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_______ _______ __________ No. ACM S32430

_______ _______ __________ UNITED STATES Appellee

v. Brandon M. ZEGARRUNDO Senior Airman (E

- 4) , U.S. Air Force, Appellant

_______ _______ __________ Appeal from the Unite d States Air Force Trial Judiciary
Decided 31 January 2018

_______ _______ __________ Military Judge: J. Wesley Moore

. Approved sentence: Bad

- conduct discharge, confinement for 30 days , and reduction to E

- 1. Sentence adjudged 3 June 2016 by SpCM co nvened at Moody Air Force Base, Georgia

. For Appellant: Major Allen S. Abrams, USAF; Major Megan E. Hoffman
- Logsdon, USAF; Captain Patrick A. Clary, USAF

. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mary Ellen Payne, USAF; Major Meredith L. Steer , USAF ; Captain Michael T. Bunnell, USAF

. Before HARDING, SPERANZA, and HUYGEN , Appellate Military Judges

. Judge HUYGEN delivered the opinion of the c ourt, in which Senior Judge HARDING and Judge SPERANZA joined.

_______ _______ __________ PUBLISHED OPINIO N OF THE COURT

_______ _______ __________ HUYGEN , Judge:
A ppellant pleaded guilty at a special court

- martial to one specification each of attempt to wrongfully possess lysergic acid diethylamide (LSD) withUnited States v. Zegarrundo , No. ACM S32430

2 the intent to distribute; conspiracy to distribute 3 ,4

- methylenedioxymethamphetamine (MDMA) and cocaine; wrongful possession of cocaine and 3,4

- methylenedioxy

- N

- ethylcathinone; wrongful use of cocaine; attempted wrongful use of LSD; and wrongful use of marijuana, in violation of Articles 80, 81, and 112a, U niform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 881, 912a

. A panel of officers sentenced Appellant to a bad

conduct discharge, confinement for 30 days, reduction to the grade of E

- 1, and forfeiture of $1,044.00 pay per month for one month. The co nvening authority approved the adjudged sentence except for the forfeiture of pay. Appellant submitted his case on its merits with no specific assignment of error. The court specified the following issue: whether Appellant is entitled to new post

- trial pr ocessing consistent with the decision of the United States Court of Appeals for the Armed Forces (CAAF) in United States v. Addison , 75 M.J. 405 (C.A.A.F. 2016) (mem) , because the addendum to the staff judge adv o cate’s recommendation (SJAR) failed to corre ct an error in Appellant’s cle m ency submission. We find Appellant is so entitled and thus order new post

- trial processing.

I. B ACKGROUND In January 2015, Appellant smoked marijuana. In February 2015, he bought what he thought was LSD and offered it to an Ai rman . Appellant also asked another Airman about obtaining illegal drugs and then agreed to o btain MDMA and cocaine for two other people . In March 2015, Appellant ingested what he b e lieved to be LSD and, on a separate occasion , snorted and smoked cocaine. A ppellant was tried, convicted, and sentenced in June 2016. The SJAR correctly advised the special court

- martial convening authority (SPCMCA) that the SPCMCA could not affect the adjudged bad

- conduct di scharge and that the SPCMCA could “disapprove, commute or suspend in whole or in part the r e duction in rank and forfeiture of pay and confinement.” The SJA recommen d ed approving the adjudged sentence. Appellant’s clemency submission alleged error r e garding the report of result of trial attached to the SJAR an d a decision by the military judge to exclude testimony concerning the conditions of post

- trial confinement. When discus s ing the latter, Appellant’s trial defense counsel wrote, Due to changes in the law you no longer have the ability to di sapprove confin ement (which has been served anyway), but you do still have the power to disapprove the reduction in rank and the forfeitures imposed by the panel. Doing this will recognize that AB Zegarrundo was confined in conditions not authorizedUnited States v. Zegarrundo , No. ACM S32430

3 by the Air Force, and also give him a better financial footing as he transitions to civilian life . . .

