orders.”); United States v. Stromer, No. 201800320, 2019 CCA LEXIS 134,
at *5-6 (N-M. Ct. Crim. App. Mar. 26, 2019) (unpub. op.) (discussing “yet another
striking example of excessive reliance on templates, a lack of appreciation of the
importance of post-trial process in the military justice system, and a failure to pay
attention to detail”); United States v. Gary, No. 201800353, 2020 CCA LEXIS 172, *7-
8 (N-M. Ct. Crim. App. May 27, 2020) (unpub. op.); United States v. Franco, No.
202000042, 2020 CCA LEXIS 176, *4 (N-M. Ct. Crim. App. May 27, 2020) (unpub.
op.) (“We caution staff judge advocates and convening authorities that this error is
one that was easily avoidable. Just follow the rules, review the request and, if
applicable, articulate the basis for denial.”).


                                          2
               United States v. Allen, NMCCA No. 201900180
                            Opinion of the Court

       military justice system and on those individuals who imple-
       ment that system. They should not occur!

, 851 (A. Ct. Crim. App. 2002).

                              I. BACKGROUND

    In September 2018, Appellant: 1) came off restriction from non-judicial
punishment; 2) pleaded guilty in Bremerton Municipal Court of theft of under
$750 from a marijuana dispensary and assault in connection with the theft,
both incidents occurring on 9 July 2018; 3) conspired with other Sailors to use
cocaine aboard USS NIMITZ (CVN 68) [NIMITZ]; and 4) used and distribut-
ed cocaine aboard NIMITZ. In October 2018, he then used marijuana.
    Pursuant to a pretrial agreement with the convening authority, Appellant
pleaded guilty by various methods including by exceptions, and by exceptions
and substitutions. For Specification 3 of Charge II, which charged introduc-
tion and distribution of cocaine, Appellant pleaded guilty by excepting the
words “introduction and” and therefore, in accordance with the pretrial
agreement, pleaded guilty only to distribution. The military judge, however,
announced the finding to that specification as “Guilty,” and did not address
the excepted language. Defense counsel did not object and specifically stated
the belief that the findings announcement was correct.
    Appellant never raised this issue at trial, during post-trial processing, or
on appeal. Appellant did submit a timely clemency request asserting other
legal errors after receiving the SJAR but did not raise the issue of the
erroneous finding by the military judge. The two allegations of legal error
raised in Appellant’s Rule for Courts-Martial [R.C.M.] 1105 submission were:
1) that the military judge had been the judge on his co-conspirator’s cases
and improperly used the evidence from those cases to sentence Appellant;
and 2) that the sentence was disproportionate to the actual harm caused by
Appellant’s misconduct. The relief requested was for the convening authority
to make a recommendation to this Court that the adjudged bad-conduct
discharge [BCD] be set aside.
    Notwithstanding the errors asserted in Appellant’s R.C.M. 1105 submis-
sion, the SJA neither identified nor addressed these legal errors in his
recommendation to the convening authority. As for the findings, the SJAR
referred to the Report of Results of Trial, which correctly stated the plea of
guilty by exceptions but erroneously stated the military judge’s finding for
Specification 3 of Charge II as guilty by exceptions, contrary to how the
military announced the finding at trial.




                                       3
                   United States v. Allen, NMCCA No. 201900180
                                Opinion of the Court

    The convening authority reviewed the matters submitted by Appellant
and approved the adjudged sentence without granting any relief. The Court-
Martial Order correctly included the actual pleas of Appellant, and it further
included the military judge’s finding of guilty for Specification 3 of Charge II
(without addressing the exception of the words “introduce and” in accordance
with Appellant’s plea).
   The case was submitted without assignment of error.

