United States v. Hagler

7 M.J. 944, 1979 CMR LEXIS 606
U.S. Navy-Marine Corps Court of Military Review·Decided August 13, 1979·No. NCM 78 0174·Published·Cited by 16 cases

Opinion

GREGORY, Judge:

Appellant was tried by a general court-martial military judge, sitting alone. Pursuant to his pleas, appellant was found guilty of conspiracy to steal automobile parts, unauthorized absence of approximately 1 month, willful damage to privately owned automobiles (three specifications), and larceny of automobile parts from other Navy personnel (four specifications), in violation of Articles 81, 86, 109, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 886, 909, 921. He was sentenced to a bad-conduct discharge, confinement at hard labor for 8 months, and forfeiture of all pay and allowances. This sentence was within the terms of a pretrial agreement and was approved by the convening authority without modification.

Appellant commenced serving his sentence to confinement on 11 October 1977. He was designated a “base parolee” on 3 November 1977; however, that status was revoked on 6 December 1977 by the Corrections Officer because of alleged involvement with drugs by appellant. Subsequently, on 19 January 1978, appellant suffered the revocation of 15 days “good time credit” on his sentence by Commanding Officer, Naval Administrative Command, Naval Training Center, Great Lakes, Illinois, also because of alleged involvement with drugs.

On appeal, appellant alleges that the military judge erred in denying his motion to dismiss the charges for lack of a speedy trial; that he was denied due process of law in the revocation of the “good time credit”; and that he was denied due process of law in the revocation of his “base parolee” status.

We find merit in appellant’s contention concerning revocation of his “good time credit.” We will set forth our rationale as to each of appellant’s assigned errors.

I

Appellant moved to dismiss the charges for lack of a speedy trial prior to entry of his pleas. He renews his claim on appeal. The evidence of record, however, does not support this claim. A Chronology [947] of Events is included in the record as Appellate Exhibit 2. This Chronology reveals that appellant was originally confined on 29 June 1977 and released on 7 July 1977. After an alleged unauthorized absence of approximately 16 hours, he was placed in restriction on 20 July 1977, where he remained until 29 July 1977. After a second alleged unauthorized absence of approximately 32 hours, appellant was again placed in confinement on 1 August 1977 and remained in pretrial confinement until his trial commenced on 7 October 1977. As a result, a period of 100 days elapsed between the initial confinement of appellant and his trial; however, only 75 days were spent in confinement. Even if we were to consider the 9 days appellant spent in restriction the equivalent of additional pretrial confinement, see United States v. Schilf, 1 M.J. 251 (C.M.A.1976), the period would still not be sufficient to raise the presumption of lack of speedy trial enunciated in United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971).

Even though we find the Burton presumption not to be applicable to this case, we must still determine whether the Government has proceeded with reasonable diligence and without deliberate oppression of the appellant or a lack of concern for the requirement of expeditious prosecution. United States v. Powell, 2 M.J. 6 (C.M.A.1976); United States v. Amundson, 23 U.S. C.M.A. 308, 49 C.M.R. 598 (1975). This determination requires a functional analysis of all facts involved in the delay, including the length of the delay, the reasons for the delay, any demand for speedy trial by the appellant, and any specific prejudice to the appellant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The record of trial discloses no indication of prejudice to appellant in the preparation and presentation of his defense; nor is there any indication of an oppressive design or plan on the part of the Government to delay the start of appellant’s trial. The Chronology of Events reveals that appellant did submit a request for speedy trial on 16 September 1977; however, prompt steps were then taken to refer the charges to a general court-martial and to bring appellant to trial. The Chronology indicates that the initial Article 39(a), 10 U.S.C. § 839(a) session was held on 29 September 1977, only 13 days after appellant’s request for speedy trial. The Government appears to have complied completely with the second prong of United States v. Burton, supra, which addresses the Government’s obligation upon receipt of a request by an accused for speedy trial.

As previously noted, exactly 100 days were consumed in bringing this case to trial. This delay is longer than normal, although not what we would consider inordinate in comparison with other general courts-martial. We note that a considerable portion of the time was used in completion of the Naval Investigative Service investigation prior to commencement of the Article 32, 10 U.S.C. § 832 Pretrial Investigation. It is quite possible that the Pretrial Investigation could have begun earlier without awaiting completion of the Naval Investigative Service investigation; however, it appears doubtful that much time would have been saved because some of the evidence necessary to prosecute the case only became available late in the Naval Investigative Service investigation. Once the Pretrial Investigation did commence, the case appears to have progressed at a rapid pace.

Review of the Chronology of Events does indicate that there were several lapses when the Government could have moved more swiftly. It has long been held, however, that brief periods of inactivity in an otherwise active prosecution are not unreasonable or oppressive and that the touchstone for measurement of compliance with the provisions of the Uniform Code of Military Justice concerning the right to speedy trial is not constant motion but rather reasonable diligence in bringing the charges to trial. United States v. Tibbs, 15 U.S.C.M.A. 350, 35 C.M.R. 322 (1965). Examination of all the circumstances surrounding the delay in this case leads us to the conclusion that the Government proceeded with reasonable [948] diligence, without any deliberate oppression of appellant, and without any lack of concern for appellant’s right to expeditious prosecution. United States v. Powell and United States v. Amundson, both supra. Appellant has not been denied a speedy trial.

II

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