United States v. Demiller
ACM S32344
| A.F.C.C.A. | Feb 16, 2017Background
- Appellant pleaded guilty pursuant to a pretrial agreement to dereliction of duty, DWI, wrongful use of marijuana on multiple occasions, and wrongful possession of marijuana (lesser included of wrongful introduction). The government declined to prove the greater introduction offense after acceptance of the plea.
- Military judge accepted appellant’s plea using exceptions and substitutions to convict of wrongful possession of marijuana.
- Sentenced to a bad-conduct discharge, 30 days confinement, forfeiture of $1,000 pay for one month, and reduction to E-1; convening authority approved the sentence.
- Appellant appealed arguing (1) the military judge erred by accepting the plea via exceptions and substitutions to a lesser included offense, and (2) the SJA gave erroneous post-trial advice that the convening authority lacked power to disapprove/commute/suspend confinement, requesting set aside of the confinement sentence.
- The court found the plea acceptance proper under Article 79/R.C.M. 910 principles and Nealy; it found the SJA erred about the convening authority’s clemency power but held appellant failed to show prejudice, so the conviction and sentence were affirmed.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether accepting a guilty plea to wrongful possession by exceptions and substitutions improperly changed the charged offense | Exceptions and substitutions cannot be used to substantially change the nature of the charged offense under R.C.M. 918 | Lesser included offenses are referred with the charge; Article 79 and R.C.M. procedures permit exceptions and substitutions to find guilt to a lesser included offense | Acceptance was proper; plea provident and permissible under Article 79 and Nealy |
| Whether erroneous SJA advice that convening authority could not alter confinement prejudiced appellant | Erroneous advice deprived convening authority of clemency options; appellant sought set aside of confinement | Even though the advice was incorrect, appellant must show colorable possible prejudice; appellant was released before convening authority action and sought only discharge relief; SJA and convening authority affidavits say they would not have reduced confinement | Error found but no plain or material prejudice shown; confinement sentence not set aside |
Key Cases Cited
- United States v. Nealy, 71 M.J. 73 (C.A.A.F.) (referral of lesser included offenses with charged offense)
- United States v. Kho, 54 M.J. 63 (C.A.A.F.) (standard for reviewing post-trial processing errors)
- United States v. Scalo, 60 M.J. 435 (C.A.A.F.) (need for colorable showing of possible prejudice from SJAR error)
- United States v. Sheffield, 60 M.J. 591 (A.F. Ct. Crim. App.) (post-trial processing review principles)
- United States v. Johnson, 26 M.J. 686 (A.C.M.R.) (convening authority may have taken more favorable action if provided accurate information)
- United States v. Green, 44 M.J. 93 (C.A.A.F.) (consideration of prejudice from post-trial errors)