## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before BURTON, CELTNIEKS, and HAGLER Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant ERIC A. SPITALE

United States Army, Appellant

ARMY 20170128

Headquarters, 21st Theat er Sustainment Command

David H. Roberts on, Military Judge

Colonel Paula I. Sch asberger, Staff Judge Advocate (pretrial)

Lieutenant Colonel Michael P. Baileys, Acting S taff Judge Advoc ate (post-trial) Colonel John S. Frost, Staff Ju dge Advocate ( new addendum)

For Appellant: Lieutenant Colo nel Tiffany M. Chapman, JA; Majo r Todd W. Simpson, JA; Captain H eather M. Martin, JA (on brief and reply brief).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford, JA; Major Michael E. K orte, JA (on brief).

16 August 2018

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SUMMARY DISPOSITION ON FURTHER REVIEW

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HAGLER, Judge:

We return this case to The Judge Advocate General for a new act ion by the

same or a different c onvening authority, a s specified in our de cretal paragraph.

A military judge sitti ng as a general court-martial convicted a ppellant, pursuant to his pleas, of failing to obey a lawful general regu lation and making a false official statement, in vi olation of Artic les 92 and 107, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907 (2012) [ UCMJ]. Contrar y to his pleas, appellant was found guilty of indecent co nduct in violation of Article 134, UCMJ, but the military judge conditiona lly dismissed th is offense as an unreasonable multiplication of charges with t he Article 92 offense. The mil itary judge sentenced appellant to a bad-co nduct discharge, conf inement for four mont hs, and reduction to the grade of E-3. The c onvening authority a pproved th e adjudge d sentence.SPITALE—ARMY 20170128

2 On 14 February 2018, thi s court returned the case for a new act ion by the convening authority. 1 The former convening authori ty’s successor approved the adjudged sentence. The case is again before us for review unde r Article 66, UCMJ. Appellant now assigns one error: the new convening authority fa iled to give appellant an oppo rtunity to present add itional matters under Ru le for Courts-Martial (R.C.M.) 1105. Appellant asks th is court to ret urn the case fo r a new action and for any other appropriate relief. 2

BACKGROUND

Appellant was a 39-y ear-old noncommissione d officer stationed i n Korea, who regularly socialized with a junior soldier he directly supervis ed, Specialist (SPC) P. Appellant went to bars with him, invited SPC P to his off-post residence, and eventually involved SPC P in sexua l activities wit h appellant a nd appellant’s wife. These activities, which appellant recorded on vid eo, gave rise to the charg es in this case. Appellant pleaded guilty to h aving a relationship with S PC P prohibited by Army Reg. 600-20, Pers onnel-General: Army C ommand Policy (18 Ma r. 2008) (Rapid Action Revision, 20 Sept. 2012) [hereinafter AR 600-20], and to lying to a military law enforcement agent w hen asked whether he had shared the sex videos with other people. Appellant pl eaded not guilty to indecent co nduct by engaging in sexual acts in the presence of S PC P, but he was found guilty o f this specification by the military judge. 3

After the case was returned fo r a new action, th e Staff Judge A dvocate (SJA) prepared a new adden dum, noting why the pre vious acti on had bee n set aside and specifically mentioning appellant’ s request to disapprove the b ad-conduct discharge. The addendum correctly informed t he convening auth ority that he could disapprove the adjudged sentence in whole or in part, mitigate the sentenc e, or change the punishment to one of a different nature, s o long as h e did not increase the severity.

1 United States v. Spitale , ARMY 20170128, 2018 CCA LEXIS 74 (Army Ct. Crim. App. 14 February 2018) (summ. disp.).

2 Appellant personall y raises several ma tters pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982). In addition to the matters discusse d in this opinion, appellant claims that government counsel elicited improper sent encing evidence on

the merits and made improper sentencing ar gument, assertions we find to be without

merit.

3 After findings and bef ore sentencing, the military judge found this specification to be an unreasonable multiplicatio n of charges, as it was wholly encompassed by the conduct alleged in the Article 92 violation. The judge granted a conditional dismissal of the specification, t o take effect if the Article 9 2 charge and its specification survive d appellate review.SPITALE—ARMY 20170128

3 The list of enclosures to the a ddendum included the record of t rial, the Report of Result of Trial, appellant’s clemency matters, and this cour t’s opinio n setting aside the previous action. The convening authority’s new actio n memorandum

contains a list of items he co nsidered, to include the addendum enclosure s and an itemized listing of appellant’s clemency matters, which were th e same as those he submitted previously. The government did not give appellant an opportunity to modify his previo us submissions or to pres ent additional clemen cy matters.

LAW AND DISCUSSION

The Court of Appeals f or the Armed Forces (CAAF) has explained that a convening authority “i s not limited to cons idering the circumst ances as they existed

at the time of the ini tial review. The convening authority may consider other appropriate matters—including cha nges in circumstances followin g the initial action on the case—for purpose s of determining whe ther clemency or oth er post-trial action

is warranted.” United States v. Rosenthal , 62 M.J. 261, 262-63 (C.A.A.F. 2005).

