          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                              Airman Basic CASEY M. CROWDER
                                    United States Air Force

                                              ACM S32315

                                               5 May 2016

         Sentence adjudged 30 March 2015 by SPCM convened at Robins Air Force
         Base, Georgia. Military Judge: Lynn Watkins (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 52 days, and
         forfeiture of $1031.00 pay per month for 3 months.

         Appellate Counsel for Appellant: Captain Annie W. Morgan.

         Appellate Counsel for the United States:                Lieutenant Colonel Roberto
         Ramirez and Gerald R. Bruce, Esquire.

                                                  Before

                             ALLRED, TELLER, and ZIMMERMAN
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



TELLER, Senior Judge:

       Appellant was convicted, in accordance with his pleas, by a military judge sitting
alone of desertion, absence without leave, and wrongful use of a controlled substance in
violation of Articles 85, 86 and 112a, UCMJ, 10 U.S.C. §§ 885, 886, 912a. The court
sentenced him to a bad-conduct discharge, 3 months of confinement, and forfeiture of
$1,031.00 pay per month for 3 months. The convening authority reduced the confinement
to 52 days, but otherwise approved the adjudged sentence.
       Appellant argues that his guilty plea to using oxymorphone was improvident and
that the staff judge advocate’s recommendation failed to properly advise the convening
authority resulting in the convening authority’s failure to honor the pretrial agreement.
Finding no error that materially prejudices a substantial right of Appellant, we affirm the
findings and sentence.

                                         Background

        Appellant was a first-term Airman who never completely adapted to the Air Force.
After reporting to his first assignment, he often returned to his nearby hometown to be with
his friends and family. While back in his hometown, he misused Vicodin with a friend on
two occasions by crushing a pill and snorting the resulting powder. He contends he used
Vicodin to relieve his feelings of stress. His Vicodin abuse was detected during a “dorm
sweep” urinalysis inspection shortly after the first of the two incidents. His second use was
detected in a follow-up inspection when the initial positive result came back. In between
his two instances of drug use, Appellant also absented himself from work for a day without
authority. When Appellant became aware he was about to be apprehended, he fled the
installation, intending to never return. He was apprehended by civilian authorities near his
hometown approximately 19 days later. Although he was confined in the same civilian
facility from his apprehension up until trial, the first day was under civilian authority while
the remainder was at the request of military authorities.

        As part of Appellant’s pretrial agreement, the convening authority agreed to credit
all of Appellant’s pretrial confinement against any adjudged sentence, but the record shows
some confusion as to how that credit would be applied. As noted above, the adjudged
sentence included 90 days confinement. The parties agreed at trial that Appellant was
entitled to a total of 38 days credit for pretrial confinement. When the military judge
inquired whether the quantum portion of the pretrial agreement contained anything other
than a limitation on sentence, Appellant’s trial defense counsel answered “[n]othing that
can’t be enforced by the convening authority, Your Honor.” She then clarified that the
conditions consisted of the pretrial confinement credit provision as well as an agreement
to refer the case to a special court-martial. Later, after the announcement of sentence, in
reviewing how the pretrial agreement would affect the adjudged sentence, the military
judge stated that the convening authority could approve the adjudged sentence without
modification, and both the Government and trial defense counsel agreed. Despite the
agreement that Appellant was entitled to credit, the confinement order did not reflect any
credit for pretrial confinement against the adjudged sentence. In his post-trial advice, the
staff judge advocate advised the convening authority, “In accordance with the pretrial
agreement, I recommend you approve only so much of the sentence as calls for a bad
conduct discharge, confinement for 52 days and forfeitures of $1,031.00 pay per month for
3 months” without explicitly stating that the modification of the adjudged confinement was
intended to provide the agreed-upon credit for pretrial confinement. The staff judge
advocate’s recommendation was served on Appellant and Appellant’s trial defense counsel


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on 30 April 2015. Appellant submitted a timely clemency request, asserting no legal error
and requesting only that the convening authority disapprove the bad-conduct discharge.
The convening authority approved a sentence of a bad-conduct discharge, confinement for
52 days, and forfeitures of $1,031.00 pay per month for 3 months. The action omitted any
mention of administrative credit for pretrial confinement and did not explicitly state that
the reduction of the adjudged confinement was intended to provide the agreed-upon credit
for pretrial confinement.

