United States v. Lieutenant Colonel CHARLES J. CLAYTON

• Court: Army Court of Criminal Appeals
• Decided: May 9, 2008
• Docket: ARMY 20070145
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before HOLDEN, HOFFMAN, and SULLIVAN Appellate Military Judges

UNITED STATES, Appellee v. Lieutenant Colonel CHARLES J. CLAYTON United States Army, Appellant

ARMY 20070145

Third Army, United States Army Central Richard Gordon, Military Judge

For Appellant: William E. Cassara, Esq., JA; Captain Frank B. Ulmer, JA (on brief).

For Appellee: Colonel John W. Miller II, JA; Major Elizabeth G. Marotta; Major Tami L. Dillahunt, JA; Captain Adam S. Kazin, JA (on brief).

9 May 2008

-------------------------------- SUMMARY DISPOSITION --------------------------------

Per Curiam:

This case is before us for review under Article 66, Uniform Code of Military Justice, 10 U.S.C. §866 [hereinafter UCMJ]. We find error in the findings of the court-martial as described below.

In the Specification of Charge I, appellant was charged with violation of lawful general orders by, inter alia, wrongful possession of adult and child pornography at Camp Arifjan and Camp Doha, Kuwait, in violation of Article 92, UCMJ. Appellant’s providence inquiry does not support his plea to the Camp Doha situs. Accordingly, we set aside the finding of guilty to and dismiss only so much of the Specification of Charge I as states, “and at or near Camp Doha, Kuwait” and affirm the finding of guilty to the specification as amended.

The remaining findings of guilty are affirmed. We have considered the assignments of error and find them to be without merit. Reassessing the sentence on the basis of the error noted, the entire record, and applying the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit, including Judge Baker’s concurring opinion, 63 M.J. 40, 43 (C.A.A.F. 2006), the court affirms the sentence.* FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court

* On 1 May 2008, we denied a defense motion for an 11 June 2008 oral argument, which claimed “[counsel] needs the requested time to complete his previously scheduled active duty training and to properly prepare for oral argument.” This court previously granted appellant’s “Motion for Expedited Review” in this case, which averred “neither claim [assignment of error] is novel or unusually complex.” Consistent with appellant’s request for expedited review and our superior court’s mandate, we issued a decision as expeditiously as possible while safeguarding appellant’s rights under Article 66, UCMJ. See United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006) (reviewing claims of post-trial and appellate delay using the four-factor analysis in Barker v. Wingo, 407 U.S. 514 (1972)); see also United States v. Finch, 64 M.J. 118, 125 (C.A.A.F. 2006) (noting appellant’s request for expedited review in evaluating appellant’s claim of dilatory post-trial processing).