United States v. Private (E2) DANTE J. ELLIS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, HERRING, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Private (E2) DANTE J. ELLIS
United States Army, Appellant
ARMY 20150827
Headquarters, 1st Cavalry Division (Rear)(Provisional)
Bernie LaForteza, Military Judge
Lieutenant Colonel Oren H. McKnelly, Staff Judge Advocate (pretrial)
Lieutenant Colonel Michael D. Jones, Staff Judge Advocate (recommendation)
Lieutenant Colonel Scott E. Linger, Staff Judge Advocate (addendum)
For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Lieutenant Colonel
Charles D. Lozano, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Melissa Dasgupta Smith, JA; Captain Jennifer A. Donahue, JA (on brief).
3 November 2016
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SUMMARY DISPOSITION
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CAMPANELLA, Senior Judge:
Where the government is responsible for 223 days of unexplained post-trial
delay in processing a ninety-two page record, we grant relief.
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of three specifications of being absent without leave, in
violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 (2012)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, six months of confinement, and reduction to the grade of E-1. The
military judge also credited appellant with forty-four days of pretrial confinement
credit against the sentence to confinement. Pursuant to a pretrial agreement, the
convening authority approved only so much of the adjudged sentence as provided for
a bad-conduct discharge, confinement for sixty days, and reduction to the grade of
E-1. He also approved forty-four days of confinement credit.
ELLIS—ARMY 20150827
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one allegation of error—dilatory post-trial processing—which merits relief.
LAW AND DISCUSSION
The panel sentenced appellant on 18 December 2015. Defense counsel
received the ninety-two page record of trial (ROT) for review on 21 January 2016
and completed her examination of the ROT on 7 March 2016. There is no indication
in the record as to when trial counsel completed his examination of the ROT. *
Defense counsel requested, and received, a twenty-day extension to submit matters
to the convening authority under Rule for Courts-Martial [R.C.M.] 1105. Article
60(b)(1), UCMJ, provides that an accused’s submissions to the convening authority
“shall be made within 10 days after the accused has been given an authenticated
record of trial and, if applicable, the recommendation of the staff judge advocate.”
If an accused shows additional time is required to submit matters, for “good cause”
the government “may extend the applicable period . . . for not more than an
additional 20 days.” UCMJ art. 60(b)(2) (emphasis added). The initial ten-day
period is attributable to the government, the next twenty-day period is attributable to
the defense. United States v. Banks, 75 M.J. 746, 2016 CCA LEXIS 483, at *5-6
(Army Ct. Crim. App. 16 Aug. 2016).
Of the 243 days from sentence to action, the defense is responsible for twenty
days and the government is responsible for 223 days. There is a presumption of
unreasonable delay where the convening authority does not take action within 120
days of the completion of trial. United States v. Moreno, 63 M.J. 129, 142
(C.A.A.F. 2006). The government concedes it cannot provide a reasonable
explanation for the length of the delay because no explanation can be found in the
record. Appellant did not assert his right to speedy post-trial processing and does
not claim prejudice because of the delay.
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 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 United States v. Collazo, 53 M.J. 721, 727
*
The time the trial counsel took to review the ROT does not count as defense delay.
See e.g. United States v. Toro, ARMY 20130441, 2015 CCA LEXIS 450, at *11 fn.
17 (Army Ct. Crim. App. 23 October 2015). Given the lack of information as to the
time the trial counsel took to review the ROT, we do not count the forty-six days
that defense counsel took to review the ROT as defense delay.
2
ELLIS—ARMY 20150827
(Army Ct. Crim. App. 2000). We find relief from this court is appropriate. As such
this court provides relief in our decretal paragraph.
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 extends to a bad-conduct discharge, confinement for thirty days, and
reduction to the grade of E-1. 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 HERRING and Judge PENLAND concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk
Clerk of
of Court
Court
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