United States v. Private E2 JOSHUA J. CORONA

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, TELLITOCCI, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 JOSHUA J. CORONA
United States Army, Appellant
ARMY 20130106
Headquarters, United States Army Alaska
David L. Conn, Military Judge
Colonel Tyler J. Harder, Staff Judge Advocate
For Appellant: Major Amy E. Nieman, JA; Lieutenant Colonel David E. Coombs,
JA (on brief); Major Yolanda McCray Jones, JA; Lieutenant Colonel David E.
Coombs, JA (on reply brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Daniel D. Derner, JA; Captain Timothy C. Donahue, JA (on brief).
26 February 2015
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SUMMARY DISPOSITION
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HAIGHT, Judge:
A military judge sitting as a general court-martial presumably convicted
appellant, pursuant to his pleas, of involuntary manslaughter, in violation of Article
119(b)(1), Uniform Code of Military Justice, 10 U.S.C. § § 919(b)(1) [hereinafter
UCMJ]. The military judge sentenced appellant to a dishonorable discharge,
confinement for 6 years, forfeiture of all pay and allowances , and reduction to the
grade of E-1. Pursuant to a pretrial agreement, t he convening authority approved
only so much of the sentence as provided for a dishonorable discharge, confinement
for 48 months, forfeiture of all pay and allowances , and reduction to the grade of
E-1. The convening authority also credited appellant with 196 days against his
sentence to confinement.
This case is before us pursuant to Article 66, UCMJ. Appellant raises one
assignment of error, which merits discussion and relief. Also, one additional issue
merits further discussion and relief.
CORONA—ARMY 20130106
Post-Trial Processing
Appellant’s trial concluded on 4 February 2013. The convening authority did
not take action on this case until 14 January 2014, nearly a year later. As this
timeline exceeded the standard set forth in United States v. Moreno, 63 M.J. 129,
142 (C.A.A.F. 2006), trial defense counsel asserted this allegation o f legal error in
appellant’s Rule for Courts-Martial 1105 submission, and appellate defense counsel
again claims this same error of dilatory post -trial processing.
The court is particularly concerned that it took over two months from the time
review by the respective trial counsel was complete to even get the record to the
military judge, who then rapidly authenticated it. Also, after authentication, it took
the government two months to serve the record and staff judge advocate’s
recommendation on the accused at his place of confinement. Appellate defense
counsel rightly bolsters the complaint of lengthy post -trial processing by pointing
out other government missteps along the way. For example, in order to effectuate
service on the accused of his copy of the record of trial, the governme nt had to send
the record to the joint regional correctional facility (RCF) at Joint Base Lewis -
McChord twice, because the facility erroneously and inexplicably refused receipt on
the first attempt. Then, even more confounding, after the convening authori ty took
action, the promulgating order was erroneously mailed to the wrong confinement
facility, the United States Disciplinary Barracks in Kansas, instead of the
appropriate RCF. In fact, the personnel at the facility where appellant was actually
confined did not receive notice of the convening authority’s action until appellate
defense counsel, upon learning of the error, sent them a copy.
Manslaughter Conviction
Our review of this record and its various post-trial shortcomings revealed a
much more troubling oversight. The facts of this case are that on 22 July 2012, after
a night of socializing and drinking, appellant and his friend, Private (PVT) JC , went
back with other friends to appellant’s house and were talking. The two were not
arguing in any fashion, but appellant did say, “I’ll shoot you in the head.” To which
PVT JC replied, “Oh you won’t shoot me . . . just shoot me man.” The two went
into appellant’s bedroom and returned to the living room with appellant’s pistol.
Private JC voluntarily got down on his knees, and appellant ejected a round from the
pistol, thinking he had just cleared the weapon. He was mistaken. Appellant then
shot and killed PVT JC. See Manual for Courts-Martial, United States (2012 ed.)
[hereinafter MCM], pt. IV, ¶ 44.(b)(1), (f)(1).
Appellant was charged with, inter alia, manslaughter under Article 119,
UCMJ, by “willfully and unlawfully kill[ing] Private [JC] by shooting him in the
head with a pistol.” We highlight that the above language fully alleges the crime of
voluntary manslaughter.
