UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class WILLIAM J. BURTON

United States Air Force

ACM S32253

1 February 2016

Sentence adjudged 16 April 2014 by SP CM convened at Pope Army Air Field, Fort Bragg, North Carolina . Military Judge: Francisco Mendez

.

Approved S entence: Bad

- conduct discharge, confinement for 9 months

, forfeiture of $1021.00 pay per month for 9 months, and reduction to E

- 1

.

Appellate Counsel for Appellant: Lieutenant Colonel Joy L. Primol i

.

Appellate Counsel for the United States: Major Thomas J. Alford; Captain Jason M. Kellhofer; and Gerald R. Bruce, Esquire

.

Before

MITCHELL, MAYBERRY, and KIEFER Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

under AFCCA Rule of Practice and Procedure 18.4

.

KIEFER , Judge:

Pursuant to his pleas, Appellant was convicted of seven specifications of wrongful

use of cocaine in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. A panel of officer members sentenced Appellant to a bad

- conduct discharge, confinement for 9 months, forfeiture of $1021.00 pay per month for 9 months, reduction to E

- 1, and a reprimand. The convening authority approved all aspects of the sentence except for the reprimand.ACM S32253 2 Background

Between 14 October 2013 and 4 March 2014, Appellant used cocaine on seven occasions with friends near his hometown. Generally, Appellant would go home on weekends, m eet up with former classmates, and go to bars or parties where Appellant and his friends used cocaine. These wrongful uses of cocaine resulted in multiple positive urinalysis results.

After the preferral of charges for a positive urinalysis , Appellant cr ied as he told his commander he had a drug problem and needed treatment. Appellant was provided treatment through the Air Force. Following Appellant’s entry into treatment, his

commander was informed that he had a fifth positive urinalysis. Shortly thereafter, o n 4 March 2014, Appellant’s commander restricted Appellant to base

. On 7 March, the commander received notice of a sixth positive urinalysis. Following this sixth positive

result the commander orde red Appellant into pretrial confinement on 11 March 2014 . A

p retrial c onfinement r eview o fficer (PCRO) reviewed the commander’s action and affirmed the decision to order pretrial confinement.

Appellant alleges four assignments of error: ( 1) the military judge erroneously failed to grant him additional pretrial confinement credit for illegal pretrial punishment

under Article 13 , UCMJ, 10 U.S.C. § 813 ; ( 2) the sentence is inappropriately severe; ( 3) the s taff j udge a dvocate’s r ecommendation (SJAR) failed to inform the convening authority of 36 days of pretrial confinement credit; and ( 4) the SJAR failed to comment on legal errors.

Illegal Pretrial Punishment

Pursuant to Article 13 , UCMJ, and Rule for Courts

- Martial ( R.C.M. ) 305, Appellant alleges that the military judge erroneously failed to grant him additional credit against his term of confinement based on the commander improperly ordering him into pretrial confinement following a period of base restriction. Appellant ci tes to multiple reasons why the commander’s and PC R O’s decisions to order pretrial confinement were erroneous, including the fact that his sixth positive urinalysis result did not reflect additional misconduct after the ordering of base restriction and the commander’s basis for ordering pretrial confinement was to send a message to the unit.

Article 13 , UCMJ, reads:

No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending a gainst him, nor shall the arrest or confinement imposed upon him be any more rigorous tha n the circumstances required to insure his presence . . .

.ACM S32253 3 The question of intent to punish is “one significant factor in [the] judicial calculus” for determining wh ether there has been an Article 13 violation. United States v. Huffman, 40 M

. J

. 225, 227 ( C.M.A. 1994) ( citing Bell v. Wolfish, 441 U.S. 520 (1979) )

. We will not overturn a military judge ’ s finding s of fact, including a finding of no intent to punish, unless they are clearly erroneous. United States v. Smith, 53 M.J. 168, 170 (C.A.A.F. 2000 )

. “ We will review de novo the ultimate question whether an appellant is

entitled to credit for a violation of Article 13. ” United States v. Mosby , 56 M.J. 309, 310 (C.A.A.F. 2002)

Essentially, Article 13, UCMJ, prohibits two things: (1) the imposition of punishment prior to trial and (2) conditions of arrest or pretrial confinement that are more rigorous than necessary to ensure the accused ’ s presence for trial. The commander’s intent and basis for ordering pretrial confinement are important aspects of the analysis.