                        Providence of Plea to Use of Oxymorphone

       Appellant now contends his guilty pleas to the specifications of drug use are
improvident because the Vicodin pills he ingested did not contain oxymorphone, the sole
controlled substance alleged in Charge III, Specification 1 and one of two controlled
substances alleged in Charge III, Specification 2.

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion and review questions of law arising from the guilty plea de novo. United States
v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “In doing so, we apply the substantial
basis test, looking at whether there is something in the record of trial, with regard to the
factual basis or the law, that would raise a substantial question regarding the appellant’s
guilty plea.” Id. Appellant maintains the burden to demonstrate a substantial basis for
questioning the plea. United States v. Negron, 60 M.J. 136, 141 (C.A.A.F. 2004).

        The military judge may consider both the stipulation of fact and the inquiry with the
appellant when determining if the guilty plea is provident. United States v. Hines, 73 M.J.
119, 124 (C.A.A.F. 2014). “In reviewing the providence of [the a]ppellant’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) (citing
United States v. Hardeman, 59 M.J. 389, 391 (C.A.A.F. 2004)). A military judge abuses
her discretion when accepting a plea if she 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, 250–51 (C.M.A. 1969). This is an area in which the military judge
is entitled to significant deference, given the often undeveloped factual record in such cases
as compared to that of a litigated trial. Inabinette, 66 M.J. at 322.

        Article 112a, UCMJ, is entitled “Wrongful use, possession, etc., of controlled
substances” and states, in pertinent part, “Any person . . . who wrongfully uses . . . a
substance described in subsection (b) shall be punished as a court-martial may direct.”
Subsection (b) lists three categories of covered substances: (1) those listed in the text of
the article; (2) those found on a schedule as prescribed by the President; and, as applicable
here, (3) those found on Schedules I through V of the Controlled Substances Act. See
United States v. Paul, 73 M.J. 274, 277 (C.A.A.F. 2014).




                                              3                                   ACM S32315
        The Manual for Courts-Martial delineates two elements for this offense: (1) use of
a controlled substance, (2) that is wrongful. Manual for Courts-Martial, United States
(MCM), pt. IV, ¶ 37.b.(2) (2012 ed.). The President has defined “use” as “inject[ing],
ingest[ing], inhal[ing], or otherwise introduc[ing] into the human body, any controlled
substance.” MCM, pt. IV, ¶ 37.c.(10). To be convicted of wrongful use of a controlled
substance, the accused must know of the presence of the controlled substance and know of
its contraband nature. MCM, pt. IV, ¶¶ 37.c.(5), (10); United States v. Mance, 26 M.J. 244,
253–54 (C.M.A. 1988).

        Here, Appellant admitted that he knowingly ingested Vicodin and did so knowing
of its contraband nature. This admission would undoubtedly be sufficient to sustain a guilty
plea to using oxycodone, an ingredient in Vicodin. However, the question before us is
whether his admission is sufficient to sustain his plea to using a different controlled
substance, oxymorphone, which is not present in Vicodin itself, but is a direct metabolic
result of ingesting oxycodone. We find that it is. See United States v. Honeycutt, ACM
S32214 (A.F. Ct. Crim. App. 26 August 2015) (unpub. op.).

       The accused need not “have been aware of the precise identity of the controlled
substance [to be guilty of wrongful use], so long as he is aware that it is a controlled
substance.” Mance, 26 M.J. at 254. He need not know “the exact pharmacological identity
of the substance” he used so long as he knew his use of the substance he ingested was
prohibited by law. United States v. Stringfellow, 32 M.J. 335, 336 (C.M.A. 1991). In light
of that, if an accused believes he used controlled substance X when, in fact, he used
controlled substance Y, he can be convicted of wrongfully using controlled substance Y as
he had adequate knowledge to establish wrongfulness. Id.; Mance, 26 M.J. at 254.

