This opinion is subject to administrative correction before final disposition.




                                Before
                  HITESMAN, GASTON, and STEWART
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                      Kevin M. ROBINSON
             Private First Class (E-2), U.S. Marine Corps
                              Appellant

                             No. 201800297

                           Decided: 16 April 2020

    Appeal from the United States Navy-Marine Corps Trial Judiciary

                             Military Judges:
                      John. L. Ferriter (arraignment)
                          Mark D. Sameit (trial)

 Sentence adjudged 20 June 2018 by a general court-martial convened
 at Marine Corps Air Ground Combat Center, Twentynine Palms,
 California, consisting of a military judge sitting alone. Sentence
 approved by the convening authority: confinement for 10 years,
 reduction to pay grade E-1, forfeiture of all pay and allowances, and a
 dishonorable discharge.

                          For Appellant:
              Commander Robert D. Evans, Jr., JAGC, USN

                             For Appellee:
                      Major Kelli A. O’Neil, USMC
          Lieutenant Commander Timothy C. Ceder, JAGC, USN

                        _________________________
             United States v. Robinson, NMCCA No. 201800297


         This opinion does not serve as binding precedent, but
          may be cited as persuasive authority under NMCCA
                   Rule of Appellate Procedure 30.2.

                          _________________________

HITESMAN, Senior Judge:
    Appellant was convicted, pursuant to his pleas, of two specifications of at-
tempted distribution of child pornography; one specification each of viewing,
possessing, and distributing child pornography; one specification of soliciting
the production of child pornography; one specification of soliciting the distri-
bution of child pornography; and one specification of communicating indecent
language, in violation of Articles 80 and 134, Uniform Code of Military Jus-
tice [UCMJ], 10 U.S.C. §§ 880, 934 (2012).
   Appellant raises two assignments of error [AOE]: (1) his case should be
remanded for new post-trial processing because a copy of the record of trial
was served on his defense counsel, rather than on Appellant as he requested;
and (2) the record does not show that the charges were properly referred to a
general court-martial.
   By order of this Court, the Government produced the referral pages of the
charge sheets and the General Court-Martial Convening Order [GCMCO] to
which the charges were referred. We granted the Government’s motion to at-
tach the documents to the record, thus mooting Appellant’s second AOE.
   With regard to Appellant’s remaining AOE, we find no prejudicial error
and affirm.

                              I. BACKGROUND

    Defense counsel advised Appellant in writing of his post-trial rights, and
Appellant specifically requested that a copy of the authenticated record of
trial be served only on him. Prior to deliberating on a sentence, the military
judge discussed this request with Appellant as follows:
          MJ: In paragraph, 8(a) and 9(a) it indicates you want the
              copy of the record of trial sent to you as well as a copy
              of the SJAR sent to you; is that correct?
         ACC: Yes, Sir.
          MJ: And those are your initials next to those paragraphs?
         ACC: They are.
          MJ: You want it to go to you and not your defense counsel?


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                 United States v. Robinson, NMCCA No. 201800297


             ACC: My defense counsel will be EAS’ing shortly, sir.
              MJ: Okay. But you obviously have two defense counsel in
                  this case. Do you still want it going to you as opposed
                  to [defense counsel]?
             ACC: Yes, sir. 1
    On 10 August 2018, the Legal Services Support Section – West [LSSS-W]
Regional Review Clerk sent notice to Appellant’s defense counsel that he had
“uploaded the Record of Trial (ROT) and Record of Trial Receipt in the case of
PFC Robinson via [a secured delivery application] for your records.” 2 Some-
time later, in an undated affidavit, the LSSS-W Regional Review Officer
acknowledged that Appellant “requested that a copy of the Record of Trial
(ROT) be served to the accused.” 3 However, his affidavit also attested to the
following:
         The accused was served through his defense counsel, however,
         the accused did not respond or return the Record of Trial re-
         ceipt to the Defense Counsel. For service of post-trial docu-
         ments, the defense counsel provided [his] email address . . . The
         defense counsel was served a copy of the (ROT) on 10 August
         2018 . . . After being served, the Defense Counsel did not re-
         spond or return the Record of Trial receipt.4
    Appellant was confined at the Naval Consolidated Brig on Marine Corps
Air Station [MCAS] Miramar, which is located less than 40 miles from the
LSSS-W Regional Review Office on Marine Corps Base Camp Pendleton. Ap-
pellant’s defense counsel was located at Marine Corps Air Ground Combat
Center, Twentynine Palms, California, over 100 miles away from both Camp
Pendleton and MCAS Miramar. Finally, the convening authority [CA] and
staff judge advocate [SJA] were located at Marine Corps Base Quantico, Vir-
ginia.
   On 22 August 2018, Appellant’s detailed defense counsel submitted a re-
quest for clemency pursuant to Rule for Courts-Martial [R.C.M.] 1105. On 6
September 2018, the Staff Judge Advocate’s Recommendation [SJAR] was



