Appellant was found guilty of multiple drug crimes and was sentenced to a bad-conduct discharge, confinement for ten months, forfeiture of all pay and allowances, and reduction to the grade of E-1. On appeal, he noted “potential” post-trial errors, but did not specify what those were. Under Article 66, UCMJ review, the AFCCA identified three issues. (1) Whether the signed State of Trial Results (“STR”) and EoJ must be modified when the pleas and findings to both charges I and II were omitted; (2) whether prejudicial error exists when there is no documentation in the record of trial that the convening authority considered Appellant’s clemency matters; and (3) whether the record of trial is defective when the audio recordings of the court-martial sessions contain five additional audio files that are recordings of conversations in the courtroom when the court-martial was not in session.
In a Per Curiam opinion, the Court found that (1) the STR and EoJ did not need to be modified; (2) there was no prejudice to Appellant regarding clemency; and (3) the audio recordings made the record of trial defective and returned it for a certificate of correction.
1.The omissions on the STR and EoJ were immaterial
Appellant’s STR and EoJ failed to reflect his pleas and findings for Charge I and II. Since the Appellant pled guilty to both charges, this was a clear error. However, the Court found that omitting the pleas and findings was immaterial to determining Appellant’s criminality as long as they were accurate. Although the Court noted that these documents should be carefully prepared, omitting this information was not an issue.
Further, the AFCCA indicated that R.C.M 1111(c)(2) permits The Judge Advocate General (“TJAG”) and the court itself to correct minor errors on an EoJ when they are discovered on appeal. And after considering whether to fix the EoJ, the Court declined to do so.
2. Appellant was not prejudiced by the convening authority’s review of the clemency letters
After being sentenced, Appellant submitted undated clemency letters, which requested that the convening authority disapprove of the adjudged forfeitures. However, when the convening authority issued its decision, it did not indicate that it reviewed the letters and did not disapprove of the forfeiture.
In its analysis, the AFCCA emphasized that the letters were undated, so it was unclear whether they were received within the ten day time period provided by R.C.M. 1106(d)(1). Nevertheless, the Court reviewed whether the record of trial must show that the letters were considered.
The Court decided that (1) although the convening authority normally documents whether clemency matters were considered, it is not required; and (2) Appellant had the opportunity to file a post-trial motion about the clemency matters, but did not. Accordingly, the Court then had to determine whether he waived or forfeited the issue.
Using their authority under Article 66, UCMJ, the Court decided that forfeiture was the appropriate standard, and conducted a plain error analysis.Ultimately, it found that (1) even if the error were plain or obvious, he has not shown prejudice; and (2) his brief specifically stated that he suffered no prejudice from a post-trial processing error.
3. The audio recordings made the trial record defective
The certified record of trial included five additional recordings that were conversation in the courtroom while the court was not in session. Further, it sounded like the audio was from people who were unaware that they were being recorded. As a result, the Court found that it was an error to include these recordings on the disc placed in the original record of trial and ordered for it to be corrected.
The opinion was issued by Judges Mink, Lewis and D. Johnson.
However, the convening authority did reduce Appellant’s confinement by one month.
Appellant must show (1) there was an error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right.
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