. The addendum to the SJAR addressed the two allegations of error ; co rrected the report of result of trial; and recommended granting clemency by disapproving the adjudged fo rfeiture of pay. The a d dendum neither mentioned the clemency submission’s incorrect assertion that the SPCMCA could not disapprove the adjudged confinement nor repeated the SJAR’s correct statement that the SPCMCA could disapprove, commute, or suspend the confinement. After Appellant waived his right to submit additional matters for the SPCMCA’s consideration, the SJA completed an additional addendum, which repeated the addendum’s recomme n dation that the SPCMCA approve only the bad

- conduct di s charge, confi nement for 30 days, and reduction to E

- 1. T he SPCMCA approved the sentence as recommended in both addend a

.

II. D ISCUSSION 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 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 la t er claim of

error. Rule fo r Courts

- Martial ( 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 recommendationerror . . . an appellant must make ‘some colorable showing of possible prejudice.’” Id. at 436

– 37 (quoting Kho , 54 M.J. at 65). “The thr eshold is low, but there must be some colorable showing of possible prejudice . . . in terms of how the [error] potentially affected an appellant’s opportunity for clemency.” Id. at 437 (alteration in original)

. We find plain error in the failure of the a ddendum to the SJAR to correct the clemency submission’s erroneous statement that “Due to changes in the law you no longer have the ability to disapprove confinement

. ” Contrary to tr i al defense counsel’s assertion, the change in the law, specifically, Arti cle 60, UCMJ, 10 U.S.C. § 860, limit s a convening authority’s ability to affect

co n fi nement of more than six months . Appellant’s adjudged sentence included confinement for 30 days. T he SJAR correctly informed the SPCMCA that he could “disapprove, commute o r suspend in whole or in part” the adjudged 30

- day confinement . T rial defense counsel followed with an incorrect statement of the law

— that the SPCMCA could not disapprove the confinement

— andUnited States v. Zegarrundo , No. ACM S32430

4 requested instead that the SPCMCA disapprove the reduction to E

- 1 and fo rfeiture of pay

. In accordance with the CAAF’s disposition in Addison , t he SJA was then obligated to correct the D efense’s error in the a d dendum ; the SJA did not do so

. See Addison , 75 M.J. at 405. The SJA also did not give the D efense the opportuni ty to correct the error. See , e.g. , United States v. Olson , No. ACM 39093, 2017 CCA LEXIS 791, at * 11 (A.F. Ct. Crim. App. 22 Dec. 2017) (u n pub. op.) (“the SJA rendered the courtesy of permitting the Defense to correct its own e r ror”); United States v. Har rington , No. ACM 39112, 2017 CCA LEXIS 748, at *10 (A.F. Ct. Crim. App. 6 Dec. 2017) (unpub. op.) (“trial defense counsel was alerted to the misstatement and submitted a corrected memorandum”).
As we noted in United States v. Moore , No. ACM S32423, 2017 C CA LE XIS 763, at *11 (A.F. Ct. Crim. App. 19 Dec. 2017) (unpub. op.), an addendum’s correction of an error in the clemency submission would likely co n stitute a new matter and prompt notice and opportunity for the Defense to respond. R .C.M. 1106(f)(7). The problem is avoided altoget h er when trial defense counsel does not make an incorrect statement of the law co n cerning the convening authority’s clemency options. A c orrect statement of the law in a clemency submission also evidence s trial defense counsel’s u nde r standing of Article 60, UCMJ , and thus competency to advise clients during post

- trial processing.
The combination of trial defense counsel’s erroneous statement that theSPCMCA could not disapprove confinement; the corresponding clemency request for d isapproval of the reduction in rank and forfeiture of pay instead of confinement; and the SJA’s failure to correct the D efense’s erroneous statement resulted in plain error and constitutes a colorable showing of possible prejudice to Appellant in light of Addison

.

III. C ONCLUSION The action of the convening authority is set aside. The record of trial is r eturned to The Judge Advocate General for remand to the convening authority for new post

- trial pr o cessing and conflict

- free trial defense counsel consistent wi th 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 review under Article 66, UCMJ.

FOR THE COURT

KATHLEEN M. POTTER Acting Clerk of the Court