   1   Record at 188.
   2  Record, LSSS-W Regional Review Clerk email “ROT and ROT Rcpt ICO Robin-
son” of 10 Aug 18.
   3   Record, Affidavit of LSSS-W Regional Review Officer, undated.
   4   Id.




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             United States v. Robinson, NMCCA No. 201800297


independently served on Appellant’s defense counsel and on Appellant. Ap-
pellant’s defense counsel acknowledged receipt and noted that matters were
submitted on 22 August 2018. Appellant also acknowledged receipt of the
SJAR and waived submission of R.C.M. 1105 and 1106 matters. The record is
unclear as to whether Appellant was aware that his defense counsel had al-
ready submitted a clemency request.
   Additional facts necessary to the resolution of the assignments of error
are included in the discussion.

                               II. DISCUSSION

   Appellant contends that he is entitled to new post-trial processing be-
cause the Government knowingly failed to serve a copy of the record of trial
on him. While we find error in the Government’s post-trial processing, we do
not find that the error prejudiced the substantial rights of Appellant.
    Proper execution of post-trial processing is a question of law, reviewed de
novo. See United States v. Bush, 68 M.J. 96, 102 (C.A.A.F. 2009) (reviewing
de novo for unreasonable post-trial delay de novo); see also United States v.
Kho, 54 M.J. 63, 65 (C.A.A.F. 2000) (reviewing de novo whether SJA’s errone-
ous recommendation to convening authority amounted to plain error). “Where
there is error in post-trial processing and ‘some colorable showing of possible
prejudice’ thereby, this court must either provide meaningful relief or remand
for new post-trial processing.” United States v. Roller, 75 M.J. 659, 661 (N-M.
Ct. Crim. App. 2016) (quoting United States v. Wheelus, 49 M.J. 283, 289
(C.A.A.F. 1998)). “First, an appellant must allege the error at the Court of
Criminal Appeals. Second, an appellant must allege prejudice as a result of
the error. Third, an appellant must show what he would do to resolve the er-
ror if given such an opportunity.” Wheelus, 49 M.J. at 288.
    This Court has long held that when an accused specifically asks that his
copy of the record be sent to him and not to his defense counsel, service to his
defense counsel is not authorized. United States v. Horne, 33 M.J. 575, 576
(N.M.C.M.R. 1991). In this case, the LSSS-W Regional Review leadership
demonstrated an unusual level of disregard for the post-trial review process
by issuing an undated, internally inconsistent affidavit that admits serving
the record on someone Appellant specifically requested that it not be served
on, and the Review Officer did not even know if that (wrong) person received
it because nobody acknowledged receipt for it. The record contains no state-
ment explaining why Appellant was not personally served and we find no ev-
idence that it was impracticable to do so. Given the close proximity of Appel-
lant’s place of confinement to the LSSS-W Regional Review Office, the lack of
justification for not serving the record of trial on him, and the fact that the
SJA was able to serve the SJAR on Appellant and his defense counsel from

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             United States v. Robinson, NMCCA No. 201800297


