              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                           ________________________

                               No. ACM S32377
                           ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                         James R. STORTZ
             Senior Airman (E-4), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 17 April 2017
                           ________________________

Military Judge: Matthew P. Stoffel.
Approved sentence: Bad-conduct discharge, confinement for 4 months,
and reduction to the grade of E-1. Sentence adjudged 17 December 2015
by SpCM convened at Joint Base Elmendorf-Richardson, Alaska.
For Appellant: Major Johnathan D. Legg, USAF.
For Appellee: Major J. Ronald Steelman III, USAF; Gerald R. Bruce,
Esquire.
Before MAYBERRY, HARDING, and C. BROWN, Appellate Military Judges
Judge C. BROWN delivered the opinion of the court, in which Senior Judge
MAYBERRY and Judge HARDING joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________

C. BROWN, Judge:
    At a special court-martial in front of a military judge sitting alone, Appel-
lant was convicted, consistent with his pleas, of one charge with two specifica-
tions of divers wrongful use and divers introduction of Oxycodone, a Schedule
II substance, in violation of Article 112a, Uniform Code of Military Justice
                     United States v. Stortz, No. ACM S32377


(UCMJ), 10 U.S.C. § 912a. The military judge sentenced Appellant to a bad-
conduct discharge, confinement for six months, and reduction to the grade of
E-1. Pursuant to a pretrial agreement, the convening authority (CA) approved
confinement for four months and the remainder of the sentence as adjudged.
    On appeal, Appellant raises two assignments of error: (1) Appellant is en-
titled to sentence appropriateness relief resulting from his post-trial confine-
ment conditions under Article 66(c), UCMJ, 10 U.S.C. §§ 866(c); and (2) The
staff judge advocate (SJA) committed prejudicial legal error by failing to accu-
rately advise the CA that Appellant alleged legal error in his submission of
clemency matters. Finding no relief is warranted, we affirm the findings and
sentence.

                                I. BACKGROUND
    Appellant used Oxycodone on more than 20 occasions, primarily at the on-
base residence of two fellow Airmen where he resided for a period of time. Ap-
pellant either crushed up a generic pill of Percocet (Oxycodone) and snorted it
or mixed the crushed pill with water on a spoon, applied heat to the mixture
and then injected the mixture into his arm. Appellant taught one of the Airmen
who resided in the on-base house how to inject herself with the drug. Appellant
also brought the drug onto Joint Base Elmendorf-Richardson (JBER) on five
different occasions to use it in on-base housing or in the dormitory where he
also resided at times.

                                II. DISCUSSION
A. Appellant’s Post-trial Confinement Conditions
    After his trial, Appellant was confined at the Anchorage Correctional Com-
plex (ACC). In his clemency submission, Appellant stated he was placed in
solitary confinement in an area comprised primarily of violent offenders
who were either a risk to kill themselves or a risk to kill others. He claimed
he spent 23 hours a day in isolation, and was only allowed to leave daily to
shower, make a 15-minute phone call if phones were available, and was not
provided recreational time as required. He experienced a two-day delay in
receiving prescription medications during which time he experienced se-
vere panic attacks, and finally, he was unable to obtain shampoo for three
weeks resulting in sores developing on his head. Appellant’s clemency sub-
mission alleged the confinement conditions he experienced were potentially
cruel or unusual punishment in violation of the Eighth Amendment 1 and Arti-



1   U.S. CONST. amend. VIII.


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                     United States v. Stortz, No. ACM S32377


cle 55, UCMJ, 10 U.S.C. § 855, or at a minimum, a regulatory infraction. How-
ever, on appeal, he asks this court to examine his treatment in civilian confine-
ment “through the lens of sentence appropriateness,” citing United States v.
Fields, 74 M.J. 619, 623 (A.F. Ct. Crim. App. 2014) (citing United States v.
Gerke, 21 M.J. 300 (C.M.A. 1985), United States v. McPherson, 72 M.J. 862,
872 (A.F. Ct. Crim. App. 2013)). 2 Appellant requests we exercise our authority
under Article 66(c), UCMJ, to grant sentence appropriateness relief “in the in-
terest of justice.”
    In response to Appellant’s allegations about his treatment at the ACC, the
Government obtained affidavits from SSgt CP, the Noncommissioned Officer
in Charge of confinement at JBER, and the trial counsel in Appellant’s case,
Major BC. SSgt CP states he visited Appellant in confinement periodically, in-
cluding multiple times before Appellant voiced his concerns about his confine-
ment conditions in clemency. SSgt CP reports he asked Appellant numerous
times if there was anything he could do for Appellant, but Appellant never
voiced any complaints to him or made any requests for assistance from him.
SSgt CP notes that Appellant was housed in administrative segregation for 28
days, well past the normal one to three days of administrative segregation re-
quired by Air Force Instruction, but states Appellant’s administrative segrega-
tion was due to a lack to space in the general population area of the facility as
opposed to some form punishment.




