United States v. Garman

59 M.J. 677, 2003 CCA LEXIS 308, 2003 WL 22964579

• Court: Army Court of Criminal Appeals
• Decided: December 18, 2003
• Docket: ARMY 20020199
• Status: Published

Opinion

OPINION OF THE COURT

HARVEY, Senior Judge:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of methamphetamine use, and methamphetamine distribution (two specifications), in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a [hereinafter UCMJ]. The convening authority approved the adjudged sentence to a bad-conduct discharge, confinement for two months, forfeiture of “two-thirds monthly pay, which appears to be $737 per month a[t] the grade of El, during [appellant’s] term of confinement,” and reduction to Private El. This case is before the court for review pursuant to Article 66, UCMJ, 10 U.S.C. § 866.

Appellant asserts that he is entitled to relief for unreasonable delay in the post-trial processing of his ease. The government explains that the delay was caused by the military judge’s belated authentication of the record of trial (ROT) and argues that the government should not be held responsible for the military judge’s actions.

We look to the totality of the circumstances of the post-trial process and decline to grant relief for slow post-trial processing for five reasons: (1) trial defense counsel’s (TDC) objection to slow post-trial processing was dilatory and occurred 324 days after trial, well after appellant had been released from confinement; (2) after TDC objected to slow post-trial processing, the government expeditiously processed appellant’s case to the convening authority’s initial action; (3) although the government’s total post-trial processing time from the date the sentence was adjudged to the convening authority’s initial action (excluding defense processing time) was unexplained, it did not exceed 248 days; (4) slow post-trial processing was the only post-trial error; and, (5) appellant has not alleged or suffered any real harm or legal prejudice due to the slow post-trial processing in his case.

An error also occurred at trial when the military judge failed to clearly specify the time period for adjudged forfeitures. We will reduce the period of forfeitures to one month, but otherwise affirm the approved findings and sentence in our decretal paragraph.

POST-TRIAL PROCESSING

Facts

The following chronology details the post-trial processing of appellant’s case:

Cumulative Days Since Days After Date Post-Trial Activity Previous Sentence _Activity Adjudged

21 Feb. 2002 Sentence adjudged_n/a_0

19 Aug. 2002 Court reporter completes 155-page ROT_179_179

26 Aug. 2002 ROT mailed to TDC, who was located at Fort 7 186 _Lewis_

5 Sep. 2002 TDC signs ROT errata sheet_IT_196

16 Sep. 2002 TDC signs ROT authentication page, and 11 207 overnight mail used to deliver ROT to _military judge_

5 Nov. 2002 Military judge authenticates ROT_50_257

7 Nov. 2002 Staff judge advocate (SJA) signs post-trial 2 259 _recommendation (SJAR)_

12 Nov. 2002 TDC acknowledges receipt of the SJAR_5_264

11 Jan. 2003 TDC submits Rule for Courts-Martial [here- 60 324 inafter R.C.M.] 1105 matters and objects to _unreasonably slow post-trial processing_

Undated SJA signs SJAR addendum_unknown unknown

16 Jan. 2003 Convening authority approves adjudged 5 329 _ sentence

Deduction for transmittal and defense review of 329 days (trial to initial action) ROT (21 days) and defense submission of R.C.M.

1105 matters (60 days)_minus 81 days (defense time)

Total post-trial processing time from trial to convening authority’s initial action after 248 days deduction for transmittal and defense review_

The allied papers do not explain the 179-day delay for preparation of the 155-page ROT. Appellate government counsel submitted, however, an affidavit from the noncommissioned officer-in-charge (NCOIC), Courts and Boards, Fort Irwin, who indicated that his office had difficulty obtaining the military judge’s ROT authentication.

Sixty days elapsed between receipt of the SJAR by appellant’s first assigned TDC and delivery of appellant’s R.C.M. 1105 matters to the SJA. In this sixty-day period, first assigned TDC went on terminal leave. Then substitute TDC, Major A, had difficulty contacting appellant and obtaining letters of support.¹ During this time period, appellant’s TDC requested and the SJA or convening authority approved four delays for submission of appellant’s R.C.M. 1105 matters. Major A’s R.C.M. 1105 submission included a complaint about “inexcusable,” dilatory post-trial processing and noted that appellant had already served his adjudged confinement.