R.C.M. 305(d) indicates that there is probable cause to order pretrial confinement

when there is a reasonable belief that:

(1) An offense triable by court

- martial has been committed; (2) The person confined committed it; and (3) Confinement is required by the circumstances.

R.C.M. 305(h)(2)(B) lists factors the commander may consider in ordering or maintaining a person in pretrial confinement, including that:

(iii) Confinement is necessary because it is foreseeable that:

(a) The prisoner will not appear at trial, pretrial hearing, or investigation, or (b) The prisoner will engage in serious criminal

misconduct

. . . .

Under R.C.M. 305(h)(2)(B), the commander must also determine that “[l]ess severe forms of restraint are inadequate. ” The d iscussion to R.C.M. 305(h) lists factors the commander may consider in determining the appropriate level of restraint, to include the accused’s character and mental condition, the nature and circumstances of the charged offenses, and the weight of the evidence.

In this case, the militar y judge determined that the commander’s intent in ordering pretrial confinement was to deter continued serious misconduct and to ensure Appellant ’s presence at trial. The military judge cited evidence of Appellant’s repeated violations of military law. T he sixth positive urinalysis was collected before Appellant was placed on restriction; however

, it caused the commander to reevaluate Appellant’s likelihood ofACM S32253 4 engaging in further serious misconduct by continuing to use cocaine. This belief was supported by later evidence that a urine sample obtained from Appellant on the day he was placed on restriction resulted in his seventh cocaine positive test result. The military judge also found the commander had legitimate concerns about A ppellant’s attendance at

the court

- martial.

We find the conclusions of the military judge were not clearly erroneous, and there was no error in the military judge denying Appellant’s motion for additional pretrial confinement credit pursuant to Article 13 , UCMJ.

Sentence A

ppro priateness

Appellant also argues that his sentence is inappropriately severe. This court “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 review sentence appropriateness de novo, employing “a sweeping congressional mandate to ensure a fair and just punishment for every accused.” United States v. Baier

, 60 M.J. 382, 384 (C.A.A.F. 2005) (quoting United States v. Bauerbach , 55 M.J. 501, 504 (Army Ct. Crim. App. 2001)) (internal quotation marks omitted) . “We assess sentence appropriateness by considering the particular appellant, the nature and seriousness of the offense[s], the appellant’s record of service, and all matters contained in the record of

trial.” United States v. Anderson , 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (citing United States v. Snelling , 14 M.J. 267, 268 (C.M.A. 1982)). Although w e are accorded great discretion in determining whether a particular sentence is appropriate, we are not authorized to engage in exercises of clemency. United States v. Nerad , 69 M.J. 138, 14 6 (C.A.A.F. 2010).

The military judge convicted Appellant of wrongful use of cocaine on seven

occasions. At this s pecial c ourt

- m artial, Appellant faced a maximum sentence of a bad

conduct discharge

, 12 months of confinement, forfeiture of two

- thirds pay per month for

12 months, and a reduction to E

- 1. A panel of officer members sentenced Appellant to a

bad

- conduct discharge, confinement for 9 months, forfeiture of $1021.00 pay per month

for 9 months, reduction to E

- 1 , and a reprimand

.

We have reviewed the entire recor d of trial including all evidence in mitigation and extenuation as well as evidence in aggravation. Appellant was convicted of seven distinct wrongful uses of cocaine in less than five months. Appellant’s conduct did not represent an isolated incident bu t demonstrated regular and repeated violations of military law. Based on the facts of this case, including the nature of the offenses and A ppellant’s background, service record, and character, there is nothing that indicates Appellant’s sentence was inapp ropriately severe.ACM S32253 5 Fail ure to Inform Convening Authority of Pretrial Confinement Credit

In his third assignment of error, Appellant alleges that the p ersonal d ata s heet (PDS) and SJAR failed to properly note his 36 days of pretrial confinement credit.

R.C.M. 1106(d)(3) governs the content of the SJAR and requires, in part, a copy of the report of the results of trial, setting forth the findings, sentence, and confinement credit. Pursuant to R.C.M. 1106(d)(3), the report of the results of trial is part of the

SJAR.