2 Both the Eighth Amendment and Article 55, UCMJ, 10 U.S.C. § 855, prohibit cruel
and unusual punishment. In general, we apply “the Supreme Court’s interpretation of
the Eighth Amendment to claims raised under Article 55, [UCMJ,] except in circum-
stances where . . . legislative intent to provide greater protections under [Article 55,
UCMJ,]” is apparent. United States v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000) (citing
United States v. Wappler, 9 C.M.R. 23, 26 (C.M.A. 1953)). “[T]he Eighth Amendment
prohibits two types of punishments: (1) those ‘incompatible with the evolving stand-
ards of decency that mark the progress of a maturing society’ or (2) those ‘which involve
the unnecessary and wanton infliction of pain.’” United States v. Lovett, 63 M.J. 211,
215 (C.A.A.F. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 102–03 (1976)). A violation
of the Eighth Amendment is shown by demonstrating: “(1) an objectively, sufficiently
serious act or omission resulting in the denial of necessities; (2) a culpable state of
mind on the part of prison officials amounting to deliberate indifference to [the appel-
lant’s] health and safety; and (3) ‘that [the appellant] has exhausted the prisoner-griev-
ance system . . . and that he has petitioned for relief under Article 138, UCMJ, 10
U.S.C. § 938.’” Id. (footnotes omitted). Applying these standards de novo, United States
v. White, 54 M.J. 469, 471 (C.A.A.F. 2001), we find no Eighth Amendment or Article 55
violation.




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                   United States v. Stortz, No. ACM S32377


    SSgt CP also asserted that Appellant was housed in “B Mod,” where the
ACC keeps administratively separated confines—not violent offenders as al-
leged by Appellant—and that the law library, phone calls, recreation time and
showers are available daily to Air Force confinees upon request. During his
initial in-processing at ACC, Appellant was briefed on the rules and regula-
tions of the facility as well as instructed on the procedures to request items
such as shampoo and how to route complaints through appropriate department
of corrections channels. Appellant, like other Air Force confinees, would have
been eligible for rehabilitation classes; however, class space is limited and due
to their relatively short sentences to confinement, Air Force confinees gener-
ally are unable to attend these classes. SSgt CP asked Appellant multiple
times if he would like to request any mental health services from on-base agen-
cies and Appellant refused on each occasion.
    SSgt CP further stated that the ACC has a fully operational, round-the-
clock medical facility, permanently staffed by certified nurses, and also em-
ploying doctors and mental health, dental and optometry technicians. All med-
ications must be approved and prescribed by ACC medical personnel to be
given inside of their facility. Depending on the size of the prison population at
any given time, there may be a delay in receiving prescription medication. Ma-
jor BC stated that outside of Appellant’s clemency request, the legal office had
no record of Appellant raising complaints or requesting additional relief due to
his post-trial confinement conditions, including complaints under Article 138,
UCMJ.
    This court “may affirm only such findings of guilty and the sentence or such
part or amount of the sentence, as it finds correct in law and fact and deter-
mines, on the basis of the entire record, should be approved.” Article 66(c),
UCMJ. Before making this determination, we must first assess whether we
should remand this case for a post-trial fact-finding hearing. In United States
v. Fagan, 59 M.J. 238, 241–42 (C.A.A.F. 2004), our superior court determined
that the framework of United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997),
guides our determination of whether a post-trial fact-finding hearing is neces-
sary to resolve a claim based on the conditions of post-trial punishment. We
apply the following principles, originally set forth to deal with post-trial claims
of ineffective assistance of counsel, to determine whether we are able to resolve
Appellant’s issue based upon post-trial declarations submitted by the parties,
or in the alternative, whether a post-trial fact-finding hearing is required:
       First, if the facts alleged in the affidavit allege an error that
       would not result in relief even if any factual dispute were re-
       solved in appellant’s favor, the claim may be rejected on that ba-
       sis.



