United States v. Zegarrundo

• Court: United States Air Force Court of Criminal Appeals
• Decided: June 13, 2019
• Docket: ACM S32430 (F Rev)
• Status: Unpublished

Opinion

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________

No. ACM S32430 (f rev) ________________________

UNITED STATES Appellee v. Brandon M. ZEGARRUNDO Senior Airman (E-4), U.S. Air Force, Appellant ________________________

Appeal from the United States Air Force Trial Judiciary Upon further review Decided 13 June 2019 ________________________

Military Judge: J. Wesley Moore. Approved sentence: Bad-conduct discharge, confinement for 30 days, and reduction to E-1. Sentence adjudged 3 June 2016 by SpCM con- vened at Moody Air Force Base, Georgia. For Appellant: Major Allen S. Abrams, USAF; Major Patrick A. Clary, USAF; Major Megan E. Hoffman, USAF. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mi- chael T. Bunnell, USAF; Major Meredith L. Steer, USAF; Mary Ellen Payne, Esquire. Before MAYBERRY, HUYGEN, and KEY, Appellate Military Judges. Senior Judge HUYGEN delivered the opinion of the court, in which Chief Judge MAYBERRY and Judge KEY joined. ________________________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4. ________________________ United States v. Zegarrundo, No. ACM S32430 (f rev)

HUYGEN, Senior Judge: Appellant pleaded guilty at a special court-martial to a total of six specifi- cations involving attempted possession and possession, conspiracy to distrib- ute, and attempted use and use of multiple drugs, in violation of Articles 80, 81, and 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 881, 912a. 1 A panel of officers sentenced Appellant to a bad-conduct dis- charge, confinement for 30 days, reduction to the grade of E-1, and forfeiture of $1,044.00 pay per month for one month. The convening authority approved the adjudged sentence except for the forfeiture of pay. Appellant initially submitted his case on its merits with no specific as- signment of error. The court specified the following issue: whether Appellant is entitled to new post-trial processing consistent with the decision of the United States Court of Appeals for the Armed Forces (CAAF) in United States v. Addison, 75 M.J. 405 (C.A.A.F. 2016) (mem.), because the addendum to the staff judge advocate’s recommendation (SJAR) failed to correct an error in Appellant’s clemency submission. We determined that Appellant was so entitled and ordered new post-trial processing. United States v. Zegarrundo, 77 M.J. 612 (A.F. Ct. Crim. App. 2018). New post-trial processing has been accomplished, and we have Appel- lant’s case for further review. Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appellant filed two supplemental assignments of error: (1) that he was deprived of his right to a speedy trial for the 219-day delay be- tween the remand of his case and new action by the convening authority and the 181-day delay between the new action and the re-docketing of his case with the court and (2) that he suffered cruel and unusual punishment in vio- lation of the Eighth Amendment to the United States Constitution, U.S. CONST. amend. VIII, and Article 55, UCMJ, 10 U.S.C. § 855, for the 30 days of confinement during which he was subjected to solitary confinement and not given his prescription medications. 2 Exercising our authority under Unit- ed States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002), we affirm the findings and only so much of the sentence as provides for a bad-conduct discharge, confinement for 15 days, and reduction to the grade of E-1.

1All references in this opinion to the Uniform Code of Military Justice and Rules for Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.). 2We have considered the second supplemental assignment of error, which warrants no further discussion or relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).

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I. BACKGROUND On 31 January 2018, the court set aside the action of the convening au- thority and remanded Appellant’s case for new post-trial processing. The Government submitted a Motion for Reconsideration and Reconsideration En Banc, which was opposed by Appellant and denied by the court on 19 March 2018. On 27 March 2018, Appellant’s case was returned to the convening au- thority. The servicing legal office did not initiate new post-trial processing until 12 June 2018. On 18 June 2018, the staff judge advocate issued a rec- ommendation (SJAR). The defense counsel who assisted Appellant only dur- ing new post-trial processing requested and received a copy of Appellant’s record of trial and a second copy of the SJAR. On 14 July 2018, Appellant re- ceived his copy of the SJAR. On 17 July 2018, Appellant was granted a 20- day extension to submit clemency matters and submitted clemency matters through his defense counsel on 13 August 2018. The clemency matters were attached to the SJAR addendum, dated 27 August 2018. The convening au- thority took action on 7 September 2018, or 219 days after the court’s decision of 31 January 2018. After multiple attempts to obtain receipts from the trial defense counsel and Appellant, the servicing legal office forwarded the record of trial on 1 No- vember 2018. The record was received by the Air Force Legal Operations Agency, Military Justice Division (AFLOA/JAJM), on 8 November 2018. The court-martial order was not accomplished until 5 March 2019. Appellant’s case was docketed on 7 March 2019, or 181 days after the convening authori- ty’s action.