Virginia, we find that the Government’s failure to serve the record of trial on
Appellant was error.
    Despite the error, Appellant is not entitled to relief simply because he was
not served with the record in accordance with his election. “[B]ecause clemen-
cy is a highly discretionary [e]xecutive function, there is material prejudice to
the substantial rights of an appellant if there is an error and the appellant
‘makes a colorable showing of possible prejudice.’ ” Wheelus, 49 M.J. at 289
(quoting United States v. Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)).
    In Wheelus, the Court of Appeals for the Armed Forces [CAAF] held that
the appellant was not entitled to relief where he claimed that the Govern-
ment’s untimely service of the record prejudiced his ability to submit a clem-
ency request. Id. at 289. While service of the record was inadequate, the
Court noted that the trial defense counsel submitted matters for Sergeant
Wheelus and (1) trial defense counsel did not complain that he had not been
served with the record, (2) there was no evidence in the record to show that
the trial defense counsel did not actually receive the record of trial prior to
preparing Sergeant Wheelus’ clemency request, and (3) there was evidence
that the Government eventually sent Sergeant Wheelus the record of trial.
The CAAF found no merit in Sergeant Wheelus’ claim that the Government’s
failure to serve him with the record hindered his ability to prepare clemency
matters.
    Here, as in Wheelus, there is no evidence in the record that Appellant or
his defense counsel did not actually receive the record of trial. While defense
counsel submitted a clemency request on 22 August 2018, there is no evi-
dence indicating whether he did or did not consult with Appellant or review
the record of trial with him prior to submitting that request. We also note
that the request itself asks for clemency that the CA could not lawfully grant.
Appellant’s defense counsel asked the CA to suspend confinement in excess of
five years. It is well established that under Article 60(c)(4), UCMJ, a CA may
not “disapprove, commute, or suspend in whole or in part an adjudged sen-
tence of confinement for more than six months or a sentence of dismissal,
dishonorable discharge, or bad conduct discharge” unless the trial counsel
recommends so in recognition of the appellant’s “substantial assistance” or
pursuant to the terms of the pretrial agreement. As neither exception applies
in this case, the CA could not legally grant the requested relief. See United
States v. Kruse, 75 M.J. 971, 975 (N-M. Ct. Crim. App. 2016) (holding a CA’s
action purporting to disapprove a bad-conduct discharge where no legal basis
to do so existed to be ultra vires).
    Nevertheless, Appellant has not articulated any specific prejudice that re-
sulted from the erroneous request and has not submitted any evidence indi-
cating how his trial defense counsel’s clemency submission contrasted with


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             United States v. Robinson, NMCCA No. 201800297


his wishes. See United States v. Pierce, 40 M.J. 149, 151 (C.M.A. 1994) (find-
ing that “vague or general intimations” with regards to what the appellant
would have submitted to the CA are insufficient to show prejudice). While the
CA had some limited discretion to defer and modify Appellant’s reduction in
grade and forfeitures, Appellant submitted no evidence that he desired any
such relief or, alternatively, that he was improperly advised regarding any
such potential clemency. Finally, the SJAR was independently served upon
and acknowledged by both Appellant and his defense counsel. Neither com-
plained that they had not been served with the record of trial, neither asked
for the record of trial, neither requested an extension, and both initialed the
block stating that they had no R.C.M. 1105 and 1106 matters to submit.
Moreover, Appellant’s defense counsel noted that he had already submitted
R.C.M. 1105 matters.
    Finally, Appellant does not contend that he would have done something
different had he been served with the record. The most he could have done is
(1) identify the missing referral pages and court-martial convening order, and
(2) request proper clemency from the CA. The former has been remedied by
order of this Court. The latter would not have produced anything more favor-
able from the CA. The SJA advised the CA that he could not grant the re-
quested clemency pursuant to Article 60, UCMJ, but that he could grant oth-
er clemency, including certain modifications and deferment. After considering
Appellant’s request, the record of trial, and the advice of his SJA, the CA de-
clined to grant any clemency at all. Accordingly, we conclude that there has
not been a colorable showing of possible prejudice and Appellant’s claim is
without merit.

                             III. CONCLUSION

    The findings and sentence are correct in law and fact and no error mate-
rially prejudicial to Appellant’s substantial rights occurred. Arts. 59, 66,
UCMJ. The findings and sentence are AFFIRMED.
   Judges GASTON and STEWART concur.


                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




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