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       Second, if the affidavit does not set forth specific facts but con-
       sists instead of speculative or conclusory observations, the claim
       may be rejected on that basis.
       Third, if the affidavit is factually adequate on its face to state a
       claim of legal error and the Government either does not contest
       the relevant facts or offers an affidavit that expressly agrees
       with those facts, the court can proceed to decide the legal issue
       on the basis of those uncontroverted facts.
       Fourth, if the affidavit is factually adequate on its face but the
       appellate filings and the record as a whole “compellingly demon-
       strate” the improbability of those facts, the court may discount
       those factual assertions and decide the legal issue.
       Fifth, when an appellate claim of ineffective representation con-
       tradicts a matter that is within the record of a guilty plea, an
       appellate court may decide the issue on the basis of the appellate
       file and record (including the admissions made in the plea in-
       quiry at trial and appellant’s expression of satisfaction with
       counsel at trial) unless the appellant sets forth facts that would
       rationally explain why he would have made such statements at
       trial but not upon appeal.
       Sixth, the Court of Criminal Appeals is required to order a
       fact[-]finding hearing only when the above-stated circumstances
       are not met. In such circumstances the court must remand the
       case to the trial level for a DuBay proceeding. During appellate
       review of the DuBay proceeding, the court may exercise its Arti-
       cle 66 fact[-]finding power and decide the legal issue.
Ginn, 47 M.J. at 248; see also United States v. DuBay, 37 C.M.R. 411, 413
(C.M.A. 1967).
    Applying this framework, we find it unnecessary to remand this case for
additional fact-finding. Appellant’s account of his confinement conditions, as
described in his clemency submission, are consistent with SSgt CP’s declara-
tion concerning Appellant’s treatment. To the extent there are differences be-
tween Appellant’s and the Government’s accounts, our resolution of those dis-
crepancies in Appellant’s favor would not result in granting Appellant relief.
    Turning to the merits of Appellant’s claim, this court may employ its Article
66(c) authority to grant sentencing relief even in the absence of cruel or unu-
sual punishment in violation of the Eighth Amendment and Article 55. Gay,
74 M.J. at 742. In reviewing our decision in Gay to use this authority, our su-
perior court held that this court did not abuse its discretion in doing so, based
on the facts of that case. United States v. Gay, 75 M.J. 264, 269 (C.A.A.F. 2016).

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                    United States v. Stortz, No. ACM S32377


However, our superior court noted that Gay involved unique facts driven by
legal errors in the post-trial process that included both a violation of the appel-
lant’s rights under Article 12, UCMJ, 10 U.S.C. § 812, and the ordering of sol-
itary confinement by an Air Force official where an alternative solution was
available. Id. Significantly, our superior court emphasized, “In reaching this
conclusion, we do not recognize unlimited authority of the Courts of Criminal
Appeals to grant sentence appropriateness relief for any conditions of post-trial
confinement of which they disapprove.” Id. Given these parameters, we have
previously noted we will likely only exercise our Article 66(c) authority to grant
sentence relief based upon conditions of post-trial confinement in very rare cir-
cumstances. See United States v. Milner, No. ACM S32338, 2017 CCA LEXIS
84 (A.F. Ct. Crim. App. 7 Feb. 2017) (unpub. op.); cf. United States v. Nerad,
69 M.J. 138, 145–47 (C.A.A.F. 2010) (holding that despite our significant dis-
cretion in reviewing the appropriateness of a sentence, this court may not en-
gage in acts of clemency).
    The conditions of Appellant’s confinement and those described in Gay were
similar in that both cases involved a military prisoner held in isolation at a
civilian confinement facility. See Gay, 74 M.J. at 739. However, the propriety
of Article 66(c) sentence relief for a particular appellant is a fact-specific deter-
mination, and there are important differences between Gay’s and Appellant’s
treatment. In Gay, the civilian confinement facility had an existing process to
avoid housing military confinees with foreign nationals that did not require
solitary confinement, but for reasons that are unclear, an Air Force official spe-
cifically requested that Gay be placed in solitary confinement. Id. at 739, 743.
When representatives from Gay’s squadron, alarmed at his conditions, re-
quested that Gay be removed from solitary confinement, the civilian facility
readily acceded to that request. Id. That is not the case for Appellant, as he
was housed in administrative segregation due to a lack of space in general pop-
ulation and was moved out of administrative segregation as soon as space be-
came available.
    Additionally, unlike Gay, Appellant did not complain about his confine-
ment conditions using either Article 138, UCMJ, or facility grievance proce-
dures available to him. See id. at 738-42. Outside of his clemency package, Ap-
pellant does not assert, and there is no other evidence, that he made additional
complaints. Our superior court has emphasized, “A prisoner must seek admin-
istrative relief prior to invoking judicial intervention to redress concerns re-
garding post-trial confinement conditions.” United States v. Wise, 64 M.J. 468,
469 (C.A.A.F. 2007). This requirement “promot[es] resolution of grievances at
the lowest possible level [and ensures] that an adequate record has been devel-
oped [to aid appellate review].” Id. at 471 (quoting United States v. Miller, 46
M.J. 248, 250 (C.A.A.F. 1997)). An appellant must show that “absent some un-
usual or egregious circumstance . . . he has exhausted the prisoner-grievance

