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

                               No. ACM 39508
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                        Matthew A. NEWMAN
           Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 9 December 2019
                          ________________________

Military Judge: Andrew Kalavanos.
Approved sentence: Dishonorable discharge, confinement for 2 years,
and reduction to E-1. Sentence adjudged 8 May 2018 by GCM convened
at Dover Air Force Base, Delaware.
For Appellant: Captain David A. Schiavone, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Judge POSCH delivered the opinion of the court, in which Senior Judge
J. JOHNSON and Judge KEY joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                          ________________________

POSCH, Judge:
   In accordance with Appellant’s pleas of guilty pursuant to a pretrial agree-
ment (PTA), a general court-martial composed of a military judge found Appel-
lant guilty of one specification of wrongfully possessing child pornography and
one specification of wrongfully viewing child pornography, both in violation of
                    United States v. Newman, No. ACM 39508


Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. 1,2 The
military judge sentenced Appellant to a dishonorable discharge, confinement
for two years, and reduction to the grade of E-1. The convening authority ap-
proved the adjudged sentence, which did not exceed the limitations in the PTA.
   Appellant raises one error: whether new post-trial processing is required
because the staff judge advocate (SJA) incorrectly advised the convening au-
thority (CA) that the maximum sentence to confinement was twice the maxi-
mum confinement authorized for Appellant’s offenses. We find no prejudicial
error and affirm.

                                  I. BACKGROUND
    Following Appellant’s conviction and sentence, the SJA provided her rec-
ommendation to the CA. However, the SJA’s recommendation (SJAR) incor-
rectly advised the CA on the maximum sentence for the two offenses of which
Appellant was convicted, asserting it was 40 years, and not 20.
    In Appellant’s clemency request, his trial defense counsel did not object to
the incorrect statement of the maximum punishment in the SJAR or raise any
legal error. The trial defense counsel advocated to reduce Appellant’s term of
confinement from two years to one at the same time conceding that the CA
lacked authority to provide confinement relief. On behalf of Appellant, trial
defense counsel asked the CA to approve a sentence after considering “all of
the evidence presented at trial . . . to include testimony of a friend, mentor, and
[Appellant’s] mother.” The SJA’s Addendum to the SJAR stated the “defense
[does] not allege any legal error,” and her “earlier recommendation remains
unchanged.”
   The CA followed the SJA’s recommendation and approved the sentence as
adjudged.

                                   II. DISCUSSION
A. Law
   “The standard of review for determining whether post-trial processing was
properly completed is de novo.” United States v. Sheffield, 60 M.J. 591, 593


1All references in this opinion to the Uniform Code of Military Justice (UCMJ) are to
the Manual for Courts-Martial, United States (2016 ed.).
2Appellant pleaded not guilty to a specification alleging wrongful distribution of child
pornography, also in violation of Article 134, UCMJ, which the convening authority
withdrew and dismissed upon announcement of the sentence in accordance with the
terms of the pretrial agreement.


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                    United States v. Newman, No. ACM 39508


(A.F. Ct. Crim. App. 2004) (citing United States v. Kho, 54 M.J. 63 (C.A.A.F.
2000)). Failure to comment in a timely manner on matters in or attached to
the SJAR forfeits a later claim of error; we analyze such forfeited claims for
plain error. Id. (citations omitted). “To prevail under a plain error analysis,
Appellant must persuade this Court that: ‘(1) there was an error; (2) it was
plain or obvious; and (3) the error materially prejudiced a substantial right.’”
United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005) (quoting Kho, 54 M.J.
at 65) (additional citation omitted). “To meet this burden in the context of a
[SJAR] error, whether that error is preserved or is otherwise considered under
the plain error doctrine, an appellant must make ‘some colorable showing of
possible prejudice.’” Id. at 436–37 (quoting Kho, 54 M.J. at 65).
B. Analysis
    The parties agree that the SJA incorrectly advised the CA that the maxi-
mum sentence included a term of confinement for 40 years and that this advice
was error. In fact, the maximum term of confinement was 20 years. See Manual
for Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 68b.e.(1). 3 There
is no doubt Appellant forfeited a claim of error in the post-trial processing of
his case when he failed to comment on the error; thus, we review for plain
error. See Sheffield, 60 M.J. at 593 (citations omitted).
   Error certainly occurred in this case and it was plain and obvious as the
Government concedes. The issue is whether a substantial right of Appellant
was prejudiced. See Scalo, 60 M.J. at 436 (citations omitted). Citing this court’s
unpublished opinion in United States v. Rodriguez, No. ACM 38519, 2015 CCA
LEXIS 143, at *6–7 (A.F. Ct. Crim. App. 14 Apr. 2015) (unpub. op.), Appellant
prevails upon this court to be mindful that “[t]he SJAR is the mechanism to
advise the convening authority of the maximum punishment an accused faced,
thereby informing the convening authority how the adjudged sentence com-
pared to what might have been adjudged. Accurate advice in this regard is a
particularly important component of the SJAR.” Id. at *7.
   Our observation in Rodriguez remains unchanged, but we nevertheless con-
clude Appellant was not prejudiced here. The National Defense Authorization
Act for Fiscal Year 2014 modified Article 60, UCMJ, 10 U.S.C. § 860, and
changed the CA’s ability to affect sentences of confinement for more than six



