          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                              Senior Airman JESSICA M. COMBS
                                     United States Air Force

                                              ACM S32216

                                           18 December 2014

         Sentence adjudged 3 December 2013 by SPCM convened at Holloman
         Air Force Base, New Mexico. Military Judge: Bradley A. Cleveland
         (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 5 months,
         forfeitures of $1,010.00 pay per month for 1 month, and reduction to E-1.

         Appellate Counsel for the Appellant: Captain Lauren A. Shure.

         Appellate Counsel for the United States:               Major Roberto Ramírez and
         Gerald R. Bruce, Esquire.

                                                  Before

                            MITCHELL, WEBER, and CONTOVEROS
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



MITCHELL, Senior Judge:

       The appellant providently pled guilty to a single specification of wrongful use of
ecstasy on divers occasions, in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. A
military judge sitting alone as a special court-martial sentenced the appellant to a
bad-conduct discharge, confinement for 6 months, forfeiture of $1,010 pay per month for
1 month, and reduction to E-1. Pursuant to a pretrial agreement, the convening authority
approved only 5 months of the confinement, but he approved the remainder of the
sentence as adjudged.
       The appellant asserts the following errors: (1) there are post-trial processing errors
because the two addendums to the staff judge advocate’s recommendation both fail to
mention the legal errors raised by the appellant; and (2) both addendums raise new
matters and the second addendum was never served on the appellant or her counsel. We
also consider whether the appellant’s sentence is inappropriately severe.

                                        Background

       Pursuant to a pretrial agreement (PTA), the appellant pled guilty to divers use of
ecstasy (3-4, methylenedioxymethamphetamine). The appellant admitted that she
ingested a total of three and a half pills on different occasions: before an Oktoberfest
celebration on Holloman Air Force Base; off base at a friend’s house-party in
Alamogordo, New Mexico; and while on leave in Las Vegas. She described the effect of
the ecstasy as giving her energy and making her feel “dancy.”

                                   Post-Trial Processing

       The staff judge advocate’s recommendation (SJAR) advised the convening
authority to comply with the PTA and “only approve so much of the sentence that calls
for reduction to the grade of E-1, confinement for 5 months and forfeitures of $1,010 pay
per month for 1 month.” The SJAR did not mention the bad-conduct discharge (BCD)
even though the convening authority’s ability to approve this portion of the sentence was
not limited by the PTA. In her request for clemency, the appellant and her trial defense
counsel both petitioned the convening authority not to approve the bad-conduct
discharge. Trial defense counsel specifically noted that the appellant had completed all
but two months of her sentence to confinement and that while the appellant would
appreciate a two-month reduction in confinement, “she directs her request for relief in
clemency at a set-aside of her BCD.” Each of the three letters from co-workers
specifically requested that the convening authority set aside the BCD.

        The staff judge advocate prepared an SJAR addendum on 14 February 2014. He
noted the error in omitting the BCD from his earlier recommendation. The appellant
signed a receipt for this addendum on 26 February 2014. The record does not contain a
receipt from trial defense counsel; instead it includes a memo from one of the SJA’s
paralegals that the SJAR and addendum were served on trial defense counsel. A second
addendum was prepared on 11 March 2014. This second addendum was identical to the
first with the only addition of including a draft action for the convening authority.

       The appellant now claims that she is entitled to new post-trial processing as the
addendums introduced new matters; namely, the approval of the bad-conduct discharge.
The appellant also claims that the addendums failed to comment on legal errors raised in
the clemency submission.


                                              2                                ACM S32216
        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)). 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)) (internal quotation marks omitted). The
convening authority, not a court of criminal appeals, is empowered to grant clemency for
equitable reasons. United States v. Nerad, 69 M.J. 138, 145 (C.A.A.F. 2010). “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 United States v. Scalo, 60 M.J. 435 (C.A.A.F. 2005). The appellant can prove a
colorable showing of possible prejudice by stating what, if anything, he would have
submitted to deny, counter, or explain matters submitted by the Government.
United States v. Gilbreath, 57 M.J. 57, 61 (C.A.A.F. 2002).