Discussion

Article 66, UCMJ, requires us “to determine what findings and sentence ‘should be approved,’ based on all the facts and circumstances reflected in the record, including the unexplained and unreasonable post-trial delay.” United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F.2002), remand to 58 M.J. 714 (C.G.Ct.Crim.App.2003), certif for rev. filed, Dkt. No. 03-5004/CG (C.AA.F.2003). “[Fjundamental fairness dictates that the government proceed with due diligence to execute a soldier’s regulatory and statutory post-trial processing rights and to secure the convening authority’s action as expeditiously as possible, given the totality of the circumstances in that soldier’s case.” United States v. Collazo, 53 M.J. 721, 727 (Army Ct.Crim.App.2000).

The Army, the chain of command, each victim, every person who knows about an offense, and most of all the accused, has an interest in the timely completion of courts-martial, to include the post-trial process---- Not only is untimely post-trial processing unfair to the soldier concerned, but it also damages the confidence of both soldiers and the public in the fairness of military justice, thereby directly undermining the very purpose of military law.

United States v. Bauerbach, 55 M.J. 501, 506 (Army Ct.Crim.App.2001); see also Tardif, 57 M.J. at 222 (stating accused has right to timely review of findings and sentence). While there may have been several reasons for the delay in appellant’s case, the only explanation the government chose to offer was a statement from the NCOIC of Courts and Boards, stating that his office made several unsuccessful attempts to contact the military judge to seek authentication of the ROT.

Military judge’s responsibility

The government urges us to deduct the military judge’s processing time, fifty days, from the overall post-trial processing time in appellant’s ease. That is, they urge us to deduct the time period from the date the ROT was mailed to the military judge to the date the military judge signed the authentication page. We disagree with this purely mathematical approach. The period of time for preparation of the ROT is attributable to the government when determining dilatory post-trial processing. See R.C.M. 1103(b)(1)(A) (providing that trial counsel shall cause preparation of ROT under direction of military judge); see generally United States v. Chisholm, 58 M.J. 733, 736 (Army Ct.Crim.App.2003) (discussing shared responsibility of trial counsel, the SJA, and the military judge to act in concert to expeditiously and affirmatively facilitate the post-trial process), aff'd, 59 M.J. 151 (C.A.A.F.2003) (per curiam).

The independent military judge must ensure that the record of trial is properly prepared before authentication. See id. The quality and length of the transcript, as well as the locations of the trial counsel, court reporter, and military judge, and then-other duties, may reasonably and substantially affect the authentication process.² We consider all the facts and circumstances of the authentication process in making our determination regarding dilatory post-trial processing. In appellant’s case, the military judge, a reservist located in Oregon, was absent from Fort Irwin and was not on active duty during the post-trial processing of appellant’s ease. The allied papers do not indicate whether his non-military responsibilities delayed his authentication. We therefore conclude that the fifty days that elapsed between the TDC’s review of the record and the military judge’s authentication³ of this 155-page ROT was unexplained and excessive.

An option that would have eliminated this delay is substitute authentication by trial counsel. See generally R.C.M. 1104(a)(2)(B) (discussing when substitute authentication authorized). We agree with the Navy-Marine Court of Criminal Appeals, which has explained why use of substitute authentication in such situations is appropriate:

[A] military judge’s release from active duty to inactive reserve status is sufficient to establish his absence for purposes of substitute authentication. Upon release from active duty, an inactive reservist assigned to a reserve judiciary billet is under no military obligation to perform judicial duties, even to review a record of trial for authentication. If he or she agreed to do so, it would still require the use of scarce administrative assets to track, deliver, and retrieve the records. To delay authentication of a record in this manner by not just a few days, but several weeks or more, serves no useful purpose; the unwarranted delay may actually impede the expeditious consideration of an accused’s clemency request.

United States v. Gibson, 50 M.J. 575, 576 (N.M.Ct.Crim.App.1999).

Trial defense counsel’s responsibility

Our court issued the Collazo opinion on 27 July 2000, providing sentencing relief, in part, because 313 days elapsed from trial to authentication. Collazo, 53 M.J. at 724-25. Our superior court published the Tardif opinion on 30 August 2002, in which the responsibility of trial counsel and defense counsel were emphasized, as follows:

[W]e note that counsel at the trial level are particularly well-suited to protect the interests of their clients by addressing post-trial delay issues before action by the convening authority. Trial counsel can ensure that the record contains an explanation for what otherwise might appear to be an unreasonable delay. Defense counsel can protect the interests of the accused through complaints to the military judge before authentication or to the convening authority after authentication and before action. After the convening authority’s action, extraordinary writs may be appropriate in some circumstances.

Tardif, 57 M.J. at 225. We have also issued numerous post-Collazo opinions, both published and unpublished, which discuss post-trial processing. See Appendix A. Additionally, post-trial processing has been a prominent training topic at The Judge Advocate General’s Legal Center and School and at other military justice conferences. See United States v. Bodkins, 59 M.J. 634, 637 (Army Ct.Crim.App.2003). As such, appellant’s TDC were on notice that they could object to slow post-trial processing. Nevertheless, they did not ask for expeditious processing or object to dilatory post-trial processing for 324 days.

“Defense counsel bear responsibility for timely submissions and we will not hold their undue delay against the government.” United States v. Maxwell, 56 M.J. 928, 929 (Army Ct.Crim.App.2002). Moreover, unwarranted and excessive TDC post-trial delay is an important element weighing against granting relief. “Appellant’s lengthy silence is strong evidence that he suffered no harm and that this is not an appropriate case for this Court to exercise its Article 66(c), UCMJ, authority.” United States v. Wallace, 58 M.J. 759, 775 (N.M.Ct.Crim.App.2003) (citing United States v. Fricke, 53 M.J. 149, 154 (C.A.A.F.2000)). Additionally, the convening authority took initial action on appellant’s case five days after TDC made her belated objection to slow post-trial processing. This expeditious processing after complaint was made is a significant factor militating against granting relief.

Standards for post-trial processing

In the aftermath of Collazo, concern has been frequently articulated about a lack of criteria or structure for determining whether post-trial processing was sufficiently slow to cause the sentence to become inappropriate.⁴ We also recognize that our Navy-Marine Corps brethren have denied relief in eases with longer post-trial processing times than cases where we have granted sentence relief. See Appendix A. We reject any suggestion that we adopt a bright-line time limit for post-trial processing. “Having suffered the problems inherent with the inflexibility of the [Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751, 1974 WL 13908 (1974)] rule, we are not anxious to return to it.” Collazo, 53 M.J. at 725, see also United States v. Hudson, 46 M.J. 226, 227 (C.A.A.F.1997) (rejecting “‘BRIGHT LINE’ test” and denying relief despite passage of 839 days between trial and initial action (citation omitted)). We also decline to embrace the standards for granting or denying relief that may be implied in the other services’ decisions.

When analyzing post-trial processing delays, our opinions frequently list, and trial and appellate counsel frequently cite, the time between the various steps of post-trial processing.⁵ However, we decline to parse post-trial processing into its component parts and base relief upon delays within this process. Instead, we determine whether the overall processing time was unreasonable and unexplained: (1) between the date the sentence was adjudged to the convening authority’s initial action,⁶ and (2) between the convening authority’s initial action to arrival of the record at our court.⁷

Our analysis usually addresses the number of pages in the ROT, recognizing that a lengthy ROT requires more time to transcribe, review, and authenticate. We also consider whether other post-trial processing errors, in combination with slow post-trial processing, resulted in an inappropriate sentence.⁸

Acceptable explanations [for slow post-trial processing] may include excessive defense delays in the submission of R.C.M. 1105 matters, post-trial absence or mental illness of the accused, exceptionally heavy military justice post-trial workload, or unavoidable delays as a result of operational deployments. Generally, routine court reporter problems are not an acceptable explanation.

Bauerbach, 55 M.J. at 507; see United States v. Scaggs, ARMY 20000056 (Army Ct.Crim. App. 12 Feb. 2002) (unpub.) (holding “an increase in the caseload within the jurisdiction” and a lack of a prior complaint by defense merited denial of sentence relief for 9-month delay between trial and initial action).

Post-trial processing in appellant’s special court-martial from trial to the convening authority’s initial action, after subtracting 81 days of defense delay took 248 days. This was significantly slower than the fiscal year 2003 Army average for special courts-martial of 134 days. See Appendix B. However, absent other post-trial processing errors or other unusual circumstances not present in this case, we decline to grant relief solely for unexplained post-trial processing of less than 248 days.⁹ In declining to grant relief, we in no way endorse the dilatory post-trial processing of appellant’s case.¹⁰ It was appellant’s complete lack of effort to seek expeditious processing for 324 days that was the most critical factor in our resolution of this issue. See United States v. Birge, 52 M.J. 209, 212 (C.A.A.F.1999) (highlighting lack of demand for speedy trial or release from pretrial confinement, and absence of motion for relief, as reasons for holding that Article 10, UCMJ, 10 U.S.C. § 810, issue not raised); Bodkins, 59 M.J. at 636-37 (holding waiver resulted where no defense objection to slow post-trial processing, while noting possible substantial benefits to appellant from slow post-trial processing).

Prejudice

Appellate defense counsel has not alleged and we do not find “ ‘real harm or legal prejudice’ ” to appellant from the slow post-trial processing in his case. United States v. Bell, 46 M.J. 351, 353-54 (C.A.A.F.1997) (citations omitted) (denying relief and holding no “substantial prejudice” or “substantial[ ] harm[]” from passage of 737 days between trial and initial action). Appellant was under no restraint, except at the very beginning of the post-trial processing of this case when he was serving his two months of adjudged confinement. A finding of such prejudice, however, is not a prerequisite for relief under Article 66, UCMJ. See Tardif, 57 M.J. at 224; Collazo, 53 M.J. at 727. “Lastly, and most telling, appellant, himself, did nothing to ascertain the status of his case during the many months of inactivity. Had he been prejudiced, we are certain that he would have complained.” United States v. Jenkins, 38 M.J. 287, 289 (C.M.A.1993).

Conclusion

Sentence relief may be appropriate for “unexplained and unreasonable post-trial delay” notwithstanding the absence of prejudice. Tardif, 57 M.J. at 224; see UCMJ art. 66(c). While there was unacceptably slow post-trial processing in appellant’s case, it was not so egregious under the totality of the circumstances as to render appellant’s otherwise appropriate sentence inappropriate.

FORFEITURES

The military judge adjudged two months of confinement and forfeiture of “two-thirds monthly pay, which appears to be $737 per month a[t] the grade of El, during [appellant’s] term of confinement.” We presume that appellant started his confinement immediately after trial, his adjudged forfeitures automatically went into effect fourteen days after his sentence was adjudged, see UCMJ art. 57(a)(1)(A), 10 U.S.C. § 857(a)(1)(A), and he left confinement and went on excess leave about fifty days after trial.¹¹

A forfeiture-of-pay provision must “clearly define” both the amount of pay to be forfeited and the period of time the forfeiture is to remain in effect. United States v. Rios, 15 U.S.C.M.A. 116, 118, 35 C.M.R. 88, 90, 1964 WL 4928 (1964). A sentence to partial forfeitures of pay shall state the “exact amount in whole dollars to be forfeited each month and the number of months the forfeitures will last.” R.C.M. 1003(b)(2). Unfortunately, both the military judge (when he adjudged appellant’s forfeitures) and the S JA (when he recommended approval of adjudged forfeitures to the convening authority) failed to comply with R.C.M. 1003(b)(2). This omission results in a “legal sentence of a forfeiture of the sum stated for one month only.” United States v. Guerrero, 25 M.J. 829, 831 (AC.M.R.1988), aff'd and modified on other grounds, 28 M.J. 223 (C.M.A.1989); see also Rios, 15 U.S.C.M.A. at 118, 35 C.M.R. at 90; United States v. Johnson, 13 U.S.C.M.A. 127, 128, 32 C.M.R. 127, 128, 1962 WL 4462 (1962); United States v. Gebhart, 32 M.J. 634, 635 & n. 1 (A.C.M.R.1991), aff'd, 34 M.J. 189 (C.M.A.1992). Accordingly, this court will approve a forfeiture of pay for only one month in our decretal paragraph.