The CAAF has similarl y held, “[a] new, as opposed to a correcte d, action requires a new [Staff Judge Advocate’s Rec ommendation (SJAR)] under R.C.M. 1106 and the opportunity for the accu sed to submit addition al matters under R.C.M. 1105.”

United States v. Mendoza , 67 M.J. 53, 55 (C .A.A.F. 2008). 4

While both parties agree that the government’s failure to give appellant this opportunity was error, w e must still determine whether appellan t suffered prejudice. See, e.g.

, United States v. Wheelus , 49 M.J. 283, 288-89 (C.A.A.F . 1998). In this context, “[b]ecause clemency is such a highly discretionary Exe cutive function, there is material prej udice to the substan tial rights of an app ellant if there is an error and the appellant ‘makes some co lorable showing of possible pre judice.’” Id . at 289 (citing United States v. Chatman, 46 M.J. 321, 323-24 ( C.A.A.F. 1997)).

Here, the government argues appellant suffered no prejudice, be cause the convening authority c onsidered all the matte rs appellant previo usly submitted for clemency. Appellant c ounters that his Grostefon matters satisfy t he low standard of prejudice, as he coul d have raised these iss ues to the convenin g authority as part of submitting additional matters. B ased on the specific facts of this case, we agree with appellant.

For example, as part of his Grostefon matters, appella nt raises the issue of post-trial delay betwee n sentencing and the new post-trial proc essing. As another example, appellant highlights a series of issues with the Repor t of Result of Trial,

4 Perhaps the Staff Judge Advoca te was misled by the by the fact that in returning the case for a new action, this court did not specify that appe llant must have an opportunity to submit ma tters, consistent with Mendoza . If so, we regret the misunderstanding and offer more s pecific direction in our decre tal paragraph.SPITALE—ARMY 20170128

4 which does not fully a nd accurately capture his pleas and the f indings. 5 First, it does not reflect language excepted from the false official statement specification, consistent with appellant’s pret rial agreement an d his final pl eas. Second, it does

not show that the date s of the indecent c onduct and prohibited relationship specifications were amended befo re appellant entered his final pleas, thereby reducing the time peri od for those offenses . Finally, it does not mention the

conditional dismissal of the indecent condu ct specification.

In our previous decision in this case, we declined to speculate on what the convening authority might have done if he had not misunderstood his clemency powers. While any conclusion on prejudice during the clemency process involves some degree of conject ure, as this case now stands, we find our selves on firmer footing. The SJA prope rly advised the new convening authority of his clemency powers, and after considering everything appellant previously s ubmitted for clemency, the convening authorit y approved the a djudged sentenc e. At the same time, appellant was denied his r ight to submit new matters to t he convening authority, and we have before us additional claims the convenin g authority might have considered. Under the speci fic facts of this case, we nar rowly conclude that appellant has presented “some colorable showing of possible pre judice.” Chatman,

46 M.J. at 323-24. 6

5 This issue was not ra ised in appellant’s initial post-trial su bmissions. If a defense

counsel fails to comme nt on the SJAR and it s attachments in a t imely manner, the

error is waived ab sent plain error. R.C.M. 1106(f)(6); United States v. Scalo , 60 M.J. 435, 436 (C.A.A.F . 2005). However , since we re turned this case for a new action, appellant could have raised these errors with the Repor t of Result of Trial when submitting additi onal matters to the convening authority. On this point, we note that appellant raised these errors in his previous and cur rent Grostefon

submissions to this court.

6 Appellant also claims several documents ar e missing from the r ecord of trial. First, appellant high lights a missing page of an evaluation fro m his “good soldier”

book admitted at trial. Although the evalua tions were not in c hronological order, we located the errant pag e in the exhibit. S econd, appellant asse rts missing enclosures from a record of non-jud icial punishment adm itted as a prosecut ion sentencing

exhibit. We find these witness statements were removed from th e exhibit after defense counsel objecte d to them at trial. Finally, appellant alleges items are missing from the post-trial recor d, to wit: severa l enclosures to his “Request for

Deferral and Waiver of Automatic Forfeitur es and Reduction in R ank,” dated 8

March 2017.SPITALE—ARMY 20170128

5 CONCLUSION

The convening author ity’s action, dated 12 March 2018, is SET A SIDE. The

record of trial will be returned to the J udge Advocate General for a new SJAR,

submission of new matte rs under R.C.M. 1105 and 1106, and a new action by the

same or a different c onvening authority in accordance with Arti cle 60(c)-(e), UCMJ.

The government should correct any identified defects in the Rep ort of Result of Trial and ensure any omitted it ems from the record of trial are available to the convening authorit y to consider in taking action.

Senior Judge BURTON and Judge CELTNIEKS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: