United States v. Specialist PATRICK E. MYERS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist PATRICK E. MYERS
United States Army, Appellant
ARMY 20130094
Headquarters, III Corps and Fort Hood
James L. Varley and Gregory G. Gross, Military Judges
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 Ryan T. Yoder, JA (on brief).
For Appellee: Major A.G Courie III, JA; Major Steven J. Collins, JA (on brief).
21 May 2015
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SUMMARY DISPOSITION
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TOZZI, Senior Judge:
A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of involuntary manslaughter by culpable negligence in
violation of Article 118, Uniform Code of Military Justice, 10 U.S.C. § 918 (2012).
The military judge sentenced appellant to a bad-conduct discharge, confinement for
forty-two months, total forfeitures, and reduction to the grade of E-1. The
convening authority approved a bad-conduct discharge, forty-one months
confinement, total forfeitures, and reduction to the grade of E-1. The convening
authority credited appellant with 130 days of confinement credit against the sentence
to confinement.
This case is before us for review pursuant to Article 66, UCMJ. Appellant’s
sole assignment of error requests relief for the dilatory post-trial processing of his
case. This assignment of error warrants discussion and relief. The matters
MYERS—ARMY 20130094
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), are without merit.
LAW AND DISCUSSION
The convening authority took action 466 days after the sentence was
adjudged, over 430 of which are attributable to the government . The record in this
case consists of one volume, and the trial transcript is 1 44 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 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 203 days to transcribe the record in this case. The government
provided an explanation stating that a large volume of courts -martial at Fort Hood,
combined with a shortage of assigned court reporters , resulted in the outsourcing of
records of trial to private transcription firms and othe r military jurisdictions,
resulting in increased processing times. The convening authority provided one
month of confinement credit as clemency to appellant because of the lengthy delay
between the time of trial and action. See United States v. Bauerbach, 55 M.J. 501,
507 (Army Ct. Crim. App. 2001) (“The convening authority would normally moot
the need for additional relief by this court by granting relief for untimely post -trial
processing in his action.”) (emphasis added) (citations omitted). We agree with the
action of the convening authority granting one month of confinement credit as
clemency. Under the facts and circumstances of this case , we deem it appropriate to
grant an additional thirty days of confinement credit relief and do so in our decretal
paragraph.
CONCLUSION
Upon consideration of the entire record, including the matters submitted
pursuant to Grostefon, the findings as approved by the convening authority are
AFFIRMED. Given the dilatory post-trial processing, we affirm only so much of the
sentence as extends to a bad-conduct discharge, forty months confinement, total
forfeitures, and reduction