The findings of guilty are affirmed. After considering the entire record, the court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement for two months, forfeiture of $737 pay for one month, and reduction to Private El. All rights, privileges, and property, of which appellant has been deprived by virtue of that portion of his sentence set aside by this decision, are ordered restored. See UCMJ art. 75(a), 10 U.S.C. § 875(a).

Judge BARTO and Judge SCHENCK concur.

Appendix A

Post-Trial Delay

Army Court of Criminal Appeals (ACCA) opinions listed below were decided after United States v. Collazo, 53 M.J. 721 (Army Ct.Crim.App.2000), which was decided on 27 July 2000. Other Courts of Criminal Appeals (CCA) opinions listed below were decided after the United States Court of Appeals for the Armed Forces (CAAF) decision in United States v. Tardif, 57 M.J. 219 (C.A.A.F.2002), which was decided on 30 August 2002. Information not provided in an opinion is left blank in the table, unless obtained from the Army Court-Martial Information System (ACMIS). Information derived from ACMIS is denoted by an asterisk

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Appendix B

Average Post-Trial Processing

Average Army post-trial processing time in days for general and special courts-martial that adjudged a bad-conduct discharge from Fiscal Year (FY) 1993 through FY 2003 is listed in the chart below. The date of receipt of the record of trial by the ACCA Clerk of Court is end-date for the purpose of calculating post-trial processing times. Information for these charts was obtained from monthly reports compiled by the ACCA Clerk of Court and the Army Lawyer.

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1 . "[Appellant] bears the responsibility for substitute counsel’s inability to communicate with him.” United States v. Tyson, 44 M.J. 588, 592 (N.M.Ct.Crim.App.1996); see United States v. Richter, 37 M.J. 615, 616 (A.C.M.R.1993). Appellant’s failure to maintain contact with his counsel or substitute counsel is another indication that appellant was unconcerned and not harmed by the delay in the post-trial processing of his case.

2 . See United States v. Bigelow, 57 M.J. 64, 69 (C.A.A.F.2002) (holding that 244-day delay from transcription to authentication was " 'neither unexplained nor inordinate,’ ” given that responsible parties were located in three different countries and multiple corrections by the military judge (citation omitted)); United States v. Toro Nmn Khamsouk, 58 M.J. 560, 562 (N.M.Ct.Crim.App.2003) (where no defense objection to delay, stating, "the fact that the military judge held the record for about 13 months does serve as a reasonable explanation for why the [convening authority] could not act in a more timely fashion”).

3 . The military judge made seven minor, insubstantial changes to the ROT.

4 . See Tardif, 57 M.J. at 230 (Sullivan, S.J., dissenting) (criticizing the lack of a standard in review of post-trial processing cases); Bauerbach, 55 M.J. at 506 (citing Major Timothy C. MacDonnell, United States v. Collazo: The Army Court of Criminal Appeals Puts Steel on the Target of Post-Trial Delay, 2000 ARMY LAW. 34, 38 (Nov.2000)).

5 . See, e.g., United States v. Delvalle, 55 M.J. 648, 654-56 (Army Ct.Crim.App.2001) (reducing 3-year confinement by 2 months where 10-month delay from trial to authentication for a 459-page record); Collazo, 53 M.J. at 723-27 (reducing 8-year confinement by 4 months where 10-month delay from trial to authentication and 1-year delay from trial to initial action for a 519-page record); United States v. Fussell, ARMY 9801022 (Army Ct.Crim.App. 20 Oct. 2000) (unpub.) (per curiam) (reducing 20-month confinement by 2 months where 242 days elapsed between trial and authentication of 133-page record).

