U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39114
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UNITED STATES
Appellee
v.
Raymond J. SIMON, II
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 7 June 2017
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Military Judge: L. Martin Powell.
Approved sentence: Bad-conduct discharge, confinement for 12 months,
and reduction to E-1. Sentence adjudged 24 May 2016 by GCM convened
at Joint Base Elmendorf-Richardson, Alaska.
For Appellant: Major Melissa Biedermann, USAF; Major Jerett F. Merk,
USAF.
For Appellee: Major G. Matt Osborn, USAF; Gerald R. Bruce, Esquire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges.
Senior Judge J. BROWN delivered the opinion of the court, in which
Chief Judge DREW and Judge MINK joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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J. BROWN, Senior Judge:
A general court-martial composed of a military judge sitting alone found
Appellant guilty, consistent with his pleas and pursuant to a pretrial agree-
ment, of divers wrongful use of oxycodone, wrongful introduction of oxycodone
onto a military installation, and divers wrongful use of cocaine, in violation of
United States v. Simon, No. ACM 39114
Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. 1 The
military judge sentenced Appellant to a bad-conduct discharge, confinement
for 12 months, and reduction to E-1. The convening authority approved the
adjudged sentence.
Appellant now requests that this court reduce his sentence of confinement
because of a 16-day delay between authentication of the record of trial (ROT)
and the Government’s service of that ROT on Appellant. We find sentence re-
lief is not warranted and affirm.
I. BACKGROUND
Appellant pleaded guilty, pursuant to a pretrial agreement, in a one-day
trial that lasted approximately three hours. The military judge authenticated
the ROT on 3 July 2016. The Government served a copy of the authenticated
ROT on Appellant’s defense counsel on 18 July 2016 and on Appellant a day
later.
Eight days later, on 27 July 2016, Appellant submitted his written request
for clemency. Appellant requested that the convening authority disapprove the
punitive discharge and reduce his sentence of confinement. In this submission,
neither Appellant nor his counsel complained about the timeliness of the Gov-
ernment serving Appellant with his authenticated ROT—nor did they cite to
this as a basis for their request that the convening authority grant his request
for clemency. Furthermore, Appellant also failed to assert any legal errors or
irregularities with the trial proceeding. Instead, the request was a generalized
plea for clemency.
On 28 July 2016, the convening authority elected not to grant Appellant’s
request and approved the sentence as adjudged.
II. DISCUSSION—POST-TRIAL DELAY
Appellant asserts that this delay between authentication and service of the
ROT constituted post-trial error. To support this proposition, Appellant points
to Article 54(d), UCMJ,
10 U.S.C. § 854(d), that provides that “[a] copy of the
record of the proceedings . . . shall be given to the accused as soon as it is au-
thenticated.” It is unnecessary for us to resolve whether this constitutes error
as Appellant has wholly failed to demonstrate prejudice.
1 Pursuant to the pretrial agreement, an additional specification of divers wrongful
distribution of oxycodone was withdrawn and dismissed with prejudice after arraign-
ment.
2
United States v. Simon, No. ACM 39114
The “[p]roper completion of post-trial processing is a question of law, which
this court reviews de novo.” United States v. LeBlanc,
74 M.J. 650, 660 (A.F.
Ct. Crim. App. 2015) (citing United States v. Sheffield,
60 M.J. 591, 593 (A.F.
Ct. Crim. App. 2004)). If the Defense does not make a timely comment on an
error in the SJAR, the error is forfeited “unless it is prejudicial under a plain
error analysis.” United States v. Scalo,
60 M.J. 435, 436 (C.A.A.F. 2005) (citing
R.C.M. 1106(f); United States v. Kho,
54 M.J. 63, 65 (C.A.A.F. 2000)). Under a
plain error analysis, Appellant must persuade this court that: “(1) there was
an error; (2) it was plain or obvious; and (3) the error materially prejudiced a
substantial right.”
Id. (quoting Kho, 54 M.J. at 65).
To meet the third prong of the plain error test, Appellant must make “some
colorable showing of possible prejudice.” Id. at 436–37 (quoting Kho, 54 M.J. at
65). While the threshold is low, there must be some colorable showing of possi-
ble prejudice. Id.
Appellant’s argument as to prejudice is overly generalized and speculative.
Appellant argues that this 16-day delay prejudiced Appellant because memo-
ries generally fade over time and it “limited his ability to quickly recall and
then focus on any issues he felt needed to be addressed.” Appellant has not,
either in clemency or on appeal, identified any issues with the trial that he
desired to address in his clemency submission. Further, he also fails to articu-
late or even attempt to explain how a potential loss of memory would have
actually impacted his clemency submission. Cf. United States v. Gilbreath,
57
M.J. 57, 61–62 (C.A.A.F. 2002) (holding that when considering whether new
matter included in an unserved addendum to a staff judge advocate recommen-
dation prejudiced an appellant, the appellant should assert what, if anything,
he would have submitted to deny, counter, or explain matters submitted by the
Government). Such generalized speculation is insufficient to demonstrate a
colorable showing of prejudice. 2
2 We also decline to grant relief under United States v. Tardif,
57 M.J. 219, 223–24
(C.A.A.F. 2002). Under Article 66(c), UCMJ,
10 U.S.C. § 866(c), this court is empow-
ered “to grant relief for excessive post-trial delay without a showing of ‘actual prejudice’
within the meaning of Article 59(a), if it deems relief appropriate under the circum-
stances.” Tardif, 57 M.J. at 224 (quoting United States v. Collazo,
53 M.J. 721, 727
(Army Ct. Crim. App. 2000)). In United States v. Toohey,
63 M.J. 353, 362 (C.A.A.F.
2006), our superior court held that a service court may grant relief even when the delay
was not “most extraordinary.” The court held, “The essential inquiry remains appro-
priateness in light of all circumstances, and no single predicate criteria of ‘most ex-
traordinary’ should be erected to foreclose application of Article 66(c), UCMJ, consid-
eration or relief.”
Id. On the whole, we find that the delay does not merit sentencing
relief in this case.
3
United States v. Simon, No. ACM 39114
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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