United States v. Scalo

59 M.J. 646, 2003 WL 22964558

• Court: Army Court of Criminal Appeals
• Decided: December 18, 2003
• Docket: ARMY 20020624
• Status: Published

Opinions

OPINION OF THE COURT

CHAPMAN, Senior Judge:

A military judge sitting as a general court-martial convicted appellant, in accordance with his pleas, of wrongful use of marijuana (four specifications), wrongful possession of marijuana (three specifications), and forgery (two specifications), in violation of Articles 112a and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 912a and 923 [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for fourteen months, and forfeiture of all pay and allowances. The convening authority approved the adjudged sentence, but pursuant to a pretrial agreement, suspended confinement in excess of twelve months for twelve months. The ease is before this court for review pursuant to Article 66, UCMJ, 10 U.S.C. § 866.

Appellant asserts no assignment of error and submits the ease to this court on its merits. Appellant comments in a footnote, however, that the staff judge advocate’s (SJA) post-trial recommendation (SJAR) failed to advise the convening authority of the correct nature and duration of appellant’s pretrial restraint. We decline to grant relief because appellant’s failure to comment on the error in his Rule for Courts-Martial [hereinafter R.C.M.] 1105 submission or to assign as an error to this court waives any claim of error. See R.C.M. 1106(f)(4).

FACTUAL BACKGROUND

The SJAR erroneously advised the convening authority that there had been no pretrial restraint imposed upon appellant.¹ In fact, appellant had been restricted to the limits of Fort Stewart, Georgia, for forty-four days until his court-martial. Information regarding appellant’s restriction is contained in a stipulation of fact and was admitted at trial without objection.² (R. at Prosecution Exhibit (PE) 1).

Imposition of appellant’s restraint was a direct consequence of his alleged absence without leave (AWOL) committed prior to referral of charges.³ Although appellant could not go beyond the confínes of Fort Stewart, there was no other restraint on his liberty. He was free to go anywhere on the installation without an escort; he had no sign-in requirements; nor was he prohibited from wearing civilian clothes while off duty.

SJAR REQUIREMENTS-PRETRIAL RESTRAINT

Article 60(d), UCMJ, 10 U.S.C. § 860(d), and R.C.M. 1106(a) require the SJA to prepare and provide to the convening authority a written recommendation before the convening authority takes action in a general court-martial or a special court-martial that includes a sentence to a bad-conduct discharge or confinement for one year. The SJA shall use the record of trial to prepare the recommendation (R.C.M. 1106(d)(1)), and include, inter alia, “[a] statement of the nature and duration of any pretrial restraint” (R.C.M. 1106(d)(3)(D)). Rule for Courts-Martial 304 defines pretrial restraint as “moral or physical restraint on a person’s liberty ... [and] may consist of conditions on liberty, restriction in lieu of arrest, arrest, or confinement.” ⁴

WAIVER

Trial defense counsel failed to object to the absence of information in the SJAR regarding the nature and duration of appellant’s pretrial restraint. See R.C.M. 1106(f)(4); R.C.M. 502(d)(6) discussion (E)(v) (defense counsel’s post-trial duty to examine the SJAR and note any errors or omissions). Rule for Courts-Martial 1106(f)(6) “provides that defense counsel’s failure to comment on any matter in the post-trial recommendation in a timely manner waives any later claim of error, unless it rises to the level of plain error.” United States v. Kho, 54 M.J. 63, 65 (C.A.A.F.2000); see United States v. Wellington, 58 M.J. 420, 427 (C.A.A.F.2003). Thus, because appellant’s trial defense counsel failed to comment on the SJAR error, this court must test for “plain error.” See Wellington, 58 M.J. at 427.

