United States v. Specialist STEPHEN J.F. GRENFELL

• Court: Army Court of Criminal Appeals
• Decided: March 26, 2010
• Docket: ARMY 20080729
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before CONN, HOFFMAN, and GIFFORD Appellate Military Judges

UNITED STATES, Appellee v. Specialist STEPHEN J.F. GRENFELL United States Army, Appellant

ARMY 20080729

Headquarters, XVIII Airborne Corps and Fort Bragg Kirsten V.C. Brunson, Military Judge Colonel Gary A. Loxley, Staff Judge Advocate

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Grace Gallagher, JA; Lieutenant Colonel Scott R. Lawson, JA (on brief).

For Appellee: Colonel Norman F. J. Allen, III, JA; Lieutenant Colonel Martha L. Foss, JA; Lieutenant Colonel Francis C. Kiley, JA; Major Mary E. Braisted, JA (on brief).

26 March 2010

-------------------------------- SUMMARY DISPOSITION --------------------------------

Per Curiam:

Appellant alleges two errors related to the staff judge advocate's post-trial recommendation [hereinafter SJAR] to the convening authority.

Appellant asserts the SJAR erroneously advised the convening authority he had pled guilty to, and was found guilty of, Specification 2 of Charge I. Specification 2 of Charge I charged appellant with one specification of wrongful use of cocaine in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912 [hereinafter UCMJ]. The addendum to the SJAR did not correct this error.

Appellant pled not guilty to Specification 2 of Charge I and the government moved to dismiss the charge. The military judge, however, found appellant not guilty of the specification without expressly acting on the motion to dismiss. Important for this court's Article 66(c) review is the action taken by the convening authority. See United States v. Diaz, 40 M.J. 335, 337 (C.M.A. 1994); United States v. Alexander, 63 M.J. 269, 275 (C.A.AF. 2006). The SJAR reflects a finding of guilty for this charge. That is the finding acted upon by the convening authority and before this court for review. See Diaz, 40 M.J. at 337; Alexander, 63 M.J. at 275.

We reviewed this issue using a plain error analysis. To prevail under a plain error analysis, an appellant must demonstrate that there was an error; it was plain or obvious; and the error materially prejudiced a substantial right. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000) (citing United States v. Powell, 49 M.J. 460, 463, 465 (C.A.A.F. 1998)).

The statement in the SJAR that appellant was guilty of Specification 2 of Charge I was in error, plain, and obvious. See Diaz, 40 M.J. at 337, and Alexander, 63 M.J. at 275. Whether the error was prejudicial is discussed below.

Appellant next asserts, inter alia, the SJAR addendum erroneously stated he disclaimed punishment under Article 13, UCMJ, mischaracterized the circumstances by which he agreed to waive motions for appropriate relief for conduct he believed amounted to punishment under Article 13, UCMJ, and misstates the pretrial restraint. In a pretrial agreement, appellant agreed to waive submitting a motion for appropriate relief for conduct he believed amounted to illegal pretrial punishment under Article 13, UCMJ. Appellant avers, inter alia, the erroneous statements in the SJAR addendum's prejudiced his clemency opportunity with the convening authority by undermining the convening authority’s opportunity to meaningfully consider the factual circumstances attendant to the relinquished Article 13 motion.

We find the SJAR addendum's description of the circumstances attendant to appellant's waiver of a motion related to Article 13 in error. Clemency is distinct from sentencing and appellant remained free to raise with the convening authority in his post-trial clemency submission the circumstances attendant to the relinquished Article 13 motion. United States v. Healy, 26 M.J. 394, 395-396 (C.M.A. 1988). The importance of the SJAR being accurate is patent. Our superior court has emphasized the importance of a staff judge advocate's recommendation to the convening authority, particularly in light of the recognition that the convening authority is no longer required to personally read the record of trial. United States v. Wellington, 58 M.J. 420, 428 (C.A.A.F. 2003) (citations omitted). Our holding makes no finding regarding the underlying merit of appellant's relinquished claim for relief pursuant to Article 13.

The remaining issue is whether the errors materially prejudiced a substantial right. To meet this burden in the context of a post-trial recommendation error, an appellant must make "some colorable showing of possible prejudice." United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998); see also Kho, 54 M.J. at 65. "The low threshold for material prejudice with respect to an erroneous post-trial recommendation reflects the convening authority's vast power in granting clemency and is designed to avoid undue speculation as to how certain information might impact the convening authority's exercise of such broad discretion." United States v. Scalo, 60 M.J. 435, 437 (C.A.A.F. 2005).

We find the cumulative impact of the errors in the SJAR and its addendum is sufficient under Wheelus demonstrate a "colorable showing of possible prejudice." A new SJAR and action is an appropriate remedy in this case.

The convening authority’s initial action dated 21 October 2008 is set aside. The record of trial will be returned to The Judge Advocate General for a new SJAR and initial action by the same or a different convening authority in accordance with Article 60(c)-(e), UCMJ.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court