U.S. v. Kho, 54 M.J. 63

Trial Stages: Initial Review: Post-trial Recommendation

1. defense counsel’s failure to comment on any matter in the post-trial recommendation in a timely manner waives later claim of error, unless error rises to the level of plain error
2. error in post-trial recommendation’s description of an assault (placing a child in cold water versus spraying a child with cold water) did not rise to the level of plain error where there was no legal difference and little qualitative difference between the two, and appellant did not sustain his burden of demonstrating any specific prejudice
3. it was error for the post-trial recommendation to omit mention of military judge’s recommendation that convening authority consider suspending 30 days of the confinement, but where defense did not object to the omission and appellant was released from confinement earlier than the military judge recommended, appellant failed to carry burden of making colorable showing of prejudice in support of claim of plain error

Trial Stages: Initial Review: Action

1. because of the highly discretionary nature of the convening authority’s action on sentence, relief for errors in the post-trial process will be granted if an appellant presents some colorable showing of possible prejudice

Trial Stages: Appeals: Preservation of Error / Plain Error

1. to prevail under a plain error analysis, appellant has the burden of persuading the court that: (1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right
2. application of the plain error doctrine is reviewed de novo as a question of law

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. application of the plain error doctrine is reviewed de novo as a question of law