United States v. Specialist MICHAEL J. MOODY ( 2015 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist MICHAEL J. MOODY
United States Army, Appellant
ARMY 20121083
Headquarters, XVIII Airborne Corps and Fort Bragg
Tara A. Osborn and David H. Robertson, Military Judges
Colonel Paul S. Wilson, Staff Judge Advocate (pretrial)
Colonel Michael O. Lacey, Staff Judge Advocate (recommendation)
Lieutenant Colonel Jerrett W. Dunlap, Jr., Staff Judge Advocate (addendum)
For Appellant: Mr. William E. Cassara, Esquire (argued); Captain Brian J. Sullivan,
JA; Mr. William E. Cassara, Esquire (on brief).
For Appellee: Captain Christopher A. Clausen, JA (argued); Major A.G Courie III,
JA; Major Daniel D. Derner, JA; Captain Christopher A. Clausen, JA (on brief).
29 October 2015
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SUMMARY DISPOSITION
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TOZZI, Senior Judge:
A general court-martial comprised of officer and enlisted members convicted
appellant, contrary to his pleas, of one specification of abusive sexual contact with a
child, and one specification of indecent liberties with a child, in violation of Article
120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2006) [hereinafter UCMJ].
The panel sentenced appellant to eight years confinement and a bad-conduct
discharge. The convening authority approved the findings and sentence as adjudged.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises four allegations of error, only one of which merits discussion and relief.
Appellant asks this court to provide appropriate relief to remedy the dilatory post-
trial processing of his case. We agree that relief is appropriate and grant thirty days
confinement credit.
MOODY—ARMY 20121083
LAW AND DISCUSSION
The convening authority took action 468 days after the sentence was
adjudged, 430 of which are attributable to the government. The record in this case
consists of seven volumes, and the trial transcript is 835 pages. Although we find no
due process violation in the post-trial processing of appellant’s case, we must still
review the appropriateness of the sentence in light of the unjustified dilatory post-
trial processing. UCMJ art. 66(c); United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ, service courts are] required to
determine what findings and sentence ‘should be approved,’ based on all the facts
and circumstances reflected in the record, including the unexplained and
unreasonable post-trial delay.”). See generally United States v. Toohey, 63 M.J.
353, 362-63 (C.A.A.F. 2006); United States v. Ney, 68 M.J. 613, 617 (Army Ct.
Crim. App. 2010); United States v. Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App.
2000).
It took 183 days to transcribe the record of trial in this case. It took over 113
days from the date of receipt for one of the military judges to authenticate the record
of trial. The government provided an explanation in its post-trial submissions for
this delay, citing a backlog of cases, the government shutdown, and short staffing of
court reporters. Further, as annotated in a memorandum, one of the military judges
was on temporary duty away from Fort Bragg, North Carolina, for a significant
period of time after receipt of the record of trial for review and authentication,
presiding over a complicated capital murder trial at Fort Hood, Texas. Despite this
explanation, the delay between announcement of sentence and action could
“adversely affect the public’s perception of the fairness and integrity of military
justice system . . . .” Ney, 68 M.J. at 617. Thus, we find that relief is appropriate
under the facts of this case.
CONCLUSION
Upon consideration of the entire record, the findings of guilty are
AFFIRMED. Given the dilatory post-trial processing, however, we affirm only so
much of the sentence as provides for confinement for seven years and eleven months
and a bad-conduct discharge. 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).
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MOODY—ARMY 20121083
Judge CAMPANELLA and Judge CELTNIEKS concur.
FOR
FORTHE
THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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