                                   II. DISCUSSION

   Before a convening authority acts on the results of trial, an accused has
the opportunity to “submit to the convening authority any matters that may
reasonably tend to affect the convening authority’s decision whether to
disapprove any findings of guilty or to approve the sentence.” 2
   Appellant requested the convening authority recommend to this Court
that the BCD be disapproved. Appellant also asserted two legal errors. In
United States v. Wheelus, our superior court stated that because “clemency is
a highly discretionary Executive function, there is material prejudice to the
substantial rights of an appellant if there is an error [in the convening
authority’s post-trial review] and the appellant ‘makes some colorable
showing of possible prejudice.’ ” 3

A. Post-Trial Legal Review
    Under R.C.M 1106(d)(4), the SJA “is not required to examine the record
for legal errors” in a first review of the record to complete the SJAR.
However:
         when the recommendation is prepared by a staff judge advo-
         cate, the staff judge advocate shall state whether, in the staff
         judge advocate’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 other-
         wise deemed appropriate by the staff judge advocate. The re-
         sponse may consist of a statement of agreement or disagree-
         ment with the matter raised by the accused. An analysis or ra-




   2   R.C.M. 1105(b)(1); see also Art. 60(b)(1), UCMJ, 10 U.S.C. § 860(b)(1) (2016).
   3 

, 289 (C.A.A.F. 1998) (citing United States v. Chatman, 

,
323-24 (C.A.A.F. 1997)).


                                            4
                  United States v. Allen, NMCCA No. 201900180
                               Opinion of the Court

         tionale for the staff judge advocate’s statement, if any, concern-
         ing legal errors is not required.
R.C.M. 1106(d)(4) (emphasis added).
    As the convening authority is not a lawyer and needs the advice of coun-
sel to make an intelligent decision concerning the legal errors raised, the SJA
must provide a response, even one that is not detailed, to any allegation of
error. 4 In United States v. Welker, although the SJA erred by not addressing
legal errors raised in the appellant’s post-trial submission, our superior court
determined that the underlying errors raised must be examined themselves
to determine if the SJA’s error resulted in a violation of the appellant’s
substantial rights. 5 If there is no merit to the underlying errors raised, there
will not be prejudicial error in the SJA’s failure to address them. 6
    Trial defense counsel raised two allegations of legal error in Appellant’s
R.C.M. 1105 submissions. First, the military judge improperly used evidence
in other cases to determine the sentence; and second, the sentence was
disproportionate to the harm Appellant caused and did not recognize
Appellant’s acceptance of responsibility. We address each allegation of error
in turn, find them to be without merit, and therefore find no prejudice in the
SJA’s erroneous failure to address them in the SJAR.

   1. Co-Conspirator Cases
    At the beginning of the court-martial, the military judge sua sponte
invited Appellant to question him about his involvement as the military
judge in Appellant’s co-conspirators’ cases. Appellant did so and did not
challenge the military judge. The military judge stated that he would
compartmentalize each case and would only use the evidence admitted before
him for Appellant’s case. During his providence inquiry, the military judge
mistakenly called Appellant by one of his co-conspirator’s names three times.
The military judge apologized to the Appellant for using the wrong name and
again reiterated he would only consider the evidence before him for Appel-
lant’s case. Again, Appellant raised no challenge to the military judge.
Appellant has raised no evidence or basis in his assertion of legal error that
the military judge considered improper evidence in sentencing Appellant.




   4   United States v Welker, 

, 88 (C.A.A.F. 1996)
   5

59(a), UCMJ, 10 USC § 859(a)).
   6 

(citing United States v. Pena, 

(C.M.A.
1986), cert. denied, 

(1987)).


                                            5
               United States v. Allen, NMCCA No. 201900180
                            Opinion of the Court

    The military judge sentenced Appellant only to time served (149 days)—
less than half the maximum period of confinement at a special court-martial,
and a month less than the six-month confinement limitation contained in
Appellant’s pretrial agreement—and a bad-conduct discharge. We find the
assertion that the military judge improperly considered evidence during
Appellant’s sentence to be without merit. Therefore, Appellant suffered no
prejudice from the SJA’s omission of this claim in his SJAR.

