          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                            Master Sergeant MARCUS K. LINN
                                  United States Air Force

                                             ACM 38451

                                          15 October 2014

         Sentence adjudged 1 August 2013 by GCM convened at Andrews Air Force
         Base-Naval Air Facility Washington, Maryland. Military Judge: Francisco
         Mendez (sitting alone).

         Approved Sentence: Dishonorable discharge, confinement for 28 months,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant: Major Christopher D. James.

         Appellate Counsel for the United States: Major Roberto Ramírez;
         Captain Matthew J. Neil; and Gerald R. Bruce, Esquire.

                                                 Before

                              ALLRED, HECKER, and TELLER
                                 Appellate Military Judges

                                   OPINION OF THE COURT

                   This opinion is subject to editorial correction before final release.



ALLRED, Chief Judge:

       A general court-martial composed of a military judge convicted the appellant,
pursuant to his pleas, of wrongfully receiving child pornography, wrongfully possessing
child pornography, and wrongfully possessing child erotica, in violation of
Article 134, UCMJ, 10 U.S.C. § 934. The adjudged and approved sentence consisted of a
dishonorable discharge, confinement for 28 months, forfeiture of all pay and allowances,
and reduction to E-1.
       On appeal, the appellant argues: (1) he is entitled to a new action where the staff
judge advocate (SJA) failed to advise the convening authority of two overseas duty
assignments; and (2) his plea of guilty was improvident due to his commander’s
involvement in a search and seizure at his apartment.1 Finding no error that materially
prejudices a substantial right of the appellant, we affirm the approved findings and
sentence.

                                      Incorrect Personal Data Sheet

       The personal data sheet (PDS) admitted during trial as Prosecution Exhibit 2
indicated that the appellant had served seven overseas assignments. For reasons
unknown, however, the PDS submitted to the convening authority with the staff judge
advocate’s recommendation (SJAR) listed only five overseas assignments, omitting
deployments by the appellant to the Persian Gulf for six months in 1991 (while he was
enlisted in the United States Army) and to Saudi Arabia for 150 days in late 2007 and
early 2008. Although the SJAR and erroneous PDS were served on the defense, the
appellant raised no objection prior to action by the convening authority.

        Proper completion of post-trial processing is a question of law which this court
reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004)
(citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). Failure to comment in a
timely manner on matters in the SJAR, or on matters attached to the SJAR, forfeits2 any
later claim of error in the absence of plain error. Rule for Courts-Martial 1106(f)(6);
United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005). “To prevail under a plain error
analysis, [the appellant bears the burden of showing] that: ‘(1) there was an error; (2) it
was plain or obvious; and (3) the error materially prejudiced a substantial right.’” Scalo,
60 M.J. at 436 (quoting Kho, 54 M.J. at 65).

       In this case, the SJAR included a PDS that incorrectly stated the appellant had
only five rather than seven overseas assignments. This was plain or obvious error.3
1
  The second assignment of error is presented pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
2
  Rule for Courts-Martial 1106(f)(6) and United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005) both indicate that
waiver occurs when counsel fails to comment on matters in the staff judge advocate’s recommendation. However,
our superior court’s decision in United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) recognizes that military
courts had failed to “consistently distinguish between the terms ‘waiver’ and ‘forfeiture.’” Gladue held that waiver
is the “intentional relinquishment or abandonment of a known right,” which precludes appellate review of an issue,
while forfeiture is “the failure to make the timely assertion of a right” leading to plain error review on appeal
(quoting United States v. Olano, 507 U.S. 725, 733 (1993)) (internal quotation marks omitted). Following Gladue,
the term “forfeiture” should generally characterize the effect of a failure to timely comment on matters in the staff
judge advocate’s recommendation. See United States v. Parker, __ M.J. __ ACM 38384 (A.F. Ct. Crim. App.
15 October 2014) (stating that the appellant forfeited, rather than waived, a claim that erroneous information was
attached to the staff judge advocate’s recommendation).
3
  Prior to 2010, Rule for Courts-Martial 1106(d)(3)(C) expressly stated that the staff judge advocate must provide
the convening authority with a “summary of the accused’s service record.” See Manual for Courts-Martial,
United States (MCM), Part II-150 (2008 ed.). In 2010, the rule was modified to eliminate that requirement, although
the Drafter’s Analysis states this was done to “allow[] for the use of personnel records of the accused instead.”