      Under that authority, a guilty plea would undoubtedly be provident for wrongful use
of oxymorphone if Appellant snorted or orally consumed oxymorphone itself when he
erroneously thought he was using a different controlled substance. Although the presence
of oxymorphone in Appellant’s body was related to a metabolic process rather than a
mistake as to the ingredients of Vicodin, we conclude similar reasoning applies to sustain
Appellant’s guilty plea to wrongfully using oxymorphone even though he only actually
knew he was using the contraband substance Vicodin.

       The concepts found within Mance and Stringfellow were explained to Appellant
during the providence inquiry. He made sufficient admissions to satisfy the elements of
wrongful use of a controlled substance—he knowingly ingested a substance listed in
Schedule II of the Controlled Substances Act, and his use of that substance was wrongful.
His colloquy with the military judge demonstrated that he understood factually and legally
why his conduct was unlawful. He also clearly understood how the urinalysis results
related to his use of Vicodin and he did not contend at trial, nor does he now, that he was
not guilty of using controlled substances. He also admitted that oxymorphone is itself a
controlled substance, in addition to being a metabolite of oxycodone, and agreed he was


                                             4                                   ACM S32315
guilty of knowingly using Vicodin and knowing its contraband nature. Under these
circumstances, we find Appellant’s guilty plea to using oxymorphone provident.

                      Application of Credit for Pretrial Confinement

       Appellant also asserts that the staff judge advocate’s recommendation (SJAR) failed
to properly advise the convening authority with regard to pretrial confinement credit. He
suggests that this court should use its plenary authority under Article 66, UCMJ, 10 U.S.C.
§ 866, to independently credit Appellant for the 38 days of pretrial confinement by
approving only 14 days confinement, citing United States v. Wheelus, 49 M.J. 283
(C.A.A.F. 1998).

        Proper completion of post-trial processing is a question of law, which we review de
novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). Failure to timely comment
on matters in the SJAR, to include matters attached to it, waives the issue unless there is
plain error. Rule for Courts-Martial (R.C.M.) 1106(f)(6); United States v. Scalo, 60 M.J.
435, 436 (C.A.A.F. 2005). Under a plain error analysis, the appellant bears the burden of
showing: (1) there was an error, (2) it was plain or obvious, and (3) the error materially
prejudiced a substantial right of the appellant. Kho, 54 M.J. at 65. Although the threshold
for establishing prejudice in this context is low, the appellant must nonetheless make at
least some “colorable showing of possible prejudice.” Scalo, 60 M.J. at 437.

       When reviewing post-trial errors, we recognize the convening authority is an
appellant’s “best hope for sentence relief.” United States v. Lee, 50 M.J. 296, 297
(C.A.A.F. 1999) (quoting United States v. Bono, 26 M.J. 240, 243 n.3 (C.M.A. 1988)).
“Because of the highly discretionary nature of the convening authority’s action on the
sentence, we will grant relief if an appellant presents ‘some colorable showing of possible
prejudice.’” Kho, 54 M.J. at 65 (quoting United States v. Wheelus, 49 M.J. 283, 289
(C.A.A.F. 1998)); see also Scalo, 60 M.J. at 435.

       Appellant argues that two errors prejudiced him. First, he asserts that the
confinement order failed to properly reflect Appellant’s credit for pretrial confinement as
required under Air Force regulations. Second, he asserts that the SJAR did not include a
statement of the nature and duration of pretrial confinement as required by R.C.M.
1106(d)(3)(D) (2008).