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system [in his detention facility] and that he has petitioned for relief under
Article 138.” Id. (quoting United States v. White, 54 M.J. 469, 472 (C.A.A.F.
2001)).
    Finally, the particular conditions of Appellant’s post-trial confinement are
not so oppressive or disgraceful as to warrant sentence relief. Appellant was
given the same treatment and housed in the same conditions as other inmates
requiring administrative segregation from the general population. There is no
evidence he was subjected to physical or mental abuse, singled out for unusual
treatment, or refused other necessities. While Appellant did experience a delay
in receiving prescription medication, this was not a punitive measure, but ra-
ther a function of ACC rules where all medications had to be prescribed by on-
site doctors after a medical evaluation. There is no evidence the conditions of
his confinement impacted his access to counsel or any other post-trial due pro-
cess right. Therefore, we find the extraordinary use of our Article 66(c) power
to grant sentence relief is not warranted in this case.
B. The Addendum to the Staff Judge Advocate’s Recommendation
(SJAR)
    After Appellant received the SJAR, both he and his trial defense counsel
raised his post-trial confinement conditions in his clemency submission, stat-
ing the conditions bordered on “cruel or unusual punishment” and were in vi-
olation of standards owed to incarcerated Airmen pursuant to Air Force In-
struction 31-105, Air Force Corrections System. The addendum to the SJAR did
not specifically address Appellant’s post-trial confinement conditions as legal
error and instead stated the SJA had reviewed the clemency matters submit-
ted by the defense and that the SJA’s earlier recommendation remained un-
changed. 3 Appellant avers he was prejudiced by the SJA’s failure to address
this “legal error” and asks the court to grant “sentence appropriateness relief,”
or in the alternative, set aside the action and remand the case for new post-
trial processing.
    The proper completion of post-trial processing is a question of law, which
this court reviews de novo. United States v. LeBlanc, 74 M.J. 650, 660 (A.F. Ct.
Crim. App. 2015) (citing United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct.
Crim. App. 2004) (citation omitted)). “Absent defense waiver or forfeiture [ ],
erroneous advice on substantial matters of fact or law will invalidate the action
when the error prejudices the accused.” United States v. Kerwin, 46 M.J. 588,
590 (A.F. Ct. Crim. App. 1996) (citations omitted). To establish prejudice due




3The SJAR properly advised the CA of the terms of the PTA and recommended ap-
proving confinement for four months and the remainder of the sentence as adjudged.


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                   United States v. Stortz, No. ACM S32377


to errors impacting an appellant’s request for clemency from the CA, the ap-
pellant must make “some colorable showing of possible prejudice . . . .” LeBlanc,
74 M.J. at 660 (citing United States v. Scalo, 60 M.J. 435, 437 (C.A.A.F. 2005)).
    Rule for Courts-Martial (R.C.M.) 1106 requires the Government to prepare
an SJAR in general courts-martial and special courts-martial that include a
sentence to a bad-conduct discharge or confinement for a year. When an ac-
cused raises legal error in matters to the CA, the SJA shall provide the CA an
opinion as to whether corrective action should be taken on the findings or sen-
tence. The response may consist of a statement of agreement or disagreement
with the matter raised by the accused but an analysis or rationale for the SJA’s
statement, if any, concerning the legal error is not required. R.C.M. 1106(d)(4).
    Appellant’s clemency submission arguably raised a legal error with respect
to the conditions of his post-trial confinement when he indicated his treatment
was akin to cruel or unusual punishment, potentially in violation of the Eighth
Amendment and Article 55, UCMJ. We nonetheless find no prejudicial error.
    First, while not specifically addressing the asserted legal error, the adden-
dum advised the CA that he must consider Appellant’s clemency submission
attached to the document, that the SJA had reviewed the clemency matters,
and that the recommendations expressed in the SJAR were unchanged. In
United States v. Catrett, 55 M.J. 400, 409 (C.A.A.F 2001), the United States
Court of Appeals for the Armed Forces (CAAF) found that the following simi-
larly vague statements in an addendum satisfied the minimal response re-
quirement of R.C.M. 1106(d)(4): “The matters submitted by the defense are
attached to this Addendum and are hereby incorporated by reference. Nothing
contained in the defense submissions warrants further modification of the
opinions and recommendations expressed in the Staff Judge Advocate's Rec-
ommendations.”
    Second, having found the purported legal error without merit, we find no
colorable showing of possible prejudice for the SJA’s failure to specifically men-
tion it. United States v. Hamilton, 47 M.J. 32 (C.A.A.F. 1997); United States v.
Welker, 44 M.J. 85 (C.A.A.F. 1996); United States v. Hill, 27 M.J. 293, 297
(C.M.A. 1988) (“We are not required to give an accused the benefit of any pos-
sibility that the staff judge advocate might mistakenly have attributed merit
to an allegation of legal error that had no merit and that, in turn, the convening
authority might have taken action favorable to the accused.”)




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                   United States v. Stortz, No. ACM S32377


                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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