United States v. Private E1 CHE D. MIDDLETON

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 CHE D. MIDDLETON
United States Army, Appellant
ARMY 20121121
Headquarters, III Corps and Fort Hood
Gregory A. Gross, Military Judge
Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)
Colonel Tania M. Martin, Staff Judge Advocate (post-trial)
For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major M. Patrick
Gordon, JA; Captain J. David Hammond, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie, III, JA; Major
John K. Choike, JA; Captain Scott L. Goble, JA (on brief).
30 April 2015
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of one specification of conspiracy to commit robbery, one
specification of reckless driving resulting in perso nal injury, two specifications
of robbery, one specification of forcible sodomy, and one specification of
kidnapping, in violation of Articles 81, 111, 122, 125, and 134, Uniform Code of
Military Justice, 10 U.S.C. § 881, 911, 922, 925, 934 (2006) [hereina fter
UCMJ]. Contrary to appellant’s pleas, the military judge convicted appellant of
one novel specification of jumping from a vehicle that was fleeing from the
police and running away from the police as they were chasing him resulting in
the police having to use a taser to subdue him more than one time, in violation
of Article 134, UCMJ. The military judge sentenced appellant to a dishonorable
discharge, confinement for forty-two years, and forfeiture of all pay and
MIDDLETON—ARMY 20121121
allowances. The convening authority approved twenty years of confinement and
the remainder of the sentence.
This case is before us for review pursuant to Article 66, UCMJ.
Appellant raises one assignment of error, which requires discussion and relief.
Specifically, appellant requests appropriate relief to remedy the dilatory post -
trial processing in his case. We agree that relief is appropriate. We also find
the matters raised personally by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982) are without merit.
The convening authority took action 567 days after the sentence was
adjudged. The record in this case consists of two volumes and the trial
transcript is 217 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. See 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 an d unreasonable post-trial
delay.”); see also 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).
The staff judge advocate signed the recommendation 218 days after the
military judge authenticated the record . Appellant raised the issue of dilatory
post-trial processing in his clemency submission. The staff judge advocate
acknowledged but did not explain the delay to the convening authority. While
the government has since explained the reasons for delay, documented reasons
for delay should be made part of the record and available for review at all
relevant times, including convening authority action. See United States v.
Moreno, 63 M.J. 129, 143 (C.A.A.F. 2006) (“We expect convening
authorities, reviewing authorities and the Courts of Criminal Appeals to
document reasons for delay and to exercise t he institutional vigilance that was
absent in Moreno's case.”); see also United States v. Canchalo, 64 M.J. 245
(C.A.A.F. 2007); United States v. Arias, 72 M.J. 501 (Army Ct. Crim. App.
2013); United States v. Bauerbach, 55 M.J. 501 (Army Ct. Crim. App. 20 01).
We find the reasons offered by the government are unreasonable under
the totality of circumstances.
CONCLUSION
Upon consideration of the entire record, the findings of guilty are
AFFIRMED. Given the dilatory post-trial processing, however, we affirm
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MIDDLETON—ARMY 20121121
only so much of the sentence as extends to a dishonorable discharge,
confinement for nineteen years and eleven months, and forfeiture of all pay
and allowances. All rights, privileges, and property, of which appellant has
been deprived by virtue of this decision setting aside portions of the findings
and sentence, are ordered restored.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of
Clerk of Court
Court
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