       Failure to comment in a timely manner on matters in the staff judge advocate’s
recommendation, or matters attached to the recommendation, forfeits1 any later claim of
error in the absence of plain error. Rule for Courts-Martial 1106(f)(6); Scalo,
60 M.J. at 436. “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). Finally, even if error occurred, such an error “does not result in an automatic return
by the appellate court of the case to the convening authority.” United States v. Green,
44 M.J. 93, 95 (C.A.A.F. 1996). “Instead, an appellate court may determine if the
accused has been prejudiced by testing whether the alleged error has any merit and would
have led to a favorable recommendation by the SJA or corrective action by the convening
authority.” Id. Although the threshold for establishing prejudice in this context is low,
the appellant must nonetheless make at least some “colorable showing of possible
prejudice in terms of how the [perceived error] potentially affected [her] opportunity for
clemency.” Scalo, 60 M.J. at 437.


1
  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), recognized that military
courts had failed to “consistently distinguish between the terms ‘waiver’ and ‘forfeiture.’” Gladue held that while
waiver is the “intentional relinquishment or abandonment of a known right,” which precludes appellate review of an
issue, forfeiture is “the failure to make the timely assertion of a right,” leading to plain error review on appeal. Id.
(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                                          ACM S32216
       Here the appellant claims there is “no evidence in the record that the appellant was
given any opportunity to address this change in the recommendation, or new matter.” We
disagree. The first addendum was served on both the appellant and her trial defense
counsel on 26 February 2014. No further post-trial processing occurred until the second
addendum was prepared on 11 March 2014. Thus the appellant and her counsel had over
10 days to respond to this alleged “new matter.” See Rule for Court-Martial 1107(f)(7).
We find no error.2

        The appellant also claims that the SJA failed to address the allegations of legal
error raised in her clemency materials. Rule for Courts-Martial 1106(d)(4) requires the
staff judge advocate to state whether corrective action on the findings or sentence should
be taken when the defense clemency submissions allege legal error. Such response “may
consist of a statement of agreement or disagreement with the matter raised by the
accused. An analysis or rationale for the staff judge advocate’s statement, if any,
concerning legal error is not required.” Rule for Courts-Martial 1106(d)(4). Both of the
addendums state that no legal errors were raised by the appellant or her counsel.
However, “if a defense allegation of legal error is presented after trial but clearly has no
merit, the accused is not entitled to relief merely because of failure by the staff judge
advocate to state specifically in his recommendation that the assigned error lacked merit.”
United States v. Hill, 27 M.J. 293, 296 (C.M.A. 1988).

       The appellant asserts that several legal errors were raised in her clemency
materials. None of the “legal errors” now identified on appeal were identified as such in
the clemency petition. Instead the appellant has extracted issues in her submission, her
counsel’s submission, or letters submitted on her behalf, and has now labelled them as
legal errors.3 We find any alleged “legal errors” to be without merit. We examine each
alleged “legal error” addressed in the clemency briefly. First, the appellant alleges that
the legal office was slow to release exculpatory material. However, the material was
provided prior to trial and the specification in question was withdrawn with prejudice as
part of the pretrial agreement. This claim is without merit. The appellant then asserts
that her generalized comments throughout the clemency petition about sentence
comparison and sentence appropriateness is an allegation of “legal error.” We find this
was not sufficiently developed to be a “legal error” as opposed to a generalized request
for clemency. Furthermore, we conduct our own analysis below on this issue and find it
to be without merit. Last, the appellant alleges that her complaints about solitary
confinement while in a civilian confinement facility alleged a legal error of violations of
the Eighth Amendment.4 Routine conditions of administrative segregation do not

2
  Air Force Instruction 51-201, Administration of Military Justice, ¶ 9.20.2.1 (6 June 2013), requires a second or
additional addendum only when the first addendum contains new matters.
3
  While not required, trial defense counsel are encouraged to clearly identify any legal errors as such in the clemency
petitions. This would aid in the advocacy of their client both at the stage of clemency to the convening authority and
on appeal when forfeiture and waiver are examined.
4
  U.S. CONST. amend. VIII.


