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

                                No. ACM S32561
                           ________________________

                              UNITED STATES
                                  Appellee
                                        v.
                     Emmanuel J. CALDWELL
           Airman First Class (E-3), U.S. Air Force, Appellant
                            ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 10 December 2019
                            ________________________

Military Judge: Thomas J. Alford.
Approved sentence: Bad-conduct discharge, confinement for 21 days, re-
duction to E-1, and a reprimand. Sentence adjudged 6 November 2018
by SpCM convened at Ellsworth Air Force Base, South Dakota.
For Appellant: Captain M. Dedra Campbell, USAF; Joseph Grossman
(legal intern). 1
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel Brian C. Mason, USAF; Major Thomas C. Franzinger, USAF;
Mary Ellen Payne, Esquire.
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
Judge D. JOHNSON delivered the opinion of the court, in which Senior
Judge MINK and Judge LEWIS joined.
                           ________________________

    This is an unpublished opinion and, as such, does not serve as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


1Mr. Grossman was at all times supervised by an attorney admitted to practice before
this court.
                     United States v. Caldwell, No. ACM S32561


D. JOHNSON, Judge:
    A special court-martial composed of a military judge sitting alone convicted
Appellant, in accordance with his pleas and a pretrial agreement (PTA), of one
specification of drunken operation of a vehicle and three specifications of
wrongful use of a controlled substance (marijuana and cocaine), 2 in violation
of Articles 111 and 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 911, 912a. 3 The adjudged and approved sentence consisted of a bad-conduct
discharge, confinement for 21 days, reduction to the grade of E-1, and a repri-
mand. The PTA had no impact on the convening authority’s ability to approve
the adjudged sentence. 4 Appellant requested deferment of the adjudged reduc-
tion in grade until action, which was denied by the convening authority. 5
    On appeal, the sole issue raised by Appellant is whether he is entitled to
new post-trial processing because the staff judge advocate’s recommendation
(SJAR) failed to correctly advise the convening authority of the maximum im-
posable sentence and his ability to disapprove the adjudged reprimand. Find-
ing no error materially prejudicial to a substantial right of Appellant, we affirm
the findings and sentence.

                                    I. BACKGROUND
    Following a verbal altercation with his girlfriend, Appellant left his resi-
dence in Rapid City, South Dakota in his vehicle. Appellant was stopped by
officers from the Rapid City police department and subsequently arrested for
driving under the influence after admitting he was too intoxicated to drive.
Approximately one week later, Appellant became “sad” after his girlfriend


2   Appellant was convicted of two specifications of wrongful use of cocaine.
3All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2016
ed.).
4The PTA between Appellant and the convening authority provided the latter would
approve no confinement in excess of five months, but included no other limitations on
the sentence he could approve.
5We note that the convening authority’s memorandum denying Appellant’s request for
deferment of the reduction in rank until action failed to articulate the reasons for the
denial as required by R.C.M. 1101(c)(3). See United States v. Jalos, No. ACM 39138,
2017 CCA LEXIS 607, at *5–6 (A.F. Ct. Crim. App. 5 Sep. 2017) (unpub. op.) (citations
omitted). However, our review of the record of trial reveals no colorable showing of
possible prejudice as a result of the convening authority’s error, see id. at *6–7, and we
conclude that no relief is warranted.

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                  United States v. Caldwell, No. ACM S32561


stated she might move and take their two children with her. To compose him-
self, Appellant decided to go for a walk and contacted an acquaintance to get
“bud and coke” because “[he] needed to feel.” Appellant smoked marijuana and
inhaled four or five lines of cocaine the next morning. Coincidentally, Appel-
lant’s squadron commander had ordered a unit urinalysis inspection that day.
After testing positive on the urinalysis, Appellant admitted to investigators
from security forces that he used cocaine and marijuana. A week and a half
later, Appellant tested positive a second time for the primary metabolite of
cocaine after inhaling the remaining cocaine from his prior purchase.
    Following Appellant’s trial, and after he was released from confinement,
the staff judge advocate (SJA) prepared the SJAR to guide the convening au-
thority’s action on the results of the court-martial. The SJAR provided, inter
alia, the following advice:
       The maximum imposable sentence for the offenses of wrongful
       use of controlled substances and drunken operation of a vehicle
       [for] which the accused was convicted is a bad conduct discharge,
       confinement for one year, reduction to E-1, total forfeitures, and
       a fine.
       . . . You do have the authority to disapprove, commute, or sus-
       pend in whole or in part the confinement and/or reduction in
       rank.
(Emphasis added). The SJAR concluded with a recommendation that the con-
vening authority “approve the reprimand, reduction to the grade of E-1, con-
finement for 21 days, and bad conduct discharge, as adjudged.”
   In accordance with Rule for Courts-Martial (R.C.M.) 1106(f)(1), trial de-
fense counsel was served with a copy of the SJAR prior to submitting matters
on behalf of Appellant for the convening authority’s consideration pursuant to
R.C.M. 1105. Trial defense counsel did not object to any portion of the SJAR.
Trial defense counsel’s memorandum requested that the convening authority
disapprove the reduction to E-1. 6
    The SJA subsequently prepared an addendum to the SJAR that advised,
inter alia, that the convening authority must consider the matters submitted
by the Defense and again recommended approval of the sentence as adjudged.
The convening authority approved the adjudged sentence. Appellant now con-
tends the SJAR was erroneous in two respects: first, it misstated the maximum