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Thus, the only question before us “is whether the [erroneous PDS] resulted in material
prejudice to Appellant’s substantial right to have a request for clemency judged on the
basis of an accurate record.” United States v. Wellington, 58 M.J. 420, 427 (C.A.A.F.
2003). Because of the highly discretionary nature of the convening authority’s action on
a sentence, we may grant relief if an appellant presents “some colorable showing of
possible prejudice” affecting his opportunity for clemency. Kho, 54 M.J. at 65; (quoting
United States v. Wheelus, 49 MJ 283, 289 (1998)).

       In the present case, the maximum punishment based upon the appellant’s guilty
plea included a dishonorable discharge and confinement for 20 years and 4 months. The
appellant and the convening authority had concluded a pretrial agreement with a
confinement limitation of 4 years, and the adjudged and approved confinement was only
28 months. The appellant was convicted of serious offenses involving multiple images of
child pornography and child erotica. We see no reasonable possibility that inclusion of
the two deployments in the PDS would have influenced the convening authority to act
favorably in the appellant’s behalf. We do not find any “colorable showing of possible
prejudice” from the erroneous PDS. The assignment of error is without merit.

                                     Providence of Guilty Plea

     The appellant asserts that his plea was improvident due to activity by his
commander during a search of his off-base apartment.

       “A military judge’s decision to accept a guilty plea is reviewed for an abuse of
discretion.” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). “In reviewing
the providence of Appellant’s guilty pleas, we consider his colloquy with the military
judge, as well any inferences that may reasonably be drawn from it.”
United States v. Carr, 65 M.J. 39, 41 (C.A.A.F. 2007). A military judge abuses this
discretion when accepting a plea if he does not ensure the accused provides an adequate
factual basis to support the plea during the providence inquiry. See United States v. Care,
40 C.M.R. 247 (C.M.A. 1969). This is an area in which the military judge is entitled to
much deference. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F 2008).

       To determine if a guilty plea is provident, we look at whether the record presents a
substantial basis in law or fact for questioning it. Id.; United States v. Prater,
32 M.J. 433, 436 (C.M.A. 1991). At trial, the military judge must (1) ensure the accused
understands the facts that support his guilty plea (what he did), (2) be satisfied the
accused understands the law applicable to his acts (why he is guilty), and (3) be satisfied
the appellant actually is guilty. See United States v. Medina, 66 M.J. 21, 26 (C.A.A.F.
2008) (citing Care, 40 C.M.R. at 250–51).


MCM, A21-88 (2012 ed.). Regardless of the language of the rule, the information provided to the convening
authority must be correct.


                                                   3                                         ACM 38451
       In a declaration attached to his appeal, the appellant claims that, in reviewing the
record of trial subsequent to his court-martial, he began to recall previously-forgotten
events which significantly alter the complexion of his case. When agents from the
Air Force Office of Special Investigations (AFOSI) searched his apartment for evidence
of child pornography, his unit commander was present. The appellant claims to now
remember the commander assisting the AFOSI during the search by looking for a power
cord to a laptop they had located.

      The appellant indicates he found this behavior by his commander “strange yet
shocking.” He suggests further he was so disturbed by this action that he lost clarity of
thought and will to resist. The appellant asserts:

              Had I remembered [my commander’s involvement] prior to
              the trial, I would have included it in my defense and it would
              have influenced whether or not to plead guilty. Had this
              incident never happened during the search and seizure, I
              strongly believe I would have maintained the right frame of
              mind to fully comprehend what was going on and the
              seriousness that goes with it. Also, when read my rights, I
              would have been able to think with a clear rational mind to
              choose what’s best for me given the current circumstances I
              was in/facing.

        We are not persuaded. Even if we assume that the commander behaved as the
appellant claims, and even if we assume that this behavior were somehow improper, any
nexus between the commander’s assistance in locating a power cord and the appellant’s
ultimate decision to plead guilty is tenuous at best. At trial, the military judge carefully
established that the appellant’s plea was free and voluntary. He ensured the appellant
understood the facts that supported his guilty plea, that he understood the law applicable
to his acts, and that he actually was guilty. We find the plea provident. The assignment
of error is without merit.

                                        Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).




                                             4                                    ACM 38451
Accordingly, the approved findings and sentence are AFFIRMED.



            FOR THE COURT


            STEVEN LUCAS
            Clerk of the Court




                                        5                       ACM 38451
