United States v. Sergeant MARK TODD

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
YOB, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant MARK TODD
United States Army, Appellant
ARMY 20111160
Headquarters, U.S. Army Special Forces Command
Tara A. Osborn, Military Judge
Lieutenant Colonel Alison C. Martin, Staff Judge Advocate
For Appellant: Lieutenant Colonel Peter Kageleiry, Jr., JA; Major Jacob D.
Bashore, JA; Captain Aaron R. Inkenbrandt, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley,
JA (on brief).
17 May 2013
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SUMMARY DISPOSITION
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KRAUSS, Judge:
A military judge sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of conspiracy to commit wrongful distribution of marijuana,
wrongful possession of marijuana with the intent to distribute, larceny of weapons
parts and other military property of a value more than $500.00, and unlawful
possession of unregistered firearms in violation of 26 U.S.C. § 5861(d) in violation
of Articles 81, 112a, 121, and 134, Uniform Code of Military Justice, 10 U.S.C. §§
881, 912a, 921, 934 (2006) [hereinafter UCMJ]. The military judge sentenced
appellant to a dishonorable discharge, confinement for fifty-two months, and
reduction to the grade of E-1. Pursuant to a pretrial agreement the convening
authority approved the dishonorable discharge, forty-two months confinement, and
reduction to the grade of E-1.
TODD — ARMY 20111160
This case is before the court for review under Article 66, UCMJ. Appellant
asserts that he was denied a full and fair opportunity to submit clemency matters to
the convening authority due to the deficient performance of his trial counsel. He
also raises a number of matters pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982). Though we agree that defense counsel was deficient, and despite the
government’s concession on the issue of clemency, we hold that appellant here fails
to establish the prejudice necessary to warrant relief. We do agree with appellant
that the unexplained and excessive post-trial delay associated with transmission of
his case to this court does warrant relief.
Appellant offers sworn affidavits to establish the fact and content of the
additional letters he asserts counsel failed to submit with the rest of his clemency
matters. The government declines to invite the rigamarole of competing affidavits
and concedes that a new review and action is best under the circumstances. For the
purposes of this decision we will assume that trial defense counsel failed to file two
of nine letters appellant desired to submit to the convening authority for his
consideration on clemency. This failure constitutes deficient performance under the
circumstances. See United States v. Hood, 47 M.J. 95, 97 (C.A.A.F. 1997); United
States v. Hicks, 47 M.J. 90, 93 (C.A.A.F. 1997); United States v. Lewis, 42 M.J. 1, 4
(C.A.A.F. 1995). However, such deficiency does not warrant automatic return for a
new review and action. Appellant must also show sufficient prejudice to his
opportunity to obtain clemency to warrant that relief. United States v. Lee, 52 M.J.
51, 53 (C.A.A.F. 1999).
Defense counsel submitted seven letters for consideration by the convening
authority in deciding whether to grant appellant clemency. One letter was from
appellant himself. The remaining six letters were from appellant’s family members.
In general, the letters described appellant’s qualities, his difficult upbringing, the
family’s support for appellant, and requests for clemency. The two letters counsel
failed to submit also come from appellant’s family members and, though they might
offer more detail about appellant’s family difficulties, each contain essentially the
same message as the seven letters submitted. Appellant offered information similar
to that contained in the letters, including his difficult upbringing, at trial and
pursuant to a pretrial agreement enjoyed a ten month reduction in the sentence meted
out by the court-martial. Though we acknowledge the impropriety of defense
counsel’s assumed failure, we do not find any “‘‘reasonable probability’ of more
favorable action by the convening authority’ absent [counsel’s deficiency]” and do
not find that appellant “‘makes some colorable showing of possible prejudice.’”
United States v. Clemente, 51 M.J. 547, 551-52 (Army Ct. Crim. App. 1999); Lee, 52
M.J. at 53 (citations omitted). Therefore a new review and action is unwarranted.
Turning to appellant’s complaint over post-trial delay, we apply a
presumption of unreasonable government delay in cases where the record of trial is
not docketed at this court within thirty days of convening authority action. United
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TODD — ARMY 20111160
States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Here the government, without
any explanation, took sixty days to docket this case with our court. Though we find
no prejudice as a result of this excessive delay, the court must still review the
appropriateness of the sentence in light of unjustified dilatory post-trial processing.
UCMJ art. 66(c). See generally United States v. Toohey, 63 M.J. 353, 362–63
(C.A.A.F. 2006); United States v. Moreno, 63 M.J. 129, 143 (C.A.A.F. 2006); United
States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); United States v. Ney, 68 M.J.
613, 616–17 (Army Ct. Crim. App. 2010). Reviewing the entire record of trial, and
in light of the government’s failure to provide any reason for the excessive time it
took to docket the case with this court, along with the particular circumstances of
this case, we find it appropriate to set aside one month of appellant’s sentence to
confinement.
CONCLUSION
The findings of guilty are AFFIRMED. We have considered the entire record,
including those matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). After considering the entire record, the
court affirms only so much of the sentence as provides for a dishonorable discharge,
confinement for 41 months, 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 her
sentence set aside by the decision, are ordered restored. See UCMJ arts. 58b(c) and
75(a).
Senior Judge YOB and Judge BURTON concur.
FOR THE COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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