United States v. Sergeant JOHN W. BRINSON JR. ( 2014 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, TELLITOCCI, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant JOHN W. BRINSON JR.
United States Army, Appellant
ARMY 20120887
Headquarters, Fort Hood
Patricia H. Lewis, Military Judge
Colonel Stuart W. Risch, Staff Judge Advocate (pretrial and recommendation)
Colonel Richard W. Rousseau, Staff Judge Advocate (addendum)
For Appellant: Major Vincent T. Shuler, JA; Major Kevin F. Sweeney, JA (on
brief).
For Appellee: Lieutenant Colonel James L. Varley, JA (on brief).
24 July 2014
---------------------------------
SUMMARY DISPOSITION
---------------------------------
HAIGHT, Judge:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his plea, of one specification of absence without leave, in violation of
Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 [hereinafter UCMJ].
The military judge sentenced appellant to a bad-conduct discharge, confinement for
six months, and reduction to the grade of E-1. Pursuant to a pretrial agreement, the
convening authority approved only so much of the sentence as provided for a bad-
conduct discharge, confinement for two months, and reduction to the grade of E-1.
The convening authority credited appellant with five days of confinement credit.
This case is before us pursuant to Article 66, UCMJ. Appellate defense
counsel submitted the case for appellate review on its merits. However, appellant
also personally raised several issues pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), only one of which merits discussion and relief.
BRINSON—ARMY 20120887
Background
Appellant’s court-martial adjourned on 24 September 2012. On 14 November
2013, 417 days later, the convening authority took action. This period includes an
initial 249 days for the government to transcribe the 74-page record of trial and
deliver it to the military judge for authentication on 31 May 2013. The military
judge authenticated the record 48 days later, on 18 July 2013. Another 51 days
elapsed before the Staff Judge Advocate (SJA) completed his initial post-trial
recommendation (SJAR) to the convening authority on 7 September 2013. Defense
counsel took more than a month to submit clemency matters on appellant’s behalf,
and the addendum to the SJAR was not completed until four weeks later. Following
the convening authority’s action, another 50 days elapsed before this court received
the record of trial from Fort Hood, Texas on 3 January 2014.
In the clemency matters submitted on behalf of appellant pursuant to Rule for
Courts-Martial [hereinafter R.C.M.] 1105, defense counsel alleged the government
violated the post-trial processing standards recognized by our superior court in
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and requested the convening
authority disapprove the findings and accept appellant’s request for a discharge in
lieu of court-martial or, alternatively, disapprove the adjudged bad-conduct
discharge. In his addendum, the SJA “disagree[d]” with this assertion and
concluded “[n]o corrective action [was] required” and “clemency [was] not
warranted” in appellant’s case. The record of trial is devoid of any explanation or
justification for post-trial processing time which took close to 14 months.
Dilatory Post-Trial Processing
In Moreno, our superior court established timeliness standards for various
stages of the post-trial and appellate process. 63 M.J. at 142-43. Specifically,
action of the convening authority should be taken no later than 120 days after
completion of the trial, and the record of trial should be docketed with this court
within 30 days of the convening authority’s action. Id. 1 Failure to satisfy any of
these standards creates a “presumption of unreasonable delay,” prompting this court
to apply and balance the four factors set out in Barker v. Wingo, 407 U.S. 514, 530
(1972), to determine whether appellant’s due process rights were violated. See
Moreno, 63 M.J. at 136.
The first factor, length of delay, plainly weighs in appellant’s favor. Here,
the post-trial processing standards for the completion of the convening authority’s
1
A third standard, timeliness of appellate review before this court, is not relevant in
appellant’s case. Moreno, 63 M.J. at 142-43.
2
BRINSON—ARMY 20120887
action and for docketing appellant’s case with this court have each been exceeded by
a significant margin. We therefore proceed to the remaining three factors, beginning
with “[r]easons for the delay.” Id. Here, the government has offered none and we
will not speculate in a vacuum. The third factor, assertion of the right to a timely
review and appeal, also weighs in appellant’s favor, as defense counsel submitted a
“Request for Speedy Post Trial Processing” to the SJA approximately six and a half
months after appellant’s trial concluded.
However, despite the delays, appellant’s assertion of this issue before the
convening authority and this court, and the absence of any explanation by the
government for its dilatory processing, appellant is still not entitled to relief
pursuant to Moreno. Appellant has failed to demonstrate that he suffered any
prejudice 2 as a result of the delays, and we find this absence outweighs the first
three factors to a degree that we can confidently conclude his due process rights
were not violated. Id. at 138. Specifically, we find no prejudice after reviewing
each of the three sub-factors found in Moreno. 3 Additionally, while the post-trial
delay here is excessive, it is not “so egregious that tolerating it would adversely
affect the public’s perception of the fairness and integrity of the military justice
system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). Nonetheless,
appellant is not foreclosed from relief for the government’s delays.
Even in the absence of actual prejudice from unreasonable post-trial
processing, this court is still authorized to grant relief for excessive delay in our
assessment of the appropriateness of appellant’s sentence pursuant to Article 66(c),
UCMJ. See United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); United States
v. Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000). Here, a delay of nearly
14 months to process a 74-page record of trial coupled with an additional 50 days to
transport the record to this court is excessive and warrants relief. As such, we
provide relief in our decretal paragraph below.
2
Appellant’s pleading before this court makes only a brief, general, and unsupported
reference to “stress and anxiety” the delays in processing caused him.
3
(1) Oppressive incarceration pending appeal; (2) Particularized anxiety and
concern; and (3) Impairment of ability to present a defense at rehearing. Moreno, 63
M.J. at 138-41.
3
BRINSON—ARMY 20120887
Conclusion
The findings of guilty are AFFIRMED. After considering the entire record
and those matters personally raised by appellant pursuant to Grostefon, 12 M.J. 431,
we affirm only so much of the sentence as provides for a bad-conduct discharge,
confinement for one month, and reduction to the grade of E-1. 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 arts. 58b(c) and
75(a).
Senior Judge COOK and Judge TELLITOCCI concur.
FOR THE COURT:
ANTHONY O. POTTINGER
ANTHONY
Chief O. ofPOTTINGER
Deputy Clerk Court
Chief Deputy Clerk of Court
4