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

                               No. ACM S32510
                          ________________________

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

        Appeal from the United States Air Force Trial Judiciary
                        Decided 11 September 2019
                          ________________________

Military Judge: Mark F. Rosenow.
Approved sentence: Bad-conduct discharge, confinement for 4 months,
and reduction to E-1. Sentence adjudged 10 January 2018 by SpCM con-
vened at Malmstrom Air Force Base, Montana.
For Appellant: Lieutenant Colonel Anthony D. Ortiz, USAF; Major
Dustin J. Weisman, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
Senior Judge MINK delivered the opinion of the court, in which Judge
LEWIS and Judge D. JOHNSON joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                            ________________________
MINK, Senior Judge:
   Appellant was found guilty by a military judge, in accordance with his
pleas, of two specifications of wrongful use of a controlled substance (marijuana
and cocaine) on divers occasions and one specification of wrongful distribution
                   United States v. Stuteville, No. ACM S32510


of a controlled substance (cocaine) on divers occasions in violation of Article
112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. 1 A panel of
officer members sentenced Appellant to a bad-conduct discharge, confinement
for four months, and reduction to the grade of E-1. The convening authority
approved the adjudged sentence but waived $1091.00 pay per month of the
mandatory forfeitures for a period of four months or release from confinement,
whichever was sooner, for the benefit of Appellant’s spouse.
    Appellant raises three issues on appeal: (1) whether an error in the staff
judge advocate’s recommendation (SJAR) requires new post-trial processing;
(2) whether the military judge abused his discretion when he prevented trial
defense counsel from inquiring about the effects of Appellant’s conviction dur-
ing voir dire; and (3) whether the military judge erred in failing to ensure Ap-
pellant’s drug testing results entered into evidence were sufficiently reliable. 2
We find no prejudicial error with respect to the issues raised by Appellant. 3
Accordingly, we affirm the findings and sentence.

                                   I. BACKGROUND
    In the SJAR, the staff judge advocate erroneously advised the convening
authority that the maximum punishment in Appellant’s case was a “Bad Con-
duct Discharge, one year confinement, reduction to E-1, and forfeiture of 2/3’s
pay for up to six months.” (Emphasis added). Because the jurisdictional limit
of a special court-martial could have been adjudged in this case, the actual
amount of forfeitures that could have been imposed by the court martial in-
cluded the forfeiture of 2/3’s pay per month for up to 12 months. Article 19,
UCMJ, 10 U.S.C. § 819.



1All references in this opinion to the Uniform Code of Military Justice (UCMJ) and
Rules for Courts-Martial (R.C.M.) are found in the Manual for Courts-Martial, United
States (2016 ed.) (MCM).
2Appellant personally raised issues (2) and (3) pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
3 We have carefully considered each of the issues raised by Appellant. With respect to
issue (2), the military judge did not abuse his discretion by limiting the questions trial
defense counsel could ask about the “collateral consequences” of a federal conviction
during voir dire. With respect to issue (3), the military judge did not abuse his discre-
tion in admitting Appellant’s drug testing results as a proper foundation had been laid,
the documents did not constitute testimonial hearsay, and the reliability requirements
for sentencing evidence under the Fifth Amendment’s Due Process Clause, U.S. CONST.
amend. V, had been met. See United States v. McDonald, 55 M.J. 173, 176–77 (C.A.A.F.
2001). These two issues do not require further discussion or warrant relief. See United
States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).


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                 United States v. Stuteville, No. ACM S32510


                                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. (quot-
ing Scalo, 60 M.J. at 436). The threshold for establishing prejudice from errors
impacting an appellant’s request for clemency from the convening authority is
low, even in the context of plain error analysis, but there must be “some ‘color-
able showing of possible prejudice.’” Id. (quoting Scalo, 60 M.J. at 437).
B. Analysis
    As noted above, the SJA erroneously advised the convening authority of the
maximum punishment in Appellant’s case. The Defense clemency submission
failed to address this error. Therefore, we test for plain error and we find this
error plain and obvious based on the jurisdictional limit of a special court-mar-
tial. We also note the military judge correctly stated the maximum punishment
prior to accepting Appellant’s plea of guilty and counsel for both sides con-
curred in the military judge’s statement.
    Despite the obvious error, Appellant has not attempted to make a colorable
showing of possible prejudice. We note the adjudged sentence did not include
forfeitures and Appellant requested no financial relief from his adjudged sen-
tence in his clemency submission. Under these circumstances, we find no col-
orable showing of possible prejudice from the misstatement in the maximum
punishment in a special court-martial. See Scalo, 60 M.J. at 437. Under the
facts of this case, we are confident that stating the proper maximum confine-
ment would not have led to a more favorable recommendation by the staff judge
advocate or further clemency by the convening authority. See United States v.
Green, 44 M.J. 93, 95 (C.A.A.F. 1996).

                               III. CONCLUSION
   The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to Appellant’s substantial rights occurred. Articles




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                   United States v. Stuteville, No. ACM S32510


59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved
findings and sentence are AFFIRMED. 4


                   FOR THE COURT



                   CAROL K. JOYCE
                   Clerk of the Court




4 The convening authority’s action, although signed and otherwise proper, is undated.
The date of the action can be discerned through other documents in the record, and the
absence of the date on the action itself has not impeded this court’s review pursuant to
Article 66, UCMJ, nor materially prejudiced a substantial right of Appellant. Accord-
ingly, we find no corrective action is required in this case. However, it should be clearly
understood that the date the convening authority takes action should be included on
the action. This date is significant for numerous reasons—for example, to ensure the
convening authority does not act before receiving matters submitted by an appellant
or crime victim, and for ensuring timely post-trial and appellate review. See R.C.M.
1105; R.C.M. 1105A; United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006); see
also MCM, App. 16, at A16–1 (“[T]he action should show . . . the date of the action.”).




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