United States v. Holt
ACM S32409
| A.F.C.C.A. | Jun 21, 2017Background
- Appellant pled guilty at a special court-martial to multiple specifications involving wrongful use, possession, and introduction of marijuana; sentenced to a bad-conduct discharge, 4 months confinement, and reduction to E-1. Convening authority approved the sentence.
- The Staff Judge Advocate’s Recommendation (SJAR) told the convening authority she lacked authority to disapprove, commute, or suspend any part of the confinement or punitive discharge, recommending approval as adjudged.
- Trial defense counsel challenged the SJAR advice in clemency, arguing Article 60 authorized clemency as to confinement because adjudged confinement was only four months (less than six months).
- The SJAR addendum declined to address the asserted legal error and left the recommendation unchanged. Action was taken 56 days after sentence announcement.
- The court found the SJAR incorrect as to confinement: after the 2014 amendments to Article 60, the convening authority may not alter confinement sentences exceeding six months, but the convening authority retained plenary clemency authority for a four-month confinement.
- The SJA and convening authority submitted affidavits stating that, despite the error, they would not have granted relief for confinement; the court found appellant failed to show colorable prejudice and affirmed the findings and sentence.
Issues
| Issue | Appellant's Argument | Government/SJA Argument | Held |
|---|---|---|---|
| Whether SJAR misadvised convening authority about clemency power under Article 60 | SJ argued SJAR wrongly said convening authority lacked power to grant clemency on confinement; confinement was only 4 months so clemency was available | Government conceded SJAR was incorrect as to confinement; maintained punitive discharge advice was correct; SJA said she would have recommended no relief even if correct advice given | Court: SJAR erred re: confinement authority (4 months < 6 months) but error did not materially prejudice appellant; conviction and sentence affirmed |
| Whether appellant showed colorable showing of possible prejudice from SJAR error | Appellant claimed possible prejudice because convening authority was misinformed and could have reduced confinement to time served | Government/SJA affidavits stated convening authority would not have granted confinement relief even with correct advice | Court: No colorable showing of prejudice; appellant fails burden |
Key Cases Cited
- United States v. Kho, 54 M.J. 63 (C.A.A.F. 2000) (de novo review of post-trial processing errors)
- United States v. Sheffield, 60 M.J. 591 (A.F. Ct. Crim. App. 2004) (standard for reviewing post-trial errors)
- United States v. Scalo, 60 M.J. 435 (C.A.A.F. 2005) (appellant must make colorable showing of possible prejudice from post-trial error)
- United States v. Johnson, 26 M.J. 686 (A.C.M.R. 1988) (analysis whether convening authority plausibly may have taken more favorable action)
- United States v. Green, 44 M.J. 93 (C.A.A.F. 1996) (guidance on post-trial processing and prejudice analysis)
- United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) (timeliness standard for convening authority action)