        We find no basis for relief in either of the specific errors asserted by Appellant.
Assuming the confinement order did not comply with Air Force Regulations, we decline
to grant relief because there is no evidence Appellant exhausted his administrative
remedies. See United States v. Wilson, 503 U.S. 329, 335 (1992) (stating that prisoners are
entitled to judicial review of administrative application of pretrial confinement credit after
exhaustion of administrative remedies). We also find that the provision of R.C.M. 1106
cited by Appellant was superseded by the version of R.C.M. 1106 applicable at the time of



                                              5                                   ACM S32315
Appellant’s trial.1 See R.C.M. 1106(d)(3) (2012). The applicable rule required the staff
judge advocate to

                 provide the convening authority with a copy of the report of
                 results of the trial, setting forth the findings, sentence, and
                 confinement credit to be applied; a copy or summary of the
                 pretrial agreement, if any; any recommendation for clemency
                 by the sentencing authority, made in conjunction with the
                 announced sentence; and the staff judge advocate’s concise
                 recommendation.

Id. The SJAR in this case met these requirements.

        More broadly, however, it is clear that the application of pretrial confinement credit
in this case did not comply with our superior court’s guidance and regulatory requirements
on the matter. In United States v. Spaustat, the Court of Appeals for the Armed Forces
specifically addressed the potential confusion surrounding application of pretrial
confinement and other credits in cases in which there is a pretrial agreement.

                 [I]n order to avoid further confusion and to ensure meaningful
                 relief in all future cases after the date of this decision, this
                 Court will require the convening authority to direct application
                 of all confinement credits for violations of Article 13 or RCM
                 305 and all Allen credit against the approved sentence, i.e., the
                 lesser of the adjudged sentence or the sentence that may be
                 approved under the pretrial agreement, as further reduced by
                 any clemency granted by the convening authority, unless the
                 pretrial agreement provides otherwise.

57 M.J. 256, 263–64 (C.A.A.F. 2002). In compliance with this holding, Air Force
Instruction (AFI) 51-201, Administration of Military Justice (6 June 2013), mandates that
pretrial confinement credit “must be ordered in the convening authority’s initial action”
and provides specific sample language for a convening authority to do so. AFI 51-201, ¶
9.4.1, Figure 9.11. We find that the convening authority’s failure to comply with Spaustat
and AFI 51-201 was error and that the error was plain and obvious.

       Despite the error in the convening authority’s action, we find Appellant was not
prejudiced. In light of the entire record, we are convinced beyond a reasonable doubt that
Appellant received the benefit of his bargain, and that disapproving an additional 38 days
of confinement would be an inappropriate windfall. We note that Appellant did not request
any reduction in confinement in his clemency request that would suggest an alternative

1
 The cited language appeared in the 2008 edition of the Manual, but was revised in 2008 by Executive Order
13,468. See Exec. Order No. 13,468, 73 Fed. Reg. 43,831 (July 28, 2008).


                                                        6                                          ACM S32315
basis for the convening authority’s reduction of the adjudged confinement by exactly 38
days. Nor did Appellant object to the omission of language directing credit for pretrial
confinement in the convening authority’s action. The record does not show, nor does
Appellant assert, that he sought administrative relief when he reached the minimum release
date he now suggests he was entitled to. We are convinced that his failure to pursue, at
any of those opportunities, the additional credit he now seeks reflects the understanding of
all the parties to the trial that the convening authority intended to honor the pretrial
agreement by approving 38 days fewer than the adjudged sentence rather than directing 38
days of administrative credit. Although that approach was not in compliance with Spaustat
and AFI 51-201, it achieved substantially the same result.2 The error in this case did not
materially prejudice a substantial right of Appellant, and no further reduction in the
approved sentence is warranted.

                                                  Conclusion

       The approved findings and sentence are correct in law and fact, and no 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 approved findings and
sentence are AFFIRMED.




                 FOR THE COURT


                 LEAH M. CALAHAN
                 Clerk of the Court




2
  There is no evidence in this case that Appellant was deprived of any additional administrative credit or access to
other advantageous programs that would have been available had the convening authority complied with Air Force
Instruction 51-201, Administration of Military Justice (6 June 2013). Accordingly, we express no opinion on whether
such deprivation would materially prejudice a substantial right.


                                                         7                                            ACM S32315
