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

                               No. ACM S32574
                           ________________________

                              UNITED STATES
                                  Appellee
                                       v.
                         Landon M. TAYLOR
           Airman First Class (E-3), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 29 August 2019
                           ________________________

Military Judge: Mark F. Rosenow (arraignment); Rebecca E. Schmidt.
Approved sentence: Bad-conduct discharge, confinement for 5 months,
and reduction to E-1. Sentence adjudged 11 December 2018 by SpCM
convened at Vandenberg Air Force Base, California.
For Appellant: Major Kirk W. Albertson, USAF.
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
                           ________________________

    This is an unpublished opinion and, as such, does not serve as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


PER CURIAM:
    In accordance with Appellant’s pleas pursuant to a pretrial agreement, a
special court-martial composed of a military judge convicted Appellant of two
specifications of impaired operation of a vehicle, one specification of wrongful
use of marijuana on divers occasions, one specification of wrongful introduction
of marijuana, one specification of wrongful distribution of marijuana, and one
specification of breaking restriction in violation of Articles 111, 112a, and 134,
                    United States v. Taylor, No. ACM S32574


Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 911, 912a and 934.1
The military judge sentenced Appellant to a bad-conduct discharge, confine-
ment for 5 months, and reduction to E-1. The pretrial agreement did not impact
the sentence the convening authority could approve and the convening author-
ity approved the adjudged sentence.

                                 I. BACKGROUND
    This case was submitted for our review on its merits without assignment
of error. Upon our review, we noted two errors: (1) a scrivener’s error on the
charge sheet in which the Appellant pleaded and was found guilty of using
marijuana on or about 31 September 2018 (emphasis added); and (2) the staff
judge advocate’s recommendation (SJAR) misstated the maximum punish-
ment in a special court-martial. We briefly address each error.

                                  II. DISCUSSION
A. Charge Sheet – Scrivener’s Error
    The first error involves Specification 1 of Charge I. After Appellant’s ar-
raignment, the Government elected to amend Specification 1 of Charge I by
striking the word “August” and replacing it with the word “September”,
thereby expanding the charged timeframe by one month. The specification
then read, in pertinent part, “between on or about 1 December 2017 and on or
about 31 September 2018 wrongfully use marijuana.”2 Appellant pleaded and
was found guilty of the amended specification. The obvious challenge created
by this change is that there was no 31 September 2018, because September
only has 30 days in the month. Despite the “on or about” language in the spec-
ification, we elect not to affirm an obvious scrivener’s error for a date that does
not exist.
   During his providence inquiry with regard to Specification 1 of Charge 1,
Appellant stated at one point: “On multiple occasions, within Vandenberg or
California, or the local area, I used marijuana between 1 December and . . . to
the 3rd of September 2018.” In the stipulation of fact, Appellant stipulated to


1All references in this opinion to the Uniform Code of Military Justice (UCMJ) and
Rules for Courts-Martial (R.C.M.) are found in the Manual for Courts-Martial, United
States (2016 ed.).
2The Government also added a terminal element to the Specification of Charge III,
breaking restriction. Appellant did not object to the major changes pursuant to R.C.M.
603.




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                     United States v. Taylor, No. ACM S32574


“routinely using marijuana since December 2017.” Furthermore, during his
providence inquiry Appellant was asked by the military judge: “Do you know
how many times you used marijuana between the first of December 2017 and
the 31st of September 2018?” Appellant replied: “I don’t know the exact num-
ber; but, I smoked within that timeframe at least once or twice a week.”3
    We are mindful of the recent United States Court of Appeals for the Armed
Forces (CAAF) opinion in United States v English, __ M.J. __, No. 19-0050,
2019 CAAF LEXIS 562, (C.A.A.F. 30 July 2019). In English, CAAF stated: “As
the Government concedes, exceptions and substitutions under Rule for Courts-
Martial (R.C.M.) 918(a)(1) (2016 ed.), may not be made at the appellate level.”
Id. at *2 (citing United States v. Lubasky, 68 M.J. 260, 261 (C.A.A.F. 2010)).
However, CAAF further clarified: “In performing its review under Article 66(c),
UCMJ, a Court of Criminal Appeals (CCA) may narrow the scope of the appel-
lant’s conviction to that conduct it deems legally and factually sufficient.” Eng-
lish at *6 (citing United States v. Piolunek, 74 M.J. 107, 112 (C.A.A.F. 2015)
(language omitted); United States v. Rodriguez, 66 M.J. 201, 203 (C.A.A.F.
2008) (“upholding the CCA's decision to strike ‘on divers occasions’ from the
specification at issue and affirm only one instance of the offense”)).4 In this
case, we are narrowing the time frame to that conduct we deem legally and
factually sufficient. Therefore, based on the Appellant’s own words during the
providence inquiry that he used marijuana until the “3rd of September,” in our
decretal paragraph, we will strike the number “1” from the date “31 September
2018.”
B. SJAR Error – Maximum Punishment
    The second error involves the SJAR, in which the maximum punishment
was stated as a: “bad conduct discharge, confinement for one (1) year, and for-
feiture of two-thirds pay per month for twelve (12) months.” The SJAR did not
include reduction to E-1 as part of the maximum punishment. See Article 56(a)
UCMJ and R.C.M. 1003(b)(4).



3In addition, Appellant signed a stipulation of fact stating he used marijuana “around
April 2018” and nine separate times in May 2018. In addition, on or about May 2018
while on leave in Louisiana, Appellant “smoked 12 full blunts.”

4 CAAF further reiterated this point when it stated: “We specifically note that this
holding does not call into question our decisions that permit a CCA to narrow the scope
of language in a specification to affirm only so much as is correct in law and fact . . . .
Where the CCA narrows the charging language rather than broadening it, such a
change does not run afoul of the due process concerns implicated here.” English, 2019
CAAF LEXIS 662 at *11, n.5.




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                    United States v. Taylor, No. ACM S32574


    Proper completion of post-trial processing is a question of law this court
reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim.
App. 2004) (citation omitted). “Failure to timely comment on matters in the
SJAR, or matters attached to the recommendation, forfeits any later claim of
error in the absence of plain error.” United States v. LeBlanc, 74 M.J. 650, 660
(A.F. Ct. Crim. App. 2015) (en banc) (citing R.C.M. 1106(f)(6); United States v.
Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005)). To prevail under a plain error analy-
sis, an appellant must show “(1) there was an error; (2) [the error] was plain or
obvious; and (3) the error materially prejudiced a substantial right.” Id. (quot-
ing Scalo, 60 M.J. at 436). The threshold for establishing prejudice from errors
impacting an appellant’s request for clemency from the convening authority is
low, even in the context of plain error analysis, but there must be “some ‘color-
able showing of possible prejudice.’” Id. (quoting Scalo, 60 M.J. at 437).
    The error in the maximum punishment was not addressed in the Defense’s
clemency submission. Therefore, we test for plain error. We find the error ob-
vious based on the law cited above. We also note the military judge correctly
stated the maximum punishment prior to accepting Appellant’s plea of guilty
and counsel for both sides concurred in the military judge’s statement.
    Despite the obvious error, Appellant has not attempted to make a colorable
showing of possible prejudice and we find none. See Scalo, 60 M.J. at 436–37.
The staff judge advocate advised the convening authority of his authority to
“disapprove, commute, or suspend in whole or in part the confinement and re-
duction in rank”, and the convening authority chose not to use his authority.
The missing reduction to E-1 language in the recitation of the maximum pun-
ishment is an omission. Under the facts of this case, we are confident that stat-
ing the proper maximum punishment would not have led to a more favorable
recommendation nor clemency by the convening authority. See United States
v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996).

                                 III. CONCLUSION
    Specification 1 of Charge I is amended by striking the number “1” from the
number “31”.5 The approved findings, as modified, and sentence are correct in
law and fact, and no error materially prejudicial to Appellant’s substantial
rights occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c)
(2016).


5The specification should read “In that AIRMAN FIRST CLASS LANDON M. TAY-
LOR, United States Air Force, 30th Logistics Readiness Squadron, Vandenberg Air
Force Base, California, did, on divers occasions within the continental United States,
between on or about 1 December 2017 and on or about 3 September 2018, wrongfully
use marijuana.” We direct a new court martial order reflecting our decision.


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             United States v. Taylor, No. ACM S32574


Accordingly, the findings as modified and sentence are AFFIRMED.




               FOR THE COURT



               AARON L. JONES
               Deputy Clerk of the Court




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