6 Trial defense counsel misstated the Appellant’s sentence by omitting the adjudged
reprimand.

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                  United States v. Caldwell, No. ACM S32561


punishment by including “total forfeitures and a fine,” and second, it failed to
correctly advise the convening authority regarding his authority to disapprove
the adjudged reprimand. Appellant further argues that the errors were preju-
dicial because the advice concerning the maximum punishment misrepre-
sented the maximum punishment by a “wide margin” and had the convening
authority been correctly advised he may have granted Appellant’s request to
disapprove the rank reduction. We are not persuaded.

                                 II. DISCUSSION
A. Law
    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.
(quoting Scalo, 60 M.J. at 436).
    To meet the third prong of the plain error test “in the context of a post-trial
recommendation error, whether that error is preserved or is otherwise consid-
ered under the plain error doctrine, an appellant must make ‘some colorable
showing of possible prejudice.’” Scalo, 60 M.J. at 436–37 (quoting United States
v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). “The low threshold for material preju-
dice with respect to an erroneous post-trial recommendation . . . is designed to
avoid undue speculation as to how certain information might impact the con-
vening authority’s exercise of such broad discretion.” Id. at 437 (citation omit-
ted). While the threshold is low, “there must be some colorable showing of pos-
sible prejudice.” Id. (citing Kho, 54 M.J. at 65). Whether an appellant was prej-
udiced by a mistake in the SJAR generally requires consideration of “whether
the convening authority ‘plausibly may have taken action more favorable to’
the appellant had he or she been provided accurate or more complete infor-
mation.” United States v. Kyc, No. ACM S32391, 2017 CCA LEXIS 376, at *6
(A.F. Ct. Crim. App. 30 May 3017) (unpub op.) (citing United States v. Johnson,
26 M.J. 686, 689 (A.C.M.R. 1988)) (additional citation omitted).
   Because Appellant did not object to the SJAR, we test the allegedly im-
proper advice for plain error. We consider each asserted error in turn.

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                  United States v. Caldwell, No. ACM S32561


B. Analysis
   1. Misstatement of the Maximum Punishment
   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 total forfeitures. Even if the
SJAR had been accurate with regard to the jurisdictional maximum for forfei-
tures in a special court-martial, the Appellant could not have received forfei-
ture of two-thirds pay per month for 12 months and a fine. See R.C.M.
1003(b)(3).
    However, Appellant has not made a colorable showing of possible prejudice
arising from this error. At trial, the military judge did not include the possibil-
ity of a fine when he informed Appellant of the maximum punishment he could
adjudge as a result of Appellant’s guilty plea. The military judge did not ad-
judge a fine, nor did he adjudge any forfeiture of pay. Thus, the convening au-
thority was not called upon to make any decisions regarding adjudged forfei-
tures or a fine when he acted upon the sentence. We are not persuaded the
misstatement of the jurisdictional maximum punishment for forfeitures and
erroneous inclusion of the possibility of a fine exaggerated the severity of Ap-
pellant’s conduct or in any way influenced the convening authority to Appel-
lant’s detriment. Because Appellant has failed to make a “colorable showing of
possible prejudice,” he is entitled to no relief.
   2. Authority to Disapprove the Adjudged Reprimand
    Assuming arguendo that it was error for the SJAR to omit the convening
authority’s ability to disapprove the reprimand and that the error was plain
and obvious, we are not persuaded that the omission in any way influenced the
convening authority to Appellant’s detriment. Further, we are not convinced
that had the convening authority been explicitly advised of his authority to
disapprove the reprimand that he would have taken any action more favorable
to Appellant. Appellant never asked the convening authority to disapprove his
reprimand, he only requested disapproval of his reduction to the grade of E-1.
Before the decision on action, the convening authority had already denied Ap-
pellant’s request to defer this same reduction in grade. Additionally, the SJAR
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                 United States v. Caldwell, No. ACM S32561


correctly advised the convening authority that he could disapprove the reduc-
tion in grade and the convening authority declined to do so. Under these cir-
cumstances, we do not find it is plausible that the convening authority may
have taken any action more favorable to Appellant had the SJAR correctly ad-
vised him of his power to also disapprove the reprimand. Because Appellant
has failed to make a colorable showing of possible prejudice, he is entitled to
no relief.

                               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). Accordingly, the find-
ings and sentence are AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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