                                                          4                                          ACM S32216
constitute cruel and unusual punishment under an Eighth Amendment analysis absent
deprivation of life’s necessities or infliction of unnecessary pain. United States v. Avila,
53 M.J. 99, 102 (C.A.A.F. 2000). We find this claim to be without merit.

                                        Sentence Appropriateness5

       This court reviews sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we] find[] correct in law and fact and
determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ,
10 U.S.C. § 866(c). “We assess sentence appropriateness by considering the particular
appellant, the nature and seriousness of the offenses, the appellant’s record of service,
and all matters contained in the record of trial.” United States v. Bare, 63 M.J. 707, 714
(A.F. Ct. Crim. App. 2006); see also United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982). Although we are accorded great discretion in determining whether a particular
sentence is appropriate, we are not authorized to engage in exercises of clemency.
Nerad, 69 M.J. at 146; United States v. Healy, 26 M.J. 394, 395–96 (C.M.A. 1988).

                        “Absent evidence to the contrary, accused’s own
                 sentence proposal is a reasonable indication of its probable
                 fairness to him.” United States v. Hendon, 6 M.J. 171, 175
                 (C.M.A. 1979) (citing United States v. Johnson,
                 41 C.M.R. 49, 50 (C.M.A. 1969)). Of course, a court-martial
                 can adjudge a sentence less than the limits in a PTA and may
                 consider sentencing factors distinct from those in front of the
                 convening authority. Id. An appellant who has been
                 prejudiced by error may be entitled to sentence relief even if
                 the adjudged sentence is less than limitation in the PTA.
                 United States v. Kinman, 25 M.J. 99 (C.M.A. 1987). We
                 recognize that the application of Hendon has been limited by
                 our Navy colleagues in United States v. Brandon, 33 M.J.
                 1033 (N.M.C.M.R. 1991), and again in United States v.
                 Payne, 1996 WL 927728, (N.M.C.M.R 1996). We have
                 previously cited Hendon and relied on its rationale. See
                 United States v. El-Amin, 38 M.J. 563 (A.F.C.M.R. 1993).

United States v. Cron, 73 M.J. 718, 736 n.9 (A.F. Ct. Crim. App. 2014).

5
  “The Courts of Criminal Appeals are required to engage in sentence comparison only in those rare instances in
which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in
closely related cases.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (quoting United States v. Ballard,
20 M.J. 282, 283 (C.M.A. 1985)) (internal quotation marks omitted). We do not conduct a sentence comparison
analysis as the appellant has only vague references in her clemency petition to other Airmen who received lighter
sentences.


                                                         5                                         ACM S32216
       Here the appellant was convicted of ingesting three and a half pills of ecstasy at a
few locations. She neither distributed the ecstasy nor is there any evidence that her use
endangered anyone other than herself. She pled guilty and “saved the government the
significant time and expense of a litigated court-martial.” Her misconduct is further
mitigated by the positive character letters on her behalf by co-workers who saw the
appellant improve her performance in the months before the court-martial. However, her
service record is also blemished. She received nonjudicial punishment for drinking
alcohol while underage, only three months after she entered active duty. Her 4 January
2012 enlisted performance report indicates she did not meet standards due to an incident
where she was caught drinking on duty. She also received a letter of counseling for being
asleep on duty and a letter of reprimand for failing to report to work on time.

       We also consider the limits of the PTA that the appellant voluntarily entered into
with the convening authority. The appellant received the benefit that a specification
alleging distribution was withdrawn. The appellant voluntarily agreed to a sentence cap
that limited confinement to no more than 5 months but did not prevent the convening
authority from approving a punitive discharge. We find no legal error and that the
appellant is not entitled to any additional relief beyond the negotiated benefit of the PTA.

       We have reviewed and considered this particular appellant, the PTA limits, the
nature and seriousness of her offenses, her record of service, and all matters contained in
the record of trial, including her arguments on appeal. We find the appellant’s approved
sentence appropriate.

                                          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). Accordingly, the approved findings and
sentence are

                                          AFFIRMED.

              FOR THE COURT




              LEAH M. CALAHAN
              Deputy Clerk of the Court




                                              6                               ACM S32216
