United States v. Jensen
ACM 38669 (reh)
| A.F.C.C.A. | Mar 23, 2017Background
- Appellant was convicted at a first trial (May 2014) under Article 120b and Article 134; sentence included a bad-conduct discharge, six months confinement, forfeitures, reduction to E‑1. This court affirmed Charge I but set aside Charge II and the sentence and authorized a rehearing.
- At a rehearing (Feb 2016) appellant pled guilty under a PTA to Charge II offenses; the military judge sentenced appellant for both the prior Article 120b conviction and the new Article 134 conviction; approved sentence again included a bad-conduct discharge, six months confinement (deferred because already served), and reduction to E‑1.
- Appellant did not timely object on appeal to post‑trial paperwork defects, but the court specified an issue about errors in the RRT, SJAR, SJAR addendum, and PDS concerning omitted/erroneous information.
- Deficiencies included: erroneous maximum punishment stated in SJAR, failure to note PTA terms, omission of confinement served and confinement-credit basis, and failure to advise convening authority of Article 63/R.C.M. 810(d) limits on what sentence could be approved after a prior adjudged sentence.
- The Government submitted affidavits from the convening authority and SJA asserting the convening authority knew the lawful limits and would have acted the same; the court found insufficient colorable showing of prejudice but ordered a new action and new promulgating order (CMO) because of SJAR/CMO defects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether errors/omissions in SJAR, addendum, RRT, CMO (erroneous max punishment; omission of PTA terms, confinement served, and Article 63/R.C.M. 810(d) advice) constitute plain error depriving appellant of meaningful clemency | Omissions and erroneous maximum punishment were plain error and materially prejudiced clemency, warranting new post‑trial processing | Only the erroneous max punishment and omission of sentencing limitation were possible errors and they did not prejudice appellant; convening authority knew limits and would not have changed action | Court found errors were plain and obvious but appellant failed to show colorable prejudice; approved findings and sentence affirmed, but court ordered a new Convening Authority action and a corrected CMO |
Key Cases Cited
- United States v. LeBlanc, 74 M.J. 650 (A.F. Ct. Crim. App.) (standard of review for post‑trial processing issues)
- United States v. Sheffield, 60 M.J. 591 (A.F. Ct. Crim. App.) (post‑trial processing review principles)
- United States v. Scalo, 60 M.J. 435 (C.A.A.F.) (plain‑error test for SJAR omissions)
- United States v. Kho, 54 M.J. 63 (C.A.A.F.) (plain‑error standard and low threshold for showing possible prejudice)
- United States v. Wheelus, 49 M.J. 283 (C.A.A.F.) (prejudice standard: "some colorable showing of possible prejudice")