3The 40-year maximum term of confinement would have been correct had Appellant
also been found guilty of the specification alleging wrongful distribution of child por-
nography, which the CA withdrew and dismissed in accordance with the PTA. See
MCM, pt. IV, ¶ 68b.e.(3) (20-year maximum for distributing child pornography). We
note that the SJA who advised the CA in the SJAR also advised the CA to accept the
PTA.


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                  United States v. Newman, No. ACM 39508


months or a sentence of dismissal, dishonorable discharge, or bad-conduct dis-
charge adjudged for offenses committed on or after the effective date of the
change, 24 June 2014. Pub. L. No. 113–66, § 1702, 127 Stat. 672, 954–58 (2013);
see Article 60(c)(4)(A), UCMJ, 10 U.S.C. § 860(c)(4)(A). Appellant was convicted
of offenses committed after 24 June 2014, thus the CA had no power to disap-
prove, commute, or suspend in whole or in part the confinement or punitive
discharge. Unlike the CA in Rodriguez, the CA’s clemency power under Article
60, UCMJ, was limited to Appellant’s reduction in grade. Yet, Appellant never
asked the CA in his clemency to disapprove, commute, or suspend in whole or
in part the reduction in grade. Instead, Appellant requested confinement relief
at the same time noting that it was beyond the CA’s authority to grant.
     In one significant respect, Appellant’s case is similar to that of the appel-
lant in Scalo. In Scalo, the SJAR erroneously reported that the appellant had
not been subject to any pretrial restraint. 60 M.J. at 436. In fact, the appellant
had been restricted to the limits of Fort Stewart, Georgia, for 44 days. Id. The
appellant did not comment on this omission until appeal, when he argued that
a properly informed CA “could have noticed that Appellant served his pretrial
restraint without disciplinary problems,” which could have increased the odds
that the CA would grant clemency. Id. at 437. The United States Court of Ap-
peals for the Armed Forces (CAAF) concluded that because the appellant “did
not directly or indirectly refer to the pretrial restraint or suggest that the con-
vening authority should take it into account in considering clemency,” the ap-
pellant did not “reveal any connection between the time he spent in pretrial
restraint and his clemency request.” Id. The CAAF concluded that the appel-
lant failed to make a colorable showing of possible prejudice from the SJA’s
misstatement of fact. Id. Much like the appellant in Scalo, Appellant has failed
to link the erroneous information in the SJAR and his clemency request. Thus,
Appellant, like the appellant in Scalo, has not shown prejudice.

                                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).




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                   United States v. Newman, No. ACM 39508


    Accordingly, the findings and the sentence are AFFIRMED. 4


                  FOR THE COURT



                  CAROL K. JOYCE
                  Clerk of the Court




4Appellant identifies an error in the court-martial order (CMO) in that Specification 3
of the Charge incorrectly identifies that Appellant pleaded guilty and was found guilty
of knowingly and wrongfully viewing “digital images and videos of a minor.” In fact, as
charged, pleaded, and found guilty, this specification reads “videos of a minor” only.
We direct the publication of a corrected CMO to remedy this error.


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