THE “PLAIN ERROR” DOCTRINE

This court’s application of the “plain error” doctrine to SJAR errors begins with Article 59(a), UCMJ, 10 U.S.C. § 859(a). A service Court of Criminal Appeals may not set aside a finding or sentence or a portion thereof based upon a legal error unless the error “materially prejudices the substantial rights of the accused.” UCMJ art. 59(a). Rule for Courts-Martial 1106(f)(6) states that, unless objected to by the defense, any error in the SJAR is waived absent “plain error.” Error amounts to “plain error” when the eiror is plain and obvious, and when the error materially prejudices a substantial right of an appellant. See Wellington, 58 M.J. at 427; Kho, 54 M.J. at 65 (citing United States v. Finster, 51 M.J. 185, 187 (C.A.A.F.1999) and United States v. Powell, 49 M.J. 460, 463, 465 (C.A.A.F.1998)). Ordinarily, appellant has the burden of establishing these prerequisites for “plain error.” Kho, 54 M.J. at 65; United States v. Wilson, 54 M.J. 57, 59 (C.A.A.F.2000). But in the present case, appellant’s defense counsel does not assert as error on appeal the incorrect SJAR, and, of course, does not allege prejudice as a consequence of the SJAR error.

Appellant’s silence does not preclude this court, however, from addressing prejudicial error on its own motion. Finster, 51 M.J. at 188 (citing UCMJ art. 66(c)). Article 66, UCMJ, constrains this court’s authority to affirm “only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” See United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F.2002). Thus, we must undertake an independent review to determine if the SJAR error is “plain error” that materially prejudices appellant’s substantial rights.

To determine if a SJAR error, not raised on appeal, amounts to “plain error,” this court applies the analytical framework found in Powell and its progeny: (1) whether there is an error; (2) whether the error is plain or obvious; and (3) whether the error materially prejudices a substantial right of appellant. Powell, 49 M.J. at 463-65; see also Wilson, 54 M.J. at 59; Kho, 54 M.J. at 65; Finster, 51 M.J. at 187. Thus, when a reviewing service Court of Criminal Appeals identifies a SJAR error as “plain error,” it has, by definition, met the Article 59(a), UCMJ, standard for granting corrective relief. Compare Powell, 49 M.J. at 465 (holding that the Navy-Marine Corps Court of Criminal Appeals erred by solely applying the United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), “plain error” standard, and failing to include the higher Article 59(a), UCMJ, threshold) with United States v. Southwick, 53 M.J. 412, 414 (C.A.A.F.2000) (holding that a “clear” error did not amount to “plain error” because a substantial right was not “materially prejudiced”). Applying this framework to the facts of this case, we find no “plain error.”

APPLICATION OF THE “PLAIN ERROR” DOCTRINE

There is no question that the government erred when the S JA failed to advise the convening authority of the nature and duration of appellant’s pretrial restraint. This error is plain and obvious, thus meeting the first two prongs of Powell. All pretrial restraint should have been included in the SJAR. R.C.M. 1106(d)(3)(D). Additionally, all parties at trial were aware of appellant’s pretrial restraint, as evidenced by a stipulation of fact that specifically referred to the nature and duration of that restraint.

Although the error is plain and obvious, it fails to meet the third prong of our analytical model. Given the entire record in this case, and the nature and extent of the restraint, the error did not materially prejudice a substantial right of appellant.

This court should not presume “material prejudice” unless the error “had an unfair prejudicial impact on the [action taken].” United States v. Fisher, 21 M.J. 327, 328 (C.M.A.1986) (quoting United States v. Young, 470 U.S. 1, 16 n. 14, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). The SJA’s failure to include in the SJAR the rather de minimus restraint imposed upon appellant did not materially prejudice appellant’s opportunity to obtain clemency from the convening authority. Appellant’s restraint was authorized under R.C.M. 304 and imposed upon appellant for a legitimate, nonpunitive, governmental purpose — to ensure appellant’s presence for trial in light of his prior AWOL status before referral of charges. Although appellant could not leave Fort Stewart, there was no further restraint on his liberty. He was free to go anywhere on the installation without an escort; he had no sign-in requirements; nor was he prohibited from wearing civilian clothes while off duty. Pulling appellant’s pass privileges was both reasonable and appropriate given that he was a possible flight risk and due to the nature of his crimes (forgery; wrongful use and possession of marijuana on multiple occasions).

We are satisfied, under the facts of this ease, that an accurate description in the SJAR of appellant’s restriction would not have affected the sentence as approved by the convening authority. This court should adhere to the cautionary advice of our superi- or court to use the “plain error” doctrine “sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” Fisher, 21 M.J. at 328-29 (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). Given the entire record in this case, there is no basis for concluding that the error “seriously affect[ed] the fairness, integrity or public reputation of [these] judicial proceedings.” Id. at 328 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)). Whatever effect, if any, knowledge of appellant’s restriction could have had on the convening authority’s action, its absence certainly does not undermine the fundamental fairness of the judicial process or contribute to a miscarriage of justice.