6 . See, e.g., Bauerbach, 55 M.J. at 502, 507 (reducing 3-month confinement by 1 month where 288-day delay from trial to initial action for a 385-page record); United States v. Acosta-Ron-don, ARMY 9900458 (Army Ct.Crim.App. 30 Apr. 2001) (unpub.) (per curiam) (reducing 30-day confinement by 10 days where 7-month delay from trial to authentication and 9-month delay from trial to initial action for a 225-page record).

7 . See Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 37 (C.A.A.F.2003) (stating, “review spans a continuum of process from review by the convening authority ... to review by a Court of Criminal Appeals” (citation omitted)); see also, e.g., Tardif, 57 M.J. at 221, 224 (remanding case for service court to exercise authority under Article 66(c), UCMJ, where 115 days elapsed from initial action to forwarding of ROT to Coast Guard headquarters); United States v. Harms, 58 M.J. 515, 515-16 (Army Ct.Crim.App.2003) (setting aside all punishment except bad-conduct discharge because of a 32-month delay from initial action to receipt of ROT by Army Clerk of Court), aff'd, 59 M.J. 146 (2003); United States v. Nicholson, ARMY 20010638 (Army Ct.Crim.App. 15 Apr. 2003) (unpub.) (setting aside all approved confinement and forfeitures where 5-month delay from trial to authentication, 363-day delay from trial to initial action, and 73-day delay from initial action to receipt by Army Clerk of Court for a 184-page record).

8 . See, e.g., Collazo, 53 M.J. at 725-26 (in addition to slow post-trial processing, citing no service to appellant and late service (after initial action) to TDC of complete copy of ROT); United States v. Nicholson, 55 M.J. 551, 554-55 (Army Ct.Crim.App.2001) (granting unitary relief for two post-trial errors — an 80-day delay in preparation of SJAR and erroneous legal advice in the SJAR concerning waiver of forfeitures); United States v. Brown, ARMY 9900216, slip op. at 3-4 (Army Ct.Crim.App. 13 July 2001) (unpub.) (granting unitary sentencing relief "to moot any possible claim of prejudice” from three post-trial errors— a 232-day delay from trial to initial action; failure to address allegation of dilatory post-trial processing in SJAR addendum; and mistake in SJAR regarding pretrial confinement); United States v. Hansen, ARMY 20000532 (Army Ct.Crim.App. 10 May 2001) (unpub.) (granting unitary sentencing relief "to moot any possible claim of prejudice” from seven post-trial errors— a 4-month delay from trial to authentication of ROT; failure to address in SJAR addendum defense allegations of dilatory post-trial processing; and mistakes in SJAR about pretrial restriction, number of awards, number of children, maximum possible punishment, and appellant’s General Technical score).

9 . In three post-Collazo cases we granted sentencing relief, citing less than 250 days for post-trial processing time from trial to initial action; however, the court’s opinion also cited at least one additional post-trial processing error. See Nicholson, 55 M.J. at 554 (169 days); Brown, ARMY 9900216 (232 days); Hansen, ARMY 20000532 (195 days).

10 . See Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 138, 48 C.M.R. 751, 754, 1974 WL 13908 (1974) (holding 90 days from trial to initial action is dilatory post-trial processing where an accused is in post-trial confinement), rev’d, United States v. Banks, 7 M.J. 92, 93-94 (C.M.A.1979) (announcing prospective abandonment of Dunlap 90-day rule); United States v. Timmons, 22 U.S.C.M.A. 226, 227, 46 C.M.R. 226, 227, 1973 WL 14487 (1973) (holding that 180-day delay from trial to initial action is unreasonable).

11 . The record does not include what "good conduct time” credit or "extra good time” credit appellant earned while incarcerated. See Army Reg. 633-30, Apprehensions and Confinement: Military Sentences to Confinement, § III (28 Feb. 1989).