Review of the record shows that the PDS indicates “Nature of Pretrial Restraint:

N/A.” This document was a p rosecution e xhibit at trial, and Appellant did not object to its admission. The report of the results of trial submitted as part of the SJAR shows “Pretrial Confinement Credit: 36.” Consequently, the SJAR properly noted the period of pretrial confinement credit. Additionally, trial defense counsel in his clemency request specifically mentioned that Appellant was placed in pretri al confinement.

Even if we determined that there was error or confusion by the failure to indicate pretrial confinement credit on the PDS while including it on the SJAR, Appellant did not raise this error within his clemency submission. If Appellant doe s not make a timely comment on an error or omission in the SJAR, the error is waived unless it is prejudicial under a plain error analysis. United States v. Capers , 62 M.J. 268, 269 (C.A.A.F. 2005). Under a pla i n error analysis, we must determine whether there was error, whether it was plain, and whether it materially prejudiced a substantial right of the appellant

. Id. With respect to an error in an SJA’s post

- trial recommendation, the prejudice prong involves a relatively low threshold

— a demonstration of some colorable showing of possible prejudice. Id. Our review is de novo. Id.

In this case, the report of the result s of trial properly reflected the period of pretrial confinement credit. The “N/A” on the PDS regarding pretrial confinement was err or and it was plain on its face. There is no evidence that Appellant did not receive the 36 days of pretrial confinement credit. Appellant has not produced any evidence that the convening authority was confused by the discrepancy between the report of the result s of

trial and the PDS . Appellant has not made a colorable showing of possible prejudice. We determine that Appellant has failed to surmount the low threshold for error in post

trial processing and deny him any relief on this issue.ACM S32253 6 Addendum to SJAR and Purported Legal Errors Raised in Appellant’s Submissions

In his fourth assignment of error, Appellant asserts that the SJA failed to note legal errors raised in defense clemency submissions. We disagree. The thrust of Appellant’s clemency m atters was to seek a reduced sentence based on sentence comparisons to other

courts

- martial and evidence in mitigation and extenuation. Appellant d id not allege any legal errors. We do not regard a straightforward request for clemency as raising a legal error. R.C.M. 1106(d)(4) states that the SJA does not need to examine the record for legal errors and is only required to address whether corrective action is needed if the defense makes an allegation of legal error in the matters submitted under R.C.M. 1 105 or otherwise deemed appropriate by the SJA. United States v. Foy, 30 M.J. 664 (A.F. Ct. Crim. App. 1990)

. “[T]he staff judge advocate is not required to specifically advise the convening authority on issues the appellant raises in her clemency submis sions unless those issues are raised as legal error.” United States v. Taylor , 67 M.J. 578, 580 (A.F. Ct. Crim. App. 2008)

. The SJAR in this case indicates that no corrective action was required with regard to the findings or sentence. The SJAR and adde ndum complied with R.C.M. 1106(d)(4).

Due to an unrelated error in the staff judge advocate ’ s advice to the convening authority about limitations on his ability to grant clemency, Appellant was afforded an opportunity to submit additional matters in clemency. Appellant did not raise the matter of the original addendum failing to address any othe r legal errors. “ Because A ppellant did not object to the recommendation of the SJA, we must determine [ under a de novo

review ] whether there was error, whether it was plain, and whether it materially prejudiced a substantial right of the accused. ” Capers , 62 M.J. at 269. We find no error and no colorable showing of possible prejudice under the facts of this case.

Conclusion

The findings and sentence are correct in law and fact and no error materially prejudicial to the substantial rights of Appellant occurred. * Articles 59(a) and 66(c), 10 U.S.C. §§ 859(a), 866(c), UCMJ.

* The court

- martial order (CMO) incorrectly abbreviates the specifications by including an uncharged location for each offense “at or near Pope Air Force Base, North Carolina,” along with the charged location of “within the

continental United S tates.” We order a corrected CMO.ACM S32253 7 Accordingly, the findings and the sentence are AFFIRMED

.

FOR THE COURT

LEAH M. CALAHAN

Clerk of the Court