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

                              No. ACM S32447
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                           Wilson Y. CHEN
           Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 16 August 2017
                          ________________________

Military Judge: Brendon K. Tukey.
Approved sentence: Bad-conduct discharge, confinement for 9 months,
reduction to E-1, and a reprimand. Sentence adjudged 4 November 2015
by SpCM convened at Travis Air Force Base, California.
For Appellant: Major Rebecca J. Otey, USAF.
Before MAYBERRY, JOHNSON, and MINK, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Senior Judge MAYBERRY and Judge MINK joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as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

JOHNSON, Senior Judge:
    A special court-martial composed of a military judge sitting alone found
Appellant guilty, in accordance with his pleas, of one specification each of
wrongfully using marijuana, heroin, and methamphetamine on divers occa-
sions; one specification of wrongfully introducing marijuana onto a military
installation on divers occasions; one specification each of wrongful possession
of heroin and methamphetamine on divers occasions; and one specification of
                    United States v. Chen, No. ACM S32447


operating a vehicle while impaired by methamphetamine and heroin, in viola-
tion of Articles 111 and 112a, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 911, 912a. The court sentenced Appellant to a bad-conduct discharge,
confinement for nine months, reduction to E-1, and a reprimand. The conven-
ing authority approved the adjudged sentence.
    This case was submitted to us on its merits with no assignments of error.
However, we address two issues not raised by the parties: (1) an improvident
guilty plea; and (2) an error in the staff judge advocate’s recommendation
(SJAR) to the convening authority.

                                I. BACKGROUND
    In May 2016, while Appellant was stationed at Travis Air Force Base
(AFB), California, his urine sample tested positive for tetrahydrocannabinol, a
metabolite of marijuana. When interviewed by agents of the Air Force Office
of Special Investigations (AFOSI), Appellant admitted that from the autumn
of 2015 to the spring of 2016 he wrongfully used marijuana at least 20 times
and wrongfully used heroin approximately 20 times. In addition, Appellant ad-
mitted bringing marijuana onto Travis AFB in his car on at least five different
occasions over the same period. A few days after his interview, Appellant was
found to have again abused marijuana and heroin, as well as methampheta-
mine, while off-base with his civilian girlfriend.
    After undergoing a 28-day inpatient drug rehabilitation program, Appel-
lant returned to Travis AFB. On 22 August 2016, he was witnessed driving
erratically and acting strangely on base; a subsequent urinalysis indicated he
was under the influence of methamphetamine and heroin. A search of Appel-
lant’s person revealed a needle and spoon in his pocket, a bottle of urine near
his groin, and a small baggie containing methamphetamine under the blousing
strap of the right leg of his uniform pants. A search of his car revealed a plastic
bag containing a small amount of heroin.
    Appellant was charged with wrongfully using marijuana, heroin, and meth-
amphetamine on divers occasions; wrongfully introducing marijuana, heroin,
and methamphetamine onto a military installation on divers occasions; and
operating a vehicle while impaired by methamphetamine and heroin, in viola-
tion of Articles 111 and 112a, UCMJ. Appellant entered into a pretrial agree-
ment (PTA) with the convening authority whereby Appellant agreed, inter alia,
to be tried by a military judge sitting alone and to enter into a reasonable stip-
ulation of fact. In addition, Appellant agreed to plead guilty as charged, with
the exception that he would plead only to non-divers introduction of heroin and
methamphetamine onto Travis AFB. In other words, he would plead guilty to
those two specifications, but would except the words “on divers occasions,” and



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                       United States v. Chen, No. ACM S32447


he would plead not guilty to the excepted words. In return, the convening au-
thority agreed to refer the charges and specifications to a special court-martial,
without any other limitation on the sentence that might be approved.
    At trial, Appellant pleaded as agreed. The military judge conducted an in-
quiry into the providency of his pleas. 1 With respect to his pleas of guilty to
introducing heroin and methamphetamine onto Travis AFB, Appellant de-
scribed using heroin and methamphetamine at an off-base residence on 21 Au-
gust 2016. However, Appellant stated his memory was poor from that point on
until the morning of 23 August 2016. He stated he remembered a friend being
in his car with heroin and methamphetamine off-base on 21 August 2016; he
remembered returning to the base alone at some point that night; and he knew
that heroin was found in his car and methamphetamine was found on his uni-
form on base on 22 August 2016. However, he had no specific memory of bring-
ing heroin or methamphetamine onto the base. After an extended inquiry, in-
cluding a break to enable Appellant to further consult with trial defense coun-
sel, the military judge stated he was “not comfortable” finding Appellant’s
pleas to the specifications of introducing heroin and methamphetamine provi-
dent based on the requirement that Appellant know at the time he introduced
the substances onto the base that he was bringing those drugs, or another sub-
stance he believed to be contraband, onto the base.
    As a result, Appellant and the convening authority entered into a new PTA
with a revised stipulation of fact. With respect to the specifications of wrong-
fully introducing heroin and methamphetamine, the new PTA provided Appel-
lant would plead: “NOT GUILTY, but GUILTY of the lesser included offense of
possession, except the words ‘on divers occasions’ of the excepted words NOT
GUILTY.” The convening authority’s commitment remained the same, that is,
to refer the charges and specifications to a special court-martial. The court-
martial resumed, and at the military judge’s direction, trial defense counsel re-
announced Appellant’s pleas. However, in announcing the pleas to the lesser
included offenses of possession of heroin and methamphetamine, in each case
trial defense counsel failed to except the words “on divers occasions.” 2
    The military judge then continued the providence inquiry based on the new
pleas. No evidence was adduced either in the stipulation of fact or by question-
ing Appellant that he possessed heroin and methamphetamine on an occasion


1   United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
2 Trial defense counsel announced the pleas to these specifications as follows: “Of Spec-
ification 5 of Charge I: Not Guilty, but guilty of the lesser included offense of possession
of heroin, also in violation of Article 112a. Of Specification 6 of Charge I: Not Guilty,
but guilty of the lesser included offense of possession of methamphetamine, also in
violation of Article 112a.”


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                   United States v. Chen, No. ACM S32447


other than the 21–22 August 2016 incident. As the military judge reviewed the
new PTA with Appellant, the following colloquy took place:
       MJ [Military Judge]: Okay, trial counsel, looking at this, it uses
       kind of an awkward construction, but the plea, it is clear that
       the intent of the PTA is that the accused would plea to a single
       possession of heroin, as opposed to divers introduction in Speci-
       fication 5, and to a single possession of methamphetamine, as
       opposed to divers introduction in Specification 6 and that was
       the effect of the plea. His plea didn’t use this exact language with
       exceptions, but do you believe that the plea as it was given, is
       substantially in compliance with the PTA that you have entered
       into?
       TC [Trial Counsel]: Yes, Your Honor.
       MJ: Is that your understanding as well defense counsel?
       DC: Yes, Your Honor.
       MJ: Airman Chen, is that your understanding, that even though
       the plea that the actual words that your counsel used in an-
       nouncing your plea differs slightly from the language here that
       amounted to the same thing, and that your plea still complies
       with the pretrial agreement in your case?
       ACC: Yes, sir.
    In accordance with his pleas, the military judge found Appellant guilty of
the lesser included offenses of wrongful possession of heroin and methamphet-
amine, without excepting the “on divers occasions” language of either specifi-
cation. He also found Appellant guilty of the other specifications and the
charges. The military judge sentenced Appellant to a bad-conduct discharge,
confinement for nine months, reduction to the grade of E-1, and a reprimand.
    After trial, the staff judge advocate (SJA) prepared a SJAR for the conven-
ing authority which stated, inter alia, the maximum imposable sentence of the
offenses for which Appellant was convicted included a “[bad-conduct dis-
charge], confinement for 12 months, forfeiture of 2/3 pay per month for 12
months, reduction to the grade of E-1, a fine, and a reprimand.” (Emphasis
added.) The SJA recommended the convening authority approve the adjudged
sentence. A copy of the SJAR was served on Appellant and trial defense coun-
sel. The Defense did not object to the SJAR and did not submit any matters for
the convening authority’s consideration before action on the sentence. The con-
vening authority approved the sentence as adjudged.




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                   United States v. Chen, No. ACM S32447


                                II. DISCUSSION
A. Law
    A military judge’s decision to accept a guilty plea is reviewed for an abuse
of discretion. United States v. Blouin, 74 M.J. 247, 251 (C.A.A.F. 2015). “The
test for an abuse of discretion in accepting a guilty plea is whether the record
shows a substantial basis in law or fact for questioning the plea.” United States
v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014). The military judge must question
the accused under oath about the offenses to ensure there is an adequate fac-
tual basis for a guilty plea. Rule for Courts-Martial (R.C.M.) 910(e); see Article
45(a), UCMJ, 10 U.S.C. § 845(a). It is an abuse of discretion for the military
judge to accept a guilty plea without an adequate factual basis or based on an
erroneous view of the law. United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F.
2012). We look to the entire record to determine whether there is a substantial
basis to question the guilty plea. United States v. Jordan, 57 M.J. 236, 239
(C.A.A.F. 2002).
    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) (citations omitted). If the Defense does not make a timely
comment on an error in the SJAR, the error is forfeited “unless it is prejudicial
under a plain error analysis.” United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F.
2005) (citing R.C.M. 1106(f); United States v. Kho, 54 M.J. 63, 65 (C.A.A.F.
2000)). Under a plain error analysis, we assess whether: “(1) there was an er-
ror; (2) it was plain or obvious; and (3) the error materially prejudiced a sub-
stantial right.” Id. (quoting Kho, 54 M.J. at 65). To meet the third prong of the
plain error test in the context of a post-trial SJAR error, whether that error is
preserved or is otherwise considered under the plain error doctrine, we must
find “some colorable showing of possible prejudice.” Id. at 436–37 (quoting Kho,
54 M.J. at 65).
B. Analysis
   1. Improvident Guilty Plea
    It is unclear from the record why trial defense counsel did not except the
words “on divers occasions” when she announced Appellant’s revised pleas of
“not guilty” to wrongful introduction of heroin and methamphetamine, but
“guilty” to the lesser included offenses of possession. Trial defense counsel ex-
cepted the “divers” language when she announced the original pleas. The sec-
ond, revised PTA also clearly authorized Appellant to except these words. The
revised stipulation of fact only identified the single instance of possession of
heroin and methamphetamine on 22 August 2016 to support these specifica-
tions, and the military judge’s inquiry with Appellant explored only that single
incident.


