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

                            No. ACM S32478
                        ________________________

                           UNITED STATES
                               Appellee
                                    v.
                       Anthony T. MORGAN
            Staff Sergeant (E-5), U.S. Air Force, Appellant
                        ________________________

       Appeal from the United States Air Force Trial Judiciary
                        Decided 28 January 2019
                        ________________________

Military Judge: Mark F. Rosenow (arraignment), Vance H. Spath.
Approved sentence: Bad-conduct discharge, confinement for 7 months,
forfeiture of $1,066.00 pay per month for 9 months, and reduction to
E-1. Sentence adjudged 28 June 2017 by SpCM convened at Luke Air
Force Base, Arizona.
For Appellant: Major Dustin J. Weisman, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Captain Michael T. Bunnell, USAF;
Mary Ellen Payne, Esquire.
Before HUYGEN, MINK, and POSCH, Appellate Military Judges.
Judge POSCH delivered the opinion of the court, in w hich Senior Judge
HUYGEN 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   This is an unpublished opinion and, as such, does not serve as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.
                        ________________________

POSCH, Judge:
   In accordance with Appellant’s pleas pursuant to a pretrial agreement
(PTA), a special court-martial composed of a military judge found Appellant
                   United States v. Morgan, No. ACM S32478


guilty of patronizing a prostitute and communicating indecent language, both
in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 934. The military judge sentenced Appellant to a bad-conduct discharge, con-
finement for seven months, forfeiture of $1,066.00 pay per month for nine
months, and reduction to the grade of E-1. The convening authority approved
the adjudged sentence, which did not exceed the limitations in the PTA.
    Appellant raises two issues on appeal. First, Appellant avers that the mil-
itary judge abused his discretion by accepting Appellant’s plea of guilty to com-
municating indecent language because the facts do not establish that Appel-
lant’s language was indecent as a matter of law.1 Second, Appellant asserts
that this court has jurisdiction under Article 66(c), UCMJ, 10 U.S.C. § 866(c),
to order a remedy for pay he has been improperly denied.
    We also reviewed the failure of the staff judge advocate (SJA) to correct an
error in Appellant’s clemency submission. On 2 November 2018, we ordered
the Government to show good cause why new post-trial processing and conven-
ing authority action were not required consistent with the decision of the
United States Court of Appeals for the Armed Forces in United States v. Addi-
son, 75 M.J. 405 (C.A.A.F. 2016) (mem.). As a result of that review, we order
new post-trial processing and thus do not now address the assignments of er-
ror.

                                 I. BACKGROUND
    Following Appellant’s conviction and sentence, the SJA prepared a recom-
mendation for the convening authority (SJAR). In it, the SJA advised, “Pursu-
ant to Article 60, UCMJ, due to the sentence adjudged at trial, you only have
the authority to approve the finding of guilt in this case.” Noting that the ad-
judged sentence did not exceed the limitations in the PTA, the SJA further
advised the “sentence adjudged is appropriate” and recommended the conven-
ing authority “approve the sentence as adjudged.”
    Appellant asked the convening authority for clemency “by reducing [his]
sentence [to confinement] by two weeks.” Appellant’s trial defense counsel also
submitted a memorandum to the convening authority stating Appellant had
already been rehabilitated and “more time in confinement will not further re-
habilitate.” Trial defense counsel echoed Appellant’s request for a reduction in
the length of Appellant’s sentence to confinement and cited Article 60, UCMJ,
10 U.S.C. § 860, as the legal authority to do so:



1Appellant personally asserts this issue. See United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).


