United States v. Staff Sergeant TERRY v. TWEEDY

• Court: Army Court of Criminal Appeals
• Decided: February 28, 2011
• Docket: ARMY 20100563
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before CONN, HOFFMAN, and GIFFORD Appellate Military Judges

UNITED STATES, Appellee v. Staff Sergeant TERRY V. TWEEDY United States Army, Appellant

ARMY 20100563

8th Theater Sustainment Command Kwasi L. Hawks, Military Judge

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M. Jamison, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Brent A. Goodwin, JA (on brief).

For Appellee: Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA; Major Ellen S. Jennings, JA; Captain Bradley M. Endicott, JA (on brief).

28 February 2011

--------------------------------- SUMMARY DISPOSITION --------------------------------- Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specification of willfully disobeying a superior commissioned officer and two specifications of aggravated sexual abuse of a child, in violation of Articles 90 and 120, Uniform Code of Military Justice [hereinafter UCMJ], respectively (10 U.S.C. §§ 890 and 920). The military judge sentenced appellant to a bad- conduct discharge and confinement for four years. The convening authority approved the adjudged sentence.

On review to this court pursuant to Article 66(c), UCMJ, appellant submitted the case on its merits, citing no specific legal errors, along with an unsigned, typewritten document submitted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). In pertinent part, appellant's Grostefon matters alleged that his wife was told by a government representative to divorce appellant in order to receive compensation [unspecified]; she did so and never received the compensation; and that due to the divorce his wife [now-ex] was no longer eligible to receive money through the waiver of automatic forfeiture process.

After pronouncement of sentence, the military judge made a clemency recommendation by stating he recommended the convening authority waive the imposition of automatic forfeitures upon final action."[1] The record reflects in Appellate Exhibit VI—the Post-Trial and Appellate Rights Form completed by appellant with the advice of his attorney—appellant expressly acknowledged the right to request waiver of automatic forfeitures from the convening authority.

Neither the staff judge advocate’s recommendation (SJAR), nor any other post-trial document from the staff judge advocate (SJA) to the convening authority contained in the record of trial, apprise him of the military judge’s clemency recommendation. See Rule for Courts-Martial 1106(d)(3)(B) [hereinafter R.C.M.]. In responding to the SJAR, the trial defense counsel did not comment on the omission. In the absence of an objection, we review for plain error. R.C.M. 1106(f)(6). See United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000); see also United States v. Powell, 49 M.J. 460, 463, 465 (C.A.A.F. 1998).

We find the SJA's failure to apprise the convening authority of the military judge's clemency recommendation was error that was plain and obvious. Ultimately, however, we find that based on the evidence in the record, appellant has failed to satisfy the third prong of the plain error analysis. See United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (requiring an appellant demonstrate "some colorable showing of possible prejudice"); see also United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005); Kho, 54 M.J. at 65; Powell, 49 MJ at 463, 465. See also United States v. Capers, 62 M.J. 268, 269-270 (C.A.A.F. 2005). Specifically, the record reflects that appellant was present at trial when the military judge made his clemency recommendation. Appellant acknowledged his right to request waiver of automatic forfeitures via the Post-Trial and Appellate Rights Form. He had the opportunity, under R.C.M. 1106, to respond to the SJA's failure to identify the military judge's clemency recommendation. Additionally, he had the opportunity to submit clemency matters via R.C.M. 1105 and did so. At no time did appellant submit a request for waiver of automatic forfeitures for the benefit of his dependents or otherwise seek to leverage the clemency recommendation of the military judge. Although appellant cites to the harm to his dependents, the plain error analysis mandates we examine it through the monocle of analyzing the material prejudice to his substantial rights. See Scalo, 60 M.J. at 436-437 (citations omitted). Appellant has failed to satisfy that burden.

On consideration of the entire record, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accord-ingly, those findings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court ----------------------- [1] An accused is subject to automatic forfeitures if sentenced to more than six months of confinement. UCMJ, art. 58b(a). Under Article 58b(b), UCMJ, if an accused has dependents, a convening authority “may waive any or all of the [automatic] forfeitures of pay and allowances . . . for a period not to exceed six months,” and such money “shall be paid . . . to the dependents of the accused.” Id. See also R.C.M. 1101(d)(1).