United States v. Canchola

63 M.J. 649, 2006 CCA LEXIS 149, 2006 WL 1816382
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedJune 30, 2006
DocketNMCCA 200500538
StatusPublished
Cited by1 cases

This text of 63 M.J. 649 (United States v. Canchola) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Canchola, 63 M.J. 649, 2006 CCA LEXIS 149, 2006 WL 1816382 (N.M. 2006).

Opinion

WAGNER, Senior Judge:

A military judge sitting as a special court-martial convicted the appellant, in accordance with his pleas, of dereliction of duty, wrongful use of methamphetamine, two specifications of wrongful use of marijuana, and two specifications of wrongful use of cocaine, in violation of Articles 92 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 912a. On 14 January 2003, the appellant was sentenced to confinement for 130 days, reduction to pay grade E-l, and a bad-eon-duct discharge. The pretrial agreement had no effect on the sentence, and, 783 days after trial, the convening authority approved the sentence as adjudged.

We have considered the record of trial, the appellant’s single assignment of error alleging excessive post-trial delay, and the Government’s response. We conclude that the findings are correct in law and fact and that there was no error materially prejudicial to the substantial rights of the appellant. Arts. 59(a) and 66(e), UCMJ, 10 U.S.C. §§ 859(a) and 866(c). Exercising our discretionary authority under Article 66(c), UCMJ, we believe the accused is entitled to sentence credit for excessive post-trial delay in his ease.

Post-Trial Delay

The following chronology outlines the post-trial delay in processing this 59-page, guilty plea record of trial:

DATE

DAYS ELAPSED ACTION TAKEN

14 Jan 03 Day 1 Trial & sentencing

25 Mar 03 Day 70 Authentication of record

9 Aug 04 Day 573 SJAR prepared

7 Mar 05 Day 783 CA takes action

7 Apr 05 Day 814 Record received at Navy Appellate Review Activity (ÑAMARA)

12 Apr 05 Day 819 Record docketed at Navy Marine Corps Court of Criminal Appeals (NMCCA)

28 Nov 05 Day 1,049 Appellant’s brief filed with NMCCA

27 Apr 06 Day 1,199 Government answer filed with NMCCA

We initially conduct a due process analysis in all claims of excessive post-trial delay where the delay is determined to be “facially unreasonable.” United States v. Moreno, 63 M.J. 129 (C.A.A.F.2006). If no constitutional violation is established, we then analyze the delay under our broad Article 66(c), UCMJ, mandate. United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F.2002); United States v. Brown, 62 M.J. 602 (N.M.Ct.Crim.App.2005)(en banc).

We consider four factors in determining if post-trial delay violates the appellant’s constitutional right to due process: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to a timely appeal; and (4) prejudice to the appellant. United States v. Jones, 61 M.J. 80, 83 (C.A.A.F.2005)(citing Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F.2004)). If the length of the delay itself is not unreasonable, there is no need for further inquiry. If, however, we conclude that the length of the delay is “facially unreasonable,” we must balance the length of the delay with the other three factors. Id. Moreover, in extreme eases, the delay itself may ‘“give rise to a strong presumption of evidentiary prejudice.’ ” Id. (quoting Toohey, 60 M.J. at 102).

In this case, the aggregate delay of 1,199 days between the date of appellant’s trial and final briefing to this court is facially unreasonable. Also facially unreasonable are the specific delays of 503 days between au[647]*647thentication of the record of trial and the staff judge advocate’s recommendation, and the 210 days thereafter until the convening authority took action.

The Government offers as an explanation for the delay in taking action on the court-martial that they were experiencing manpower shortfalls in the law center responsible for post-trial review of this record, due to multiple deployments in support of operations in Afghanistan and Iraq. Recently, our superior court has stated that reasons justifying delay in post-trial processing must be “case-specific delays supported by the circumstances of that case and not delays based upon administrative matters, manpower constraints or the press of other cases.” Moreno, 63 M.J. at 143. The court provided no guidance as to whether sudden deployments and matters of national defense that create such manpower shortages would be taken into consideration in determining whether such delays are reasonable.

We believe that such consideration is demanded by the veiy nature of deployable fighting forces, especially when those forces are expected to answer the call to arms under the austere budget and manpower constraints that are a reality in our nation today. There must be recognition in the post-trial arena of the concept of “excludable delay” for good cause shown, just as it is recognized in the pretrial arena. See, Rule for Courts-Martial 707(c), Manual for Courts-Martial, United States (2005 ed.); United States v. Longhofer, 29 M.J. 22 (C.M.A.1989). On the other hand, a fighting force must be aware of its obligations to maintain a rear echelon capable of continuing with administrative matters necessary to raise, train, and equip the armed forces of our country. To date, the Government has done little to address case-specific reasons for post-trial delay.

The appellant’s case, however, represents failure on both sides of the aisle with regard to speedy post-trial processing. The trial defense counsel states that he was co-located with the review shop and inquired as to the status of his cases, to no avail. Nowhere in the record, however, do we find a written record of such inquiries and no demand for speedy review. If, as the trial defense counsel asserted in responding to the staff judge advocate’s recommendation, the appellant’s due process rights were being trampled on by Government inaction, what efforts did he employ to actively expedite Government action and thus protect those rights on behalf of his client? The record is devoid of any evidence of such effort. In regard to the third factor mentioned above, the appellant only asserted his right to a speedy review of his trial when his appellate defense counsel filed his brief with this court.

Finally, the appellant has not asserted any prejudice as a result of this delay other than trial defense counsel and appellate defense counsel blaming their inability to contact the appellant as due to the time that has elapsed since trial. We specifically reject this assertion. On 14 August 2003, the appellant signed an acknowledgement of his appellate leave orders requiring him to keep his commanding officer apprised of any change of address during the term of his appellate leave. Additionally, the appellant acknowledged this requirement in January 2003 when he submitted a request for appellate leave. Finally, in an exhaustive written advisement of his appellate rights signed by him on 14 January 2003, the appellant acknowledged that he was required to keep his counsel informed of his current address in order to receive proper representation in the post-trial process. The appellate rights statement provided him with contact information for both his trial defense counsel and appellate defense counsel.

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Related

United States v. Canchola
64 M.J. 245 (Court of Appeals for the Armed Forces, 2007)

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Bluebook (online)
63 M.J. 649, 2006 CCA LEXIS 149, 2006 WL 1816382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-canchola-nmcca-2006.