Therefore, although the SJAR failed to advise the convening authority of the nature and duration of appellant’s pretrial restraint, we hold that the error does not amount to “plain error.” The error did not materially prejudice a substantial right of appellant. Thus, appellant’s failure to comment on the error in his R.C.M. 1105 submission, and in his appeal to this court, waives any claim of error.

A WHEELUS⁵ ANALYSIS

Our brothers concurring in the result would have us utilize the test enunciated in Wheelus to determine if this SJAR error warrants relief. For the reasons given below, we decline to take such an approach and conclude that a Wheelus analysis does not apply to the facts of this case.

In Wheelus, our superior court set forth a different process for appellate review of SJAR errors that are raised for the first time at the appellate level. “First, an appellant must allege the error at the Court of Criminal Appeals.” Id. at 288. This means that if appellant or trial defense counsel failed to address the alleged error pursuant to R.C.M. 1106(f)(4), either appellate defense counsel must assign the alleged SJAR deficiency as an error in a brief to this court, or appellant must personally bring the deficiency to the attention of this court pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982). “Second, an appellant must allege prejudice as a result of the error.” Wheelus, 49 M.J. at 288. Essentially, appellant must describe how the alleged omission or misstatement or other SJAR error (uncorrected before action) detrimentally impacted appellant. “Third, an appellant must show what he would do to resolve the error if given such an opportunity.” Id. Appellant must request specific relief, such as a new review and action, or another form of relief within this court’s broad authority to modify the findings and/or sentence in accordance with Article 66(c), UCMJ. If appellant meets this Wheelus “threshold,” he only needs to make a “colorable showing of possible prejudice” to require a Court of Criminal Appeals to either provide “meaningful relief” or return the case for a new review and action. Id. at 289.

Because appellant failed to allege the SJAR error to this court, the Wheelus “threshold” for appellate relief has not been satisfied. Had appellant satisfied the Wheelus “threshold” for relief and made at least “some colorable showing of possible prejudice” as a consequence of the SJAR error, the Article 59(a), UCMJ, standard of material prejudice to a substantial right would be satisfied. As such, this court would grant meaningful relief.⁶ Appellant and his detailed counsel at trial and on appeal, however, have elected not to object or claim error, and thus allege prejudice, as a result of the SJAR’s misstatement of the pretrial restraint. Thus, the Wheelus analysis does not apply to the case at bar.

CONCLUSION

After careful consideration of the entire record, including those matters personally raised by appellant pursuant to Grostefon, 12 M.J. 431, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact.

Accordingly, the findings of guilty and the sentence are affirmed.

Chief Judge CAREY, Senior Judge MERCK, Judge BARTO, Judge MOORE, and Judge SCHENCK concur. Judge JOHNSON took no part in the decision of this case.

1 . Block 8 of the charge sheet, DD Form 458, also recorded no pretrial restraint.

2 . The military judge read the stipulation of fact during the providence inquiry and, thus, was aware of the restraint as a mitigating circumstance when he adjudged appellant’s sentence.

3 . Appellant left his unit "without pass or leave on or about 19 March 2002” and "returned to military control on or about 20 April 2002.” (R. at PE 1).

4 . The failure to correctly note the pretrial restraint in the SJAR is an all-too-common error. It is clear from many of the records we review that there is a fundamental misunderstanding by some SJAs and counsel that R.C.M. 1106(d)(3)(D) requires the SJA to include in his or her recommendation concise information as to the nature and duration of any pretrial restraint. Rule for Courts-Martial 1106(d)(3)(D) does not mandate reporting only restraint that awards an appellant pretrial confinement credit and/or restraint that might rise to the level of requiring a confinement credit analysis. Rather, the rule requires inclusion of all "moral or physical restraint on a person's liberty” imposed before and during disposition of charges.

5 . United States v. Wheelus, 49 M.J. 283 (C.A.A.F.1998).

6 . If appellant had raised the issue on appeal, but failed to satisfy the “colorable showing of possible prejudice" threshold, our superior court says that we should articulate the reasons why there is no prejudice and affirm. Wheelus, 49 M.J. at 289.