II. DISCUSSION Appellant contends that he was deprived of his right to a speedy trial by the 219-day delay between the remand of his case and action by the conven- ing authority as well as the 181-day delay between the action and the docket- ing of his case. Appellant supports his claim by citing United States v. More- no, 63 M.J. 129, 142 (C.A.A.F. 2006), and its determination of a presumptive- ly unreasonable delay when more than 120 days elapse between the end of trial and the convening authority’s action or when more than 30 days elapse between action and docketing. Appellant relies on Barker v. Wingo, 407 U.S. 514, 530 (1972), and United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002), to articulate bases for granting relief for post-trial delay. The Govern- ment also cites Moreno, Barker, and Tardif as the cases that address the is- sue raised by Appellant. We review de novo whether an appellant has been denied the due process right to a speedy post-trial review and appeal. Moreno, 63 M.J. at 135 (cita- tions omitted). A presumption of unreasonable delay arises when the conven-

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ing authority does not take action within 120 days of the completion of trial or when the case is not docketed with the appropriate service court of crimi- nal appeals within 30 days of action. Id. at 142. A presumptively unreasona- ble delay triggers an analysis of the four Barker factors: “(1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135 (cita- tions omitted). A presumptively unreasonable delay satisfies the first factor, but the Government “can rebut the presumption by showing the delay was not unreasonable.” Id. at 142. Assessing the fourth factor of prejudice, we consider the interests of “prevention of oppressive incarceration,” “minimiza- tion of anxiety and concern of those convicted,” and “limitation of the possibil- ity that . . . grounds for appeal, and . . . defenses . . . might be impaired.” Id. at 138–39. As did both parties, we apply the 120-day standard for the convening au- thority’s action to Appellant’s case, even though it was remanded for new post-trial processing. See United States v. Bailon, 2009 CCA LEXIS 149 at *3 (f. rev.) (A.F. Ct. Crim. App. 29 Apr. 2009) (unpub. op.). However, we agree with the Government, not Appellant, that the 120-day clock started when the record was returned to the convening authority on 27 March 2018, not when the court issued its opinion on 31 January 2018. Were we to find as Appellant contends—that, as in Bailon, the 120-day clock in Appellant’s case began ticking when the court issued its opinion—we would have to ignore the fact that the convening authority could not proceed with new post-trial processing while the Government’s Motion for Reconsideration and Reconsideration En Banc was pending before the court. We decline to do so. Instead, we start the clock when the record was returned to the convening authority and find that the length of the delay was 164 days, not 219 days, and the 120-day standard was exceeded by 44 days, not 99 days. We acknowledge that the reasons for the 164-day delay between return of the case and action of the convening authority included the Government’s ef- forts to satisfy the requests of the trial defense counsel for additional copies of documents and to obtain receipts from Appellant and his counsel. But we de- cline to hold Appellant responsible for any delay other than his requested and granted 20-day delay to submit clemency matters. Post-trial processing and its timeliness are responsibilities of the Government, and the delays, espe- cially those related to the Government’s attempts to obtain receipts, could have been mitigated by the Government had it been more proactive. Both parties agree that 181 days elapsed between the convening authori- ty’s action and the docketing of Appellant’s case and that the 30-day standard for this step of post-trial processing was exceeded by 151 days.

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The reasons for the 151-day delay involved another round of attempts by the servicing legal office to obtain receipts from Appellant and his counsel. When the legal office eventually asked on 31 October 2018 and was advised by AFLOA/JAJM to continue post-trial processing without the receipts, it ap- pears that the office forwarded the record in November 2018 and then stopped processing the case until reminded by AFLOA/JAJM in late Febru- ary or early March 2019 to produce the court-martial order. With regard to the third and fourth Barker factors, Appellant did not as- sert his right to timely post-trial processing at any time before he filed sup- plemental assignments of error on 18 March 2019. He also did not make any specific claim of prejudice. Considering the four Barker factors, we determine that Appellant has not been denied his due process right to timely post-trial processing and thus is not entitled to Moreno relief. Although we find no due process violation, we do grant Tardif relief, spe- cifically because of the 151-day delay between action and docketing. Contrary to the Government’s assertions, we cannot view as “negligible” or “modest” either the 151-day delay or the time that passed between action and docket- ing: 181 days, which was six times the 30 days allotted. We note in particular that, after the convening authority took action on 7 September 2018, 179 days elapsed before the legal office produced the court-martial order required by Rule for Courts-Martial 1111(b)(1) on 5 March 2019—and did so only after being reminded by AFLOA/JAJM. In Tardif, the CAAF recognized that “a Court of Criminal Appeals has au- thority under Article 66(c) to grant relief for excessive post-trial delay with- out a showing of ‘actual prejudice’ within the meaning of Article 59(a).” 57 M.J. at 224. Furthermore, we as a service court of criminal appeals are re- quired by Article 66(c), UCMJ, to determine which findings of guilty and the sentence or part thereof “should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c); see Tardif, 57 M.J. at 224. Although the 151-day delay between ac- tion and docketing was at least partially explained by the legal office’s at- tempts to obtain receipts and the unavailability of the judge advocate and paralegal primarily responsible for the post-trial processing of Appellant’s case, the delay was almost wholly unjustified and unreasonable. As a result, we consider not only the delay but also “all the facts and circumstances re- flected in the record,” id., and conclude that we should approve the findings of guilty and only so much of the sentence as provides for a bad-conduct dis- charge, confinement for 15 days, and reduction to the grade of E-1.

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III. CONCLUSION We approve only so much of the sentence as provides for a bad-conduct discharge, confinement for 15 days, and reduction to the grade of E-1. Article 66(c), UCMJ. The findings approved by the convening authority are correct in law and fact, and no error materially prejudicial to Appellant’s substantial rights occurred. Article 59(a), UCMJ, 10 U.S.C. § 859(a). Accordingly, the ap- proved findings and the modified sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court