   2. Disproportionate Sentence
    Appellant’s second claim of legal error is that the military judge sen-
tenced him disproportionately to the harm caused by Appellant’s conduct,
and the sentence fails to acknowledge that Appellant took responsibility for
his actions. Appellant was convicted at a special court-martial and agreed in
the pretrial agreement that his sentence to confinement would be capped at
six months. All other punishments could be approved as adjudged. The
military judge sentenced Appellant to a term of confinement less than the
maximum under the pretrial agreement, and a bad-conduct discharge but did
not award any forfeitures or other lawful punishment.
    The crimes Appellant pled guilty to would have carried a maximum
punishment of 27 years’ confinement, a dishonorable discharge, and total
forfeitures, had Appellant’s case been tried by a general court-martial.
Appellant also committed drug related offenses aboard a nuclear aircraft
carrier, and during the same month: 1) his restriction from non-judicial
punishment ended; and 2) he was convicted in civilian court for theft and
assault. The next month he used marijuana.
    The SJA addressed the companion cases in the SJAR, and the convening
authority considered those companion cases in approving the sentence for
Appellant. Those three cases’ sentences were adjudged as: 1) confinement for
10 months, a bad-conduct discharge, and reduction to E-1; 2) confinement for
six months and a bad-conduct discharge; and 3) confinement for 85 days and
a bad-conduct discharge. Appellant’s adjudged sentence was the second
lowest of the companion cases, was lower than the maximum amount of
confinement under his pretrial agreement, and Appellant had a recent
civilian conviction and non-judicial punishment. Appellant accepted
responsibility and the military judge sentenced him to less than the
maximum agreed to by the Appellant and convening authority under the
pretrial agreement.




                                     6
                United States v. Allen, NMCCA No. 201900180
                             Opinion of the Court

    The Court has independently reviewed the sentence and finds it appro-
priate. 7 Appellant’s assertion of a disproportionate sentence is without merit.
Therefore, Appellant suffered no prejudice from the SJA’s failure to address
this legal error in the SJAR.

B. Incorrect Finding
    Although Appellant properly pled by exceptions to Specification 3 of
Charge II, the military judge did not properly announce the finding for that
Specification. The military judge announced the finding only as “Guilty,” and
did not address the excepted language. However, the impact of the erroneous
announcement in the findings did not change the maximum punishment,
which was the jurisdictional limit of the court.
   This issue should have been corrected with a post-trial session but was
apparently never noticed by anyone involved in the case. Multiple judge
advocates throughout the process all failed to pay attention with the level of
detail that our military justice system deserves. Although we find no material
prejudice to the Appellant’s substantial rights from this error, Appellant is
entitled to have court-martial records and findings of guilt correctly reflect
the content of his proceeding. 8 We take corrective action below.

                               III. CONCLUSION

   In accordance with Appellant’s pleas, we except the language “introduce
and” from the finding of Guilty as to Specification 3 of Charge II. The
excepted language is set aside and dismissed. The finding of Guilty as
excepted for Specification 3 of Charge II is affirmed. The supplemental Court-
Martial Order will accurately reflect this finding.
    The approved findings, as modified, and sentence are correct in law and
fact and no error materially prejudicial to Appellant’s substantial rights
occurred. Arts. 59, 66, UCMJ. The findings and sentence are AFFIRMED.
   Senior Judge GASTON and Judge STEWART concur.




   7  Art 66(c) UCMJ, 10 U.S.C. § 866(c) (2016); see United States v. Baier, 

, 384-85 (C.A.A.F. 2005).
   8 United States v. Crumpley, 

, 539 (N-M. Ct. Crim. App. 1998); United
States v. Pryor, 

, 825 (N-M Ct. Crim App 2003).


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United States v. Allen, NMCCA No. 201900180
             Opinion of the Court

               FOR THE COURT:




               RODGER A. DREW, JR.
               Clerk of Court




                    8