United States v. Private E1 ZACHARIAH A. BRASWELL ( 2017 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 ZACHARIAH A. BRASWELL
United States Army, Appellant
ARMY 20150596
Defense Language Institute Foreign Language Center and Presidio of Monterey
Sean F. Mangan, Military Judge
Lieutenant Colonel Tiernan Dolan, Staff Judge Advocate (pretrial)
Lieutenant Colonel Daniel A. Tanabe, Staff Judge Advocate (post-trial)
For Appellant: Colonel Mary J. Bradley, JA; Captain Joshua G. Grubaugh, JA;
Captain Cody Cheek, JA (on brief); Lieutenant Colonel Christopher D. Carrier, JA;
Captain Scott Martin, JA; Captain Cody Cheek, JA (on reply brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Michael E. Korte, JA (on brief).
30 October 2017
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SUMMARY DISPOSITION
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Per Curiam:
In this appeal, appellant is the co-accused of United States v. Schrader,
ARMY 20150744, 2017 CCA LEXIS 406 (Army Ct. Crim. App. 16 June 2017)
(mem. op.), where we set aside specifications related to Schrader’s introduction and
distribution of amphetamine, a Schedule II controlled substance because there was a
substantial basis in law and fact to question Schrader’s guilty plea. See United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). However, for reasons we
explain, we reach a different conclusion in this case and affirm the findings and
sentence.
Here, a military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of conspiracy to distribute controlled
substances, four specifications of wrongful use of a controlled substance, three
specifications of wrongful distribution of a controlled substance, and one
specification of wrongful introduction of a controlled substance in violation of
BRASWELL—ARMY 20150596
Articles 81 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 912a
(2012) [hereinafter UCMJ], and thereafter sentenced appellant to a bad-conduct
discharge, confinement for fourteen months, and reduction to the grade of E1. The
convening authority, pursuant to a pretrial agreement, approved the sentence except
for that portion of confinement in excess of nine months.
Appellant comes before us pursuant to Article 66, UCMJ, and seeks relief for
dilatory post-trial processing. His request warrants discussion but not relief. 1
However, we find one issue, appellant’s alleged possession of amphetamines vice
alprazolam, raised by appellant personally pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982) to warrant discussion but not relief.
DISCUSSION
A. Dilatory Post-Trial Processing
Appellant asks we provide sentencing relief because it took 181 days for the
convening authority to take action on appellant’s case, and an additional eighty-six
days from action to receipt by this court. Appellant alleges no prejudice but asks us
nonetheless to grant relief. Specifically, appellant states we should “grant relief to
make clear that unreasonable delays in the military justice system will not be
tolerated.”
As we have stated previously: “[W]e look at our role more narrowly than does
appellant. In cases of post-trial delay not amounting to a due process violation, we
must still determine whether under Article 66(c), UCMJ[,] the sentence ‘should be
approved.’” United States v. Blevins, ARMY 20160165, 2017 CCA LEXIS 296, *3
(Army Ct. Crim. App. 26 Apr. 2017) (sum. disp). Here, we find no due process
violation occurred as a result of the post-trial delay, recognizing that a sentence may
be correct in law and fact but still be inappropriate.
“If the sentence is just outright too severe, our duty is to lower the sentence
such that it ‘should be approved.’” Id. at *4. In this case where there is
unreasonable post-trial delay, we examine whether the unreasonable delay turned
what may have been an appropriate sentence for appellant’s crimes into an
inappropriate sentence. Id. Specifically, we ask if the sentence as approved in this
case that includes nine months of confinement is too severe a punishment given
appellant's offenses, the sentencing evidence, and the unreasonable delay by the
convening authority.
1
We note that the military judge incorrectly dismissed the specifications of Charge I
and Specification 2, of Charge III after having previously announced findings of not
guilty.
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BRASWELL—ARMY 20150596
The approved sentence remains lenient for appellant’s offenses, even when we
consider the unreasonable post-trial delay. The unexcused delay of eighty-six days
to forward the record to this court shows a lack of rigor in the post-trial process of
this jurisdiction that warrants attention. However, the post-trial delay in appellant’s
court-martial did not make appellant’s sentence inappropriate.
B. Appellant’s Guilty Plea
While appellant was assigned to the Presidio of Monterey, he used and
distributed a range of drugs to fellow soldiers and airmen to include marijuana,
cocaine, amphetamine, and hydromorphone. Among other charges, the government
charged appellant with distributing amphetamine and introducing amphetamine onto
the Presidio of Monterey with the intent to distribute. And, indeed, appellant
believed he possessed amphetamine, stipulated to possessing amphetamine in the
stipulation of fact, and admitted to the same in the providence inquiry. Whereas in
Schrader, the appellant there did not admit to possessing amphetamine, and, in fact,
what Schrader possessed was not amphetamine, but instead alprazolam, which
became known to all parties by the time of Schrader’s trial. Schrader, 2017 CCA
LEXIS at *2-4.
Here, as in Schrader, appellant’s stipulation of fact contains a footnote
explaining “[a]t all times [appellant] believed the substance he acquired, distributed
and used was amphetamine, but there is evidence (Prosecution Exhibit #9) the
substance may have been Alprazolam [a Schedule IV controlled substance].”
(emphasis added). To the extent the footnote creates an inconsistency in the record,
the military judge resolved any inconsistency during the providence inquiry. The
remaining portions of the stipulation of fact and, more importantly, the providence
inquiry resolve any factual inconsistency regarding appellant’s guilt for the
specifications in question. Put simply, here appellant told the judge the drug he
possessed was amphetamine.
Notably, the drugs seized by law enforcement and tested in Prosecution
Exhibit Nine were not the basis of the specifications in question. The drugs
appellant introduced and distributed in Specifications 6, 7, and 9 of Charge III were
not tested—because appellant had sold them. Appellant explained he purchased ten
pills of amphetamine that were later distributed.
The standard of review is whether the military judge’s decision to accept
appellant’s guilty plea was an abuse of discretion. See Inabinette, 66 M.J. at 322
(citing United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996)). “[I]n reviewing a
military judge's acceptance of a plea for an abuse of discretion[,] appellate courts
apply a substantial basis test: Does the record as a whole show ‘a substantial basis in
law and fact for questioning the guilty plea.’” Id. (citing United States v. Prater, 32
M.J. 433, 436 (C.M.A. 1991)); see also UCMJ art. 45(a); Rule for Court-Martial
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BRASWELL—ARMY 20150596
[hereinafter R.C.M.] 910(e). The basis for the rejection of a guilty plea must be
sufficient to overcome the notion that the plea waives any objection as to the factual
issue of guilt concerning the offense in question. R.C.M. 910(j). Reading the
footnote in the stipulation of fact in the context of the entirety of appellant’s
colloquy with the military judge, we find no “substantial basis” to question the plea.
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.
FOR
FORTHE
THECOURT:
COURT:
MALCOLMH.
MALCOLM H.SQUIRES,
SQUIRES,JR.
JR.
Clerk of Court
Clerk of Court
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