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                 United States v. Morgan, No. ACM S32478


       Article 60, U.C.M.J., allows you, as the convening authority, the
       power to approve, disapprove, commute, or suspend the sentence
       of a court-martial in whole or in part. [Appellant] respectfully
       requests that you use the power given to you and shorten his
       confinement sentence. You can do this by only approving a por-
       tion of the confinement sentence that is less than the adjudged
       7 months.
    The addendum to the SJAR states that the SJA had “reviewed the . . . clem-
ency matters submitted by the defense.” The SJA further advised that “Rule
for Courts-Martial 1107(b)(3)(A)(iii) provides that you must consider [Appel-
lant’s clemency] matters before taking final action.” The SJA noted the defense
“does not allege any legal error” and maintained, “I recommend that you ap-
prove the findings and sentence as adjudged.”
   The convening authority approved the findings and sentence as adjudged.

                               II. DISCUSSION
   Four errors occurred in the post-trial processing of Appellant’s case:
       ● Although the SJAR correctly advises the convening authority “you
       only have the authority to approve the finding of guilt in this case,” the
       SJAR fails to advise the convening authority on his power to affect the
       adjudged sentence. Specifically, the SJAR fails to inform the convening
       authority that he could not disapprove the bad-conduct discharge or
       seven-month confinement but he could disapprove, commute, or sus-
       pend, in whole or in part, the adjudged forfeiture of pay and reduction
       to the grade of E-1. See Article 60(c)(4), UCMJ, 10 U.S.C. § 860(c)(4).
       ● Appellant asks the convening authority for clemency only “by re-
       ducing [his] sentence [to confinement] by two weeks,” which the conven-
       ing authority had no legal authority to do.
       ● Trial defense counsel’s post-trial submission also asks the conven-
       ing authority to “shorten” the adjudged seven months of confinement
       and incorrectly cites Article 60, UCMJ, as giving the convening author-
       ity the power to “approve, disapprove, commute, or suspend the sen-
       tence of a court-martial in whole or in part.”
       ● The addendum to the SJAR makes no mention of the omission from
       the SJAR, the problem in Appellant’s clemency submission, or the mis-
       statement of the law in trial defense counsel’s post-trial submission on
       behalf of Appellant.
   The proper completion of post-trial processing is a question of law the court
reviews de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000) (citing


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                   United States v. Morgan, No. ACM S32478


United States v. Powell, 49 M.J. 460, 462 (C.A.A.F. 1998)). Failure to comment
in a timely manner on matters in the SJAR or matters attached to the SJAR
“waives in the absence of plain error, or forfeits, any later claim of error.”
United States v. Zegarrundo, 77 M.J. 612, 614 (A.F. Ct. Crim. App. 2018); see
also R.C.M. 1106(f)(6); United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005).
Analyzing for plain error, we assess whether “(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). “To meet this burden in the
context of a post-trial recommendation error . . . an appellant must make ‘some
colorable showing of possible prejudice.’” Id. at 436–37 (quoting Kho, 54 M.J.
at 65). “The threshold is low, but there must be some colorable showing of pos-
sible prejudice . . . in terms of how the [error] potentially affected an appellant’s
opportunity for clemency.” Id. at 437.
    There is no doubt Appellant waived a claim of error in the post-trial pro-
cessing of his case when he failed to comment on the content of the SJAR in a
timely manner or at all. Continuing the analysis set out in Scalo, we find plain
error in the post-trial processing of Appellant’s case. The SJA failed to inform
the convening authority that he could only approve the bad-conduct discharge
and seven months of confinement but that he could approve, disapprove, com-
mute, or suspend the forfeiture of pay and reduction to the grade of E-1. The
trial defense counsel then asserted that the convening authority had the au-
thority to approve, disapprove, commute, or suspend any or all of the adjudged
sentence. The counsel’s citation to Article 60, UCMJ, was a misstatement of
the law. Article 60(c)(4)(A), UCMJ, 10 U.S.C. § 860(c)(4)(A), explicitly states
that unless an exception applies the convening authority “may not disapprove,
commute, or suspend in whole or in part an adjudged sentence of confinement
for more than six months or a . . . bad conduct discharge.”2 Appellant’s ad-
judged sentence included both. While the convening authority could have dis-
approved a sentence of more than six months of confinement “pursuant to the
terms of [a] pretrial agreement,” id. at § 860(c)(4)(C); see also R.C.M.
1107(d)(1)(C)(ii), the PTA in Appellant’s case specified, among other things,
that the convening authority would approve no more than seven months of
confinement if a bad-conduct discharge was adjudged. Thus, trial defense coun-



