United States v. Franklin
ACM S32339
| A.F.C.C.A. | Feb 3, 2017Background
- Appellant (Air Force) pleaded guilty to wrongful use of marijuana, wrongful distribution of hydrocodone, and solicitation to possess hydrocodone; sentenced to a bad-conduct discharge, 75 days confinement (reduced to 70 by convening authority), forfeitures, and reduction to E-1 per a pretrial agreement.
- After trial, the SJA prepared the SJAR but failed to prepare the customary addendum notifying the convening authority that defense clemency submissions were attached.
- Appellant argued the missing SJAR addendum meant there is no record that the convening authority considered his clemency submissions, requiring new post-trial processing and action.
- The Government produced sworn declarations from the SJA and the convening authority stating the convening authority received, reviewed, and considered the appellant’s clemency matters despite the missing addendum.
- The Air Force Court reviewed whether the lack of an addendum prejudiced the appellant or otherwise required returning the case for new post-trial action.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether failure to prepare an SJAR addendum deprived appellant of the statutory right to have clemency matters considered | Missing addendum means no evidence the convening authority considered clemency; requires new post-trial processing | Declarations show the convening authority received and considered the matters; addendum omission was harmless | Court held the declarations satisfy the requirement; no new post-trial processing required |
| Whether the absence of an addendum creates presumptive invalidity of action | Argues addendum is required to create record of consideration and reliance on presumption of regularity | Government says Craig/Godreau allow proof by other means (e.g., affidavits or initials) that matters were considered | Court held that Godreau/Craig permit alternative proof; affidavits here suffice to show consideration |
| Whether the SJA error caused material prejudice to substantial rights | Argues procedural error deprived appellant of protections and review | Government argues no prejudice because convening authority actually reviewed submissions | Court found no material prejudice and denied relief |
| Whether appellate court must return case for corrective action rather than decide on the merits | Appellant requests case be returned to convening authority for fresh action | Government relies on R.C.M. 1106(d)(6) and affidavits to let appellate court correct without remand | Court affirmed it could address the error and affirmed findings and sentence |
Key Cases Cited
- Craig v. United States, 28 M.J. 321 (C.M.A. 1989) (accused has statutory right to submit matters and convening authority must consider them)
- Godreau v. United States, 31 M.J. 809 (A.F.C.M.R. 1990) (when no SJAR addendum, convening authority initials/items or affidavit can show consideration)
- Foy v. United States, 30 M.J. 664 (A.F.C.M.R. 1990) (addendum triggers presumption of regularity if it informs convening authority of attached matters)
- Sheffield v. United States, 60 M.J. 591 (A.F. Ct. Crim. App. 2004) (standard of review for post-trial processing issues is de novo)
- Kho v. United States, 54 M.J. 63 (C.A.A.F. 2000) (cited for review standard in post-trial processing)