United States v. Private E2 JORDAN T. GILLIAM

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before CONN, HOFFMAN, and GIFFORD Appellate Military Judges UNITED STATES, Appellee v. Private E2 JORDAN T. GILLIAM United States Army, Appellant ARMY 20100007 Headquarters, Fort Stewart Tara A. Osborn, Military Judge Lieutenant Colonel Shane E. Bartee, Staff Judge Advocate For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Peter Kageleiry, Jr., JA; Captain Kathleena R. Scarpato, JA (on brief). For Appellee: Major Christopher B. Burgess, JA; Captain Stephen Latino, JA; Major Kirsten M. Dowdy, JA (on brief). 23 December 2010 --------------------------------- SUMMARY DISPOSITION --------------------------------- Per Curiam: A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of two specifications of absence without leave (AWOL) and larceny, in violation of Articles 86 and 121, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 886 and 921. The military judge sentenced appellant to a bad conduct discharge, confinement for twelve months, and reduction to Private E-1. The convening authority limited confinement to eleven months and otherwise approved the adjudged sentence. We agree with appellant that a new staff judge advocate's post-trial recommendation (SJAR) and a new convening authority initial action are warranted because of errors in the SJAR and its addendum. FACTS In Charge I, appellant was originally charged under Article 85, UCMJ with two specifications of desertion terminated by apprehension, for periods of approximately 30 months and 2 months respectively. Appellant entered into a pretrial agreement by which he agreed to plead guilty to the lesser-included offense of AWOL for each specification under Article 86. Appellant agreed to a stipulation in support of his pretrial agreement reflecting each instance of AWOL was terminated by apprehension. However, in discussing Specification 1 of Charge I, the military judge found appellant improvident to a plea including termination by apprehension. Ultimately, the military judge found appellant guilty of AWOL for Specification 1 of Charge I and AWOL terminated by apprehension for Specification 2 of Charge I. The trial counsel prepared a result of trial correctly reflecting these findings. In preparing the original SJAR, dated 1 July 2010, the acting SJA did not include the result of trial as an enclosure as required by the Rule for Court-Martial [hereinafter R.C.M.] 1106(d)(3).[1] Instead the acting SJA summarized the findings in an arguably ambiguous manner.[2] On 15 September 2010 the SJA prepared a “corrected” SJAR, which likewise failed to include a copy of the result of trial required by R.C.M. 1106(d)(3). It stated, “Due to previous errors in the memorandum dated 1 July 2010, I resubmit herewith my recommendations as required by Article 60(d), UCMJ and R.C.M. 1106 . . . to accurately reflect the record of trial.” This 15 September SJAR contained clear error. In essence it inverted the findings for Charge I, erroneously reflecting appellant had been found guilty of AWOL terminated by apprehension in Specification 1 and AWOL (without apprehension) in Specification 2. Additionally, neither version of the SJAR nor the addendum advised the convening authority he was required to consider matters outlined in R.C.M. 1107(b)(3)(A)(i) through (iii).[3] The record reflects appellant’s trial defense counsel was served with both the original and “corrected” SJAR; he made no objection and suggested no corrections to either. The SJA prepared an addendum to the SJAR, dated 28 September 2010. The addendum did state, “All matters submitted by defense counsel or the accused are enclosed for your consideration before taking action.” (emphasis added.) The addendum listed as enclosures: 1. SJARs, dtd 15 Sep 10; 1 Jul 10 2. Clemency Petition 3. Result of Trial 4. Action[4] The convening authority signed an acknowledgment, included in the addendum, which stated, “I personally considered the Staff Judge Advocate’s PostTrial Recommendation and enclosures before taking action in this case.” The promulgating order prepared following the convening authority’s action repeated the erroneous findings regarding Charge I and its specifications as stated in the 15 September SJAR. ANALYSIS The SJAR is an essential document because it assists the convening authority in deciding what action to take on sentence. United States v. Alexander, 63 M.J. 269, 273 (C.A.A.F. 2006). Where, as here, the convening authority does not expressly address the findings in his action, he implicitly approves the finding as summarized in the SJAR. United States v. Lindsey, 56 M.J. 850, 851 (Army Ct. Crim. App. 2002) (citing United States v. Diaz, 40 M.J. 335, 337 (C.M.A. 1994). To the extent the SJAR is mistaken, the action taken on that basis is a nullity. Id. Failure to comment on SJAR error constitutes waiver, in the absence of plain error. Alexander, 63 M.J. at 273 (citing R.C.M. 1106(f)(6)). To succeed under the plain error standard, appellant must show (1) error; (2) which is obvious; and (3) materially prejudices a substantial right. United States v. Mullins, 69 M.J. 113, 116 (C.A.A.F. 2010). In post-trial matters, we are to grant relief when there is a “colorable showing of possible prejudice.” United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (citing United States v. Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)). In this case, the convening authority’s action approving a finding of AWOL terminated by apprehension in Specification 1 of Charge I is inaccurate and without legal effect. Diaz, 40 M.J. at 337 . Likewise, Specification 2 of Charge II is a nullity insofar as it purports to approve anything greater than AWOL, notwithstanding appellant’s pleas and the military judge’s findings of guilty to AWOL terminated by apprehension. Id. These errors in the convening authority’s action flow from repeated attempts to summarize the offenses in the SJAR rather than relying on the result of trial, mandated by R.C.M. 1106(d)(3) since August 2008. We also find error in the SJARs and addendum by the repeated failure to properly and specifically advise the convening authority of the requirement to consider the matters listed in R.C.M. 1107(b)(3)(A), including—but not limited to—the result of trial. The SJAR and addendum in this case provide us with no confidence the convening authority was either accurately or properly advised on, or that he intended, the action he took with regard to findings or sentence in appellant’s case. It is also apparent the convening authority relied on his SJA’s advice, because he approved waiver of forfeitures for the benefit of appellant’s family and reduced appellant’s confinement by thirty days to ameliorate potential prejudice due to post-trial delay, both as recommended by his SJA. Given these facts, we find appellant has made the requisite colorable showing of possible prejudice. The convening authority’s initial action, dated 28 September 2010, is set aside. The record of trial is returned to The Judge Advocate General for a new SJAR and 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 ----------------------- [1] See 2008 Amendments to the Manual for Courts-Martial, United States, 73 Fed. Reg. 145 , 43831 (Jul. 28, 2008). [2] In a table summarizing the offenses, the acting SJA listed both appellant’s pleas and findings for the charged specification of Desertion under Article 85 as “NG” and used footnotes to annotate appellant pled guilty and was found guilty of AWOL in violation of Article 86. These footnotes accurately reflected the military judge’s findings of Guilty of AWOL for Specification 1, Charge I and Guilty of AWOL terminated by apprehension for Specification 2, Charge I. [3] This rule states, “Before taking action, the convening authority shall consider” the result of trial; the SJAR prepared under R.C.M. 1106; and any matters submitted by the accused under R.C.M. 1105 or, if applicable, 1106(f). (emphasis added.) [4] These enclosures were not attached to the addendum in the record of trial, but copies of the documents were found in other parts of the record.