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                     United States v. Chen, No. ACM S32447


    The military judge specifically addressed the discrepancy with trial coun-
sel, trial defense counsel, and Appellant, noting the “clear . . . intent of the PTA
is that the accused would plea to a single possession of heroin . . . and to a
single possession of methamphetamine . . . .” Evidently, the military judge’s
primary concern was to confirm with the parties that the announced plea was
consistent with the revised PTA. The parties agreed that it was. However, in
light of the military judge’s failure to except the “on divers occasions” language
in his findings, Appellant’s pleas raise other significant concerns that we can-
not overlook.
    The net effect of the pleas and findings was that Appellant pleaded to and
was convicted of divers possession of heroin and methamphetamine where the
record supported a finding of only a single possession of each. Thus, the mili-
tary judge abused his discretion by accepting Appellant’s plea to divers posses-
sion of heroin and methamphetamine. See Weeks, 71 M.J at 46. In accordance
with Article 66(c), UCMJ, 10 U.S.C. § 866(c), we are bound to approve only
such findings as we find “correct in law and fact and determine[ ], on the basis
of the entire record, should be approved.” Accordingly, we set aside the findings
of guilt with respect to the words “on divers occasions” with respect to both
Specification 5 and Specification 6 of Charge I.
    Having modified the findings, we next consider whether we can reassess
the sentence. We have “broad discretion” when reassessing sentences. United
States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). The United States
Court of Appeals for the Armed Forces has repeatedly held that if we “can de-
termine to [our] satisfaction that, absent any error, the sentence adjudged
would have been of at least a certain severity, then a sentence of that severity
or less will be free of the prejudicial effects of error . . . .” United States v. Sales,
22 M.J. 305, 308 (C.M.A. 1986). Thus, our analysis is based on a totality of the
circumstances with consideration of the following factors: dramatic changes in
the penalty landscape and exposure; the forum; whether the remaining of-
fenses capture the gravamen of the criminal conduct; whether significant or
aggravating circumstances remain admissible and relevant; and whether the
remaining offenses are the type that we as appellate judges have experience
and familiarity with to reliably determine what sentence would have been im-
posed at trial. Winckelmann, 73 M.J. at 15–16. We find the factors weigh heav-
ily in favor of reassessment rather than rehearing, and we are confident the
military judge would have imposed the same adjudged sentence for the modi-
fied findings.




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                   United States v. Chen, No. ACM S32447


   2. SJAR Error
   Because Appellant did not object to the SJAR, we test for plain error. Scalo,
60 M.J. at 436. R.C.M. 1003(b)(3) provides, in pertinent part:
       Any court-martial may adjudge a fine in lieu of or in addition to
       forfeitures. In the case of a member of the armed forces, sum-
       mary and special courts-martial may not adjudge any fine or
       combination of fine and forfeitures in excess of the total amount
       of forfeitures that may be adjudged in that case.
    The maximum forfeiture that a special court-martial may adjudge is two-
thirds of the accused’s pay per month for 12 months. R.C.M. 201(f)(2)(B)(i).
Thus, Appellant could not have been sentenced to a fine in addition to forfei-
ture of two-thirds pay per month for 12 months. The SJA’s advice that the
maximum punishment could include both forfeiture of two-thirds of Appel-
lant’s pay per month for 12 months as well as a fine was therefore plainly er-
roneous. See United States v. Books, No. ACM S32369, 2017 CCA LEXIS 226,
at *7 (A.F. Ct. Crim. App. 31 Mar. 2017).
    However, we readily find no colorable showing of possible prejudice. The
Government did not seek a fine in this case, and neither a fine nor any forfei-
ture of pay was adjudged. Appellant requested no clemency and submitted no
matters for the convening authority’s consideration in taking action on the sen-
tence. Moreover, Appellant raised no assignments of error before this court.
We find no basis to conclude the erroneous inclusion of the possibility of a fine
in the recitation of the maximum possible punishment in this case influenced
the convening authority to Appellant’s detriment. Therefore, no relief is war-
ranted on this basis.

                               III. CONCLUSION
    The approved findings, as modified, and sentence, as reassessed, are cor-
rect in law and fact, and no other error materially prejudicial to the substantial
rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§
859(a), 866(c). Accordingly, the findings, as modified, and the sentence, as re-
assessed, are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court



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