United States v. Sergeant TODD D. SEWELL

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant TODD D. SEWELL
United States Army, Appellant
ARMY 20130460
Headquarters, III Corps and Fort Hood
James L. Varley, Military Judge
Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)
Colonel Ian G. Corey, Staff Judge Advocate (post-trial)
For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Christopher D.
Coleman, JA; Captain Ryan T. Yoder, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain
Linda Chavez, JA (on brief).
29 January 2016
----------------------------------
SUMMARY DISPOSITION
----------------------------------
TOZZI, Senior Judge:
A general court-martial comprised of officer and enlisted members convicted
appellant, contrary to his pleas, of six specifications of indecent acts, and one
specification of assault with intent to commit rape, in violation of Article 120 and
134 Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934 (2006 & 2012)
[hereinafter UCMJ]. The panel sentenced appellant to a dishonorable discharge,
confinement for one year, forfeiture of all pay and allowances, and reduction to the
grade of E-1. The convening authority approved the findings and sentence as
adjudged and credited appellant with seventeen days of confinement.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one allegation of error which merits discussion and relief. The matters raised
by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) are
without merit. Appellant asks this court to provide appropriate relief to remedy the
dilatory post-trial processing of his case. We agree that relief is appropriate in this
case and grant thirty days confinement credit.
SEWELL—ARMY 20130460
LAW AND DISCUSSION
The convening authority took action 575 days after the sentence was adjudged,
at least 432 of which are attributable to the government. The record in this case
consists of ten volumes, and the trial transcript is 1,028 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 295 days to serve the record of trial on appellant’s defense counsel in
this case. The government provided no explanation for this delay. Assuming
arguendo the government’s assertion that 143 days are attributable to the defense in
the post-trial processing of this case, a total of 432 days to process this case from
sentence to convening authority action is simply too long. The unexplained 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, we affirm only so much of the
sentence as provides for a dishonorable discharge, confinement for eleven months,
forfeiture of all pay and allowances, and reduction to the grade of E-1. Consistent
with the pretrial confinement credit awarded by the military judge, which was
approved by the convening authority, appellant will also be credited with seventeen
days against his sentence to confinement. 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).
Judge CAMPANELLA and Judge CELTNIEKS concur.
FOR
FOR THE
THE COURT:
COURT:
JOHN P. TAITT
JOHN
Deputy P. TAITT
Clerk of Court
Deputy Clerk of Court
2