2 The National Defense Authorization Act for Fiscal Year 2014 modified Article 60,
UCMJ, and changed the convening authority’s ability to affect findings of guilt for of-
fenses committed on or after the effective date of the change, 24 June 2014. Pub. L.
No. 113–66, § 1702, 127 Stat. 672, 954–58 (2013). Appellant was convicted of offenses
committed after 24 June 2014, and thus the convening authority in Appellant’s case
only had the authority to approve the findings of guilt.




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                      United States v. Morgan, No. ACM S32478


sel’s assertion that Article 60, UCMJ, allowed the convening authority to dis-
approve some confinement beyond the seven months specified in the PTA was
a misstatement of the law. The problem was further exacerbated by the fact
that the only form of clemency requested by Appellant and his counsel was a
reduction in confinement, which the convening authority could not grant.
    In United States v. Addison, 75 M.J. 405 (C.A.A.F. 2016) (mem.), the appel-
lant was entitled to new post-trial processing because the addendum to the
SJAR failed to correct an error in the appellant’s clemency submission. Here,
the SJA was obligated to note trial defense counsel’s error in the SJAR adden-
dum and correct it. The SJA did not do so. Instead, the addendum merely re-
peated the SJAR’s recommendation that the convening authority “approve the
findings and sentence as adjudged.” Thus, the convening authority was left
with one statement of the law, which was the trial defense counsel’s misstate-
ment of the power of the convening authority under Article 60, UCMJ.
    In response to our show cause order, the Government tries to differentiate
Addison and Zegarrundo3 by arguing that here “the convening authority was
wrongly informed by Appellant that he had more authority” than he actually
did have, “and Appellant requested relief that the convening authority had no
power to provide.” We conclude this is a distinction without meaningful differ-
ence. In those cases and Appellant’s, the convening authority took action lack-
ing accurate and complete information about his options to grant clemency.
Thus the convening authority may have taken action more favorable to Appel-
lant if he had been properly advised.
    We find a colorable showing of possible prejudice because the SJA misad-
vised the convening authority, Appellant’s trial defense counsel misapplied Ar-
ticle 60, UCMJ, and R.C.M. 1107, Appellant petitioned for a single form of
clemency that the convening authority had no legal authority to grant, and
because the addendum to the SJAR corrected none of the errors in the SJAR
or Appellant’s clemency submission. As a result, we find there was error, it was
plain, and the error materially prejudiced the substantial right of Appellant




3   In United States v. Zegarrundo, 77 M.J. 612 (A.F. Ct. Crim. App. 2018), we noted:
          The combination of trial defense counsel’s erroneous statement that
          the [convening authority] could not disapprove confinement; the corre-
          sponding clemency request for disapproval of the reduction in rank and
          forfeiture of pay instead of confinement; and the SJA’s failure to correct
          the Defense’s erroneous statement resulted in plain error and consti-
          tutes a colorable showing of possible prejudice . . . .
Id. at 614.


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                  United States v. Morgan, No. ACM S32478


for the convening authority to consider the matters submitted by Appellant,
specifically, his request for clemency.

                               III. CONCLUSION
    The action of the convening authority is SET ASIDE. The record of trial is
returned to The Judge Advocate General for remand to the convening author-
ity for new post-trial processing and conflict-free trial defense counsel con-
sistent with this opinion. Article 66(e), UCMJ, 10 U.S.C. § 866(e). Thereafter,
the record of trial will be returned to this court for completion of appellate re-
view under Article 66, UCMJ.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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