IN THE CASE OF
UNITED
STATES, Appellee
v.
Jonathan
G. SCALO, Private (E-1)
No.
04-0250
Crim. App.
No. 20020624
Argued
Decided
EFFRON,
J., delivered the opinion of the Court, in which GIERKE, C.J., BAKER,
and
ERDMANN, JJ., joined. CRAWFORD, J.,
filed a separate opinion concurring in the result.
Counsel
For Appellant:
Major
Sean S. Park (argued); Colonel Mark Cremin, Colonel
Robert D. Teetsel,
Lieutenant Colonel Mark Tellitocci and Captain Kathleen D.
Schmidt
(on brief).
For Appellee: Captain
Military Judge:
Jeffrey
D. Smith
This
opinion is subject to editorial correction before final publication.
Judge
EFFRON delivered the opinion of the Court.
At
a general court-martial composed of a military judge sitting alone,
Appellant
was convicted, pursuant to 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 (UCMJ), 10 U.S.C. §§ 912a and 923. He was sentenced to a bad-conduct discharge,
confinement for fourteen months, and forfeiture of all pay and
allowances. The convening authority
approved these
results and suspended confinement in excess of twelve months for twelve
months
pursuant to a pretrial agreement. The
United States Army Court of Criminal Appeals affirmed.
United States v. Scalo,
59 M.J. 646 (A. Ct. Crim. App. 2003) (en banc).
On
Appellant’s petition, we granted review of the following issue:
WHETHER THE UNITED STATES ARMY COURT
OF CRIMINAL APPEALS ERRED BY HOLDING THAT THE STAFF JUDGE ADVOCATE’S
FAILURE TO
ADVISE THE CONVENING AUTHORITY OF THE NATURE AND DURATION OF
APPELLANT’S
PRETRIAL RESTRAINT DID NOT CONSTITUTE PREJUDICIAL ERROR.
Because Appellant
failed to make a colorable showing of possible prejudice from the error
in the
post-trial recommendation, we affirm the decision of the Army Court of
Criminal
Appeals.
I.
BACKGROUND
As
we observed in United States v.
Finster, 51 M.J. 185, 186 (C.A.A.F. 1999):
One
of the distinguishing features of the
military justice system is the broad authority of the commander who
convened a
court-martial to modify the findings and sentence adjudged at trial. Although frequently exercised as a clemency
power, the commander has unfettered discretion to modify the findings
and
sentence for any reason -- without having to state a reason -- so long
as there
is no increase in severity.
See also
United States v. Davis, 58 M.J. 100, 102 (C.A.A.F. 2003)(describing the convening authority as the
accused’s best
hope for clemency). When a sentence
includes a punitive discharge or confinement for one year or more, the
convening authority must receive a written recommendation from his or
her staff
judge advocate (SJA) before taking action on the case. Article 60(d),
UCMJ, 10
U.S.C. § 860(d); Rule for Courts-Martial (R.C.M.) 1106(a).
The President has issued detailed guidance as
to the material that must be set forth in the SJA’s recommendation,
including
“[a] statement of the nature and duration of any pretrial restraint.” R.C.M. 1106(d)(3)(D).
The
SJA’s recommendation plays a vital role
in providing the
convening authority with complete and accurate advice in the exercise of command discretion.
See Finster, 51
M.J. at 187. Accurate advice is
particularly important in light of the fact that the convening
authority is not
required to review the record of trial personally before taking action. See
In
the present case, the SJA reported to the convening authority that
Appellant
had not been subject to any pretrial restraint.
The parties agree that the SJA erred,
overlooking the fact that Appellant had been restricted to the confines
of
II.
DISCUSSION
If
defense counsel does not make a timely
comment on an omission in the SJA’s recommendation, the error is waived
unless
it is prejudicial under a plain error analysis.
R.C.M. 1106(f);
The
granted issue in the present appeal involves the third prong of the
plain error
test -- an appellant’s burden to establish that the error materially
prejudiced
a substantial right. To meet this burden
in the context of a post-trial recommendation error, whether that error
is
preserved or is otherwise considered under the plain error doctrine, an
appellant must make “some colorable showing of possible prejudice.” Kho, 54 M.J. at 65 (citing United
States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)).
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.
See, e.g., Wheelus, 49 M.J.
at 289.
The
threshold is low, but there must be some colorable showing of possible
prejudice. See Kho, 54 M.J. at 65. In
the
context of a convening authority’s exercise of post-trial discretion,
the
omission of pretrial restraint information is not inherently
prejudicial. There must be a colorable
showing of possible
prejudice in terms of how the omission potentially affected an
appellant’s
opportunity for clemency.
Appellant
argues that we should find a colorable showing of possible prejudice by
looking
at his loss of liberty in conjunction with the clemency matters
submitted to
the convening authority and his compliance with a pretrial agreement. According to Appellant, he was a strong
candidate for clemency, and knowledge of his pretrial restraint could
have been
the additional factor that would have persuaded the convening authority
to
grant clemency. Appellant further
maintains that if the pretrial restraint information had been included
in the
SJA’s recommendation, the convening authority could have noticed that
Appellant
served his pretrial restraint without disciplinary problems, which
could have
made the convening authority more likely to grant clemency.
Appellant’s
argument does not reveal any connection between the time he spent in
pretrial
restraint and his clemency request. The
petition for clemency that Appellant submitted to the convening
authority
highlighted Appellant’s cooperation with authorities, acceptance of
responsibility, and desire to witness the birth of his child. Appellant did not directly or indirectly
refer to the pretrial restraint or suggest that the convening authority
should
take it into account in considering clemency.
Moreover, the 44-day period of pretrial restraint was not of
such
unusual duration that there is a reasonable likelihood that the length
alone --
without any mention by Appellant -- would have attracted the convening
authority’s attention for purposes of clemency.
Under these circumstances, Appellant has not made a colorable
showing of
possible prejudice.
Accordingly,
the decision of the United
States Army Court of Criminal Appeals is affirmed.
CRAWFORD, Judge
(concurring in the result):
I
concur in the result for the reasons set
forth in United States v. Kho, 54 M.J. 63, 65-66 (C.A.A.F. 2000)(Crawford, C. J. (concurring in the result)).