United States v. Private First Class TERELL L. KIZZEE ( 2019 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
ALDYKIEWICZ, SALUSSOLIA, and WALKER
Appellate Military Judges
UNITED STATES, Appellee
Vv.
Private First Class TERELL L. KIZZEE
United States Army, Appellant
ARMY 20180241
Headquarters, Fort Campbell
Matthew A. Calarco, Military Judge
Lieutenant Colonel Patrick L. Bryan, Staff Judge Advocate
For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major J. David Hammond,
JA (on brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H. Williams,
JA; Major Craig J. Schapira, JA; Captain Christopher K. Wills, JA (on brief).
12 December 2019
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
WALKER, Judge:
The unreasonable and unexplained post-trial delay in this case raised
substantial questions as to the appropriateness of appellant’s sentence. We therefore
reduce appellant’s sentence by one month and only affirm so much of the sentence as
provides for a bad-conduct discharge, confinement for three months, and reduction
to E-1.
Post-trial Delay
We review this case under Article 66, Uniform Code of Military Justice,
[UCMJ]. On appeal, appellant's sole assignment of error concerns the dilatory post-
trial processing of his case. Appellant alleges the government allowed 274 days to
elapse between sentencing and action and requests relief under United States v.
Moreno, 63 M.J. 129 (C.A.A.F. 2006). The government is accountable for each of
the 274 days that elapsed between announcement of sentence and the convening
authority’s action. United States v. Banks, 75 M.J. 746, 751 (Army Ct. Crim. App.
KIZZEE—ARMY 2018041
2016). The unreasonable post-trial processing of this case warrants relief as
discussed herein.
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of assault consummated by a battery and
burglary, in violation of Articles 128 and 129, 10 U.S.C. §§ 928 and 929, UCMJ
(2016). The convening authority approved the adjudged sentence of a bad-conduct
discharge, confinement for four months, and reduction to the grade of E-1.
After completion of appellant’s guilty plea, the government only took 22 days
to transcribe the 265-page record with the military judge then taking 20 days to
authenticate it. The authenticated record of trial and Staff Judge Advocate
recommendation (SJAR) to the convening authority were served on appellant 129
days after trial. Trial defense counsel took only six days to submit appellant’s
clemency matters. Most concerning to this court is that the government allowed 80
days to elapse between the time the military judge authenticated the record and
serving the SJAR on appellant, and another 139 days after submission of appellant’s
post-trial matters to attempt to serve the record of trial on the victim and complete
action. The facts and circumstances in this case do not justify the lengthy and
unexplained delays between authentication of the record and service of the SJAR and
between submission of clemency matters and action.
This court has two distinct responsibilities in addressing post-trial delay. See
United States v. Simon, 64 M.J. 205 (C.A.A.F. 2006). First, as a matter of law, this
court reviews whether claims of excessive post-trial delay resulted in a due process
violation. See U.S. Const. amend. V; Diaz v. Judge Advocate General of the Navy,
59 M.J. 34, 38 (C.A.A.F. 2003). Second, the court may grant an appellant relief for
excessive post-trial delay under our broad authority of determining sentence
appropriateness under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000). See United
States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002).
We review de novo whether appellant has been denied his due process right to
a speedy post-trial review. Moreno, 63 M.J. at 135. A presumption of unreasonable
post-trial delay exists when the convening authority fails to take action within 120
days of completion of trial. Jd. at 142. In Moreno our superior court adopted the
four-factor balancing test from Barker v. Wingo, 407 U.S. 514, 530 (1972), which
we employ when a presumption of unreasonable post-trial delay exists, to determine
whether the post-trial delay constitutes a due process violation: “(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.” Id. In assessing the fourth factor of
prejudice, we consider three sub-factors: “(1) prevention of oppressive incarceration
pending appeal; (2) minimization of anxiety and concern of those convicted awaiting
the outcome of their appeals; and (3) limitation of the possibility that a convicted
person's grounds for appeal, and his or her defenses in case of reversal and retrial,
KIZZEE—ARMY 2018041
might be impaired.” Jd. at 138-39 (quoting Rheuark v. Shaw, 628 F.2d 297, 303 n.8
(5th Cir. 1980)).