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CORONA—ARMY 20130106
Appellant offered to plead guilty without exception or substitution to this
offense. The convening authority accepted this offer. At trial, appellant pleaded
guilty without exception or substitution to this charge. The militar y judge found
appellant guilty of this charge “in accordance with [appellant’s] plea.” All post -trial
documents, to include the Report of Result of Trial and the Promulgating Order,
indicate that appellant was convicted of a willful and unlawful killing or, in other
words, voluntary manslaughter.
However, notwithstanding all documents and formal pronouncements
pertaining to this court-martial, such as the Charge Sheet, the Pretrial A greement,
the plea, the findings, the Result of Trial, and the Promulgati ng Order, all parties
consistently treated this charge as one of involuntary manslaughter by culpable
negligence rather than the charged voluntary manslaughter by willful killing. The
problem lies in that all have acted, from trial until now, as if appellant was merely
charged with and stands only convicted of causing a death by culpable negligence .
But, to the contrary, all documents memorializing what happened at appellant’s trial
unambiguously signal to any outside observer, such as a clemency and par ole board,
that appellant was convicted of willfully killing another human being. This is
decidedly not a distinction without a difference.
At trial, after pleading guilty without exception to voluntary manslaughter,
the military judge stated, “Now, you have pled guilty to the Article 119 UCMJ
offense of involuntary manslaughter that was alleged in The Specification of Charge
II.” Neither counsel objected, asked for clarification, or even expressed any level of
awareness of the apparent inconsistency. The military judge proceeded to list for
appellant the elements of involuntary manslaughter to include the element of
culpable negligence. The military judge defined and explained “culpable
negligence.” The providence inquiry focused on this element and a ppellant readily
admitted his actions amounted to culpable negligence. Furthermore, the stipulation
of fact states the shooting of PVT JC “constituted culpable negligence.” When
discussing the maximum authorized punishment for this offense, all agreed th at the
maximum sentence included only 10 years of confinement as opposed to the 15 years
of confinement authorized in cases of voluntary manslaughter. See MCM, pt. IV,
¶ 44.(e)(1), (2). Finally and most curiously, despite the plain language of the
specification and appellant’s written offer to plead guilty to that specification as
charged, the military judge, when discussing the pretrial agree ment, stated that
appellant had agreed to plead guilty to involuntary manslaughter. The military
judge, the prosecution, the defense, and appellant all proceeded throughout trial as if
appellant was simply pleading guilty to a charged involuntary manslaughter.
This disconnect has persisted at every stage. While the Result of Trial and
the Promulgating Order reflect a conviction of voluntary manslaughter, both
appellate defense counsel and appellate government counsel, in their briefs to this
court, characterize appellant’s conviction as one of only involuntary manslaughter.
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CORONA—ARMY 20130106
For two years now, the pertinent document s of this case have left the impression
upon all not present in the courtroom on the day of trial that appellant was convicted
of a more serious crime than he actually was. We will provide relief .
Conclusion
We determine the dilatory post-trial processing in this case is compounded by
the other processing errors, not the least of which is the fact that the record does not
accurately reflect and, in fact, exaggerates what transpired at appellant’s trial. See
United States v. Garman, 59 M.J. 677, 682 (Army Ct. Crim. App. 2003) (examined
post-trial processing errors other than length of delay alone) ; United States v.
Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000). Not only will we exercise
our authority under Articles 59(b) and 66(c) to appro ve only a finding of guilty to
the lesser included offense of involuntary manslaughter, but we will also provide
sentence relief.
We AFFIRM only so much of the finding of guilty of the Specification of
Charge II as includes the lesser included offense of involuntary manslaughter by
culpable negligence. See UCMJ art. 119(b)(1). Further, we AFFIRM only so much
of the sentence as provides for a bad-conduct discharge, confinement for forty-two
(42) 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 the findings and
sentence set aside by this decision are ordered restored. See UCMJ arts. 58b(c) and
75(a).
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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