U.S. v. Wilson, 54 M.J. 57

Trial Stages: Initial Review: Post-trial Recommendation

1. although the post-trial recommendation was signed by an “Assistant Staff Judge Advocate,” there was no timely objection and appellant failed to sustain his burden of demonstrating plain error where there was nothing in the record showing that the individual who prepared the post-trial recommendation was not the senior judge advocate present for duty
2. although the post-trial recommendation was signed by an “Assistant Staff Judge Advocate,” there was no timely objection and appellant failed to sustain his burden of demonstrating material prejudice under the plain error doctrine where: (1) the only defect in the post-trial recommendation was clearly harmless; (2) the claim that appellant might receive a more favorable recommendation from a more experienced officer was purely speculative; (3) appellant had negotiated a pretrial agreement that cut the adjudged confinement from 7 years to 30 months; and (4) there was no reasonable likelihood that the SJA would have recommended clemency or that the convening authority would have granted it in this case

Trial Stages: Initial Review: Action

1. because of the highly discretionary nature of the convening authority’s action on the sentence, court will grant relief if an appellant presents some colorable showing of possible prejudice as a result of a cognizable error in the SJA’s post-trial recommendation

Trial Stages: Appeals: Preservation of Error / Plain Error

1. an appellant has the burden of persuading the appellate court that there was plain error; he must show that: (1) there was an error; (2) that it was plain or obvious; and (3) that the error materially prejudiced a substantial right
2. although the post-trial recommendation was signed by an “Assistant Staff Judge Advocate,” there was no timely objection and appellant failed to sustain his burden of demonstrating plain error where there was nothing in the record showing that the individual who prepared the post-trial recommendation was not the senior judge advocate present for duty
3. although the post-trial recommendation was signed by an “Assistant Staff Judge Advocate,” there was no timely objection and appellant failed to sustain his burden of demonstrating material prejudice under the plain error doctrine where: (1) the only defect in the post-trial recommendation was clearly harmless; (2) the claim that appellant might receive a more favorable recommendation from a more experienced officer was purely speculative; (3) appellant had negotiated a pretrial agreement that cut the adjudged confinement from 7 years to 30 months; and (4) there was no reasonable likelihood that the SJA would have recommended clemency or that the convening authority would have granted it in this case

Trial Stages: Appeals: Remedies › Sentence reassessment

1. because of the highly discretionary nature of the convening authority’s action on the sentence, court will grant relief if an appellant presents some colorable showing of possible prejudice as a result of a cognizable error in the SJA’s post-trial recommendation