The first factor weighs in favor of appellant as 274 days is presumptively
unreasonable. The SJA completed a memorandum acknowledging that the post-trial
processing time in this case was presumptively unreasonable in that it exceeded the
120-day guideline outlined in Moreno. This memorandum was nothing more than a
recitation of the post-trial processing timeline and provided nothing in the way of an
explanation for the excessive delay between either authentication of the record and
service of the SJAR, or between submission of clemency matters and action. Thus,
the record is completely devoid of any explanation for those two lengthy periods of
time totaling 219 days.! Therefore, the second factor also weighs in favor of
appellant.” The third factor weighs in favor of the government as appellant did not
assert any objection to the post-trial processing of his court-martial until his
submission before this court. Regarding the fourth factor, appellant has not alleged
or demonstrated any particularized prejudice in his appeal. As such, the fourth
factor weighs in favor of the government.
Absent a finding of prejudice, we may find “a due process violation only
when, in balancing the other three [Moreno] factors, the delay is so egregious that
tolerating it would adversely affect the public’s perception of fairness and integrity
of the military justice system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F.
2006). Under these facts, we do not find the post-trial delay in appellant’s case so
egregious that he was denied his due process right to a speedy post-trial review.
However, this does not end this court’s analysis. In finding that the post-trial
delay was unreasonable but not unconstitutional, we turn to our “authority under
Article 66(c), UCMJ to grant relief for excessive post-trial delay without a showing
of ‘actual prejudice’ within the meaning of Article 59(a).” States v. Tardif, 57 M.J.
219, 224 (C.A.A.F. 2002) (citing United States v. Collazo, 53 M.J. 721, 727 (Army
Ct. Crim. App. 2000)). We must determine what findings and sentence “should be
approved” based on the facts and circumstances reflected in the record, including the
unexplained and unreasonable post-trial delay.” Tardif, 57 M.J. at 224.
' We draw attention to the concurring opinion in United States v. Mack emphasizing
the importance of ensuring accurate and timely post-trial processing which is the
responsibility of all military justice practitioners. ARMY 20120247, 2013 CCA
LEXIS 1016, *5 (Army Ct. Crim. App. 2013) (summ. disp.). “All practitioners,
especially staff judge advocates, must ensure that the rights of an accused are not
compromised, and that the interests of the government are protected.” Jd. at *7.
* We note that the government concedes that the first two factors weigh in favor of
appellant.
KIZZEE—ARMY 2018041
The post-trial processing in this case is not the example of diligence and
efficiency expected of the military. This is particularly true in a guilty plea to one
specification each of assault consummated by a battery and burglary, which the court
reporter transcribed a mere 22 days after trial. Despite the quick production of the
transcript, it took the government another 252 days to complete action, a dilatory
post-trial delay for which the government has offered no explanation. “Incidents of
poor administration reflect adversely on the United States Army and the military
justice system.” United States v. Carroll, 40 M.J. 554, 557 n.8 (A.C.M.R. 1994).
Having considered the entire record, the lack of any explanation by the government
to overcome Moreno’s presumption of unreasonableness, and the particular facts and
circumstances of this case, we find that appellant is entitled to relief and that a one
month reduction in the sentence is appropriate.
CONCLUSION
The findings of guilty are AFFIRMED. We grant relief in accordance with
Tardif, and affirm only so much of the sentence as provides for a bad-conduct
discharge, confinement for three months, and reduction to E-1. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of the sentence set aside by this decision are ordered restored.
Senior Judge ALDYKIEWICZ and Judge SALUSSOLIA concur.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
ALDYKIEWICZ, SALUSSOLIA, and WALKER
Appellate Military Judges
UNITED STATES, Appellee
Vv.
Private First Class TERELL L. KIZZEE
United States Army, Appellant
ARMY 20180241
IT IS ORDERED THAT, to reflect the true proceedings at the trial of the
above-captioned case,
GENERAL COURT-MARTIAL ORDER NUMBER 4, HEADQUARTERS,
FORT CAMPBELL, FORT CAMPBELL, KENTUCKY 42223, dated 13 February
2019,
IS CORRECTED AS FOLLOWS:
BY reflecting appellant’s name as “Terell L. Kizzee.”
BY deleting in footnote 2 the words “to the lesser-
included offense.”
DATE: 12 December 2019
FOR THE COURT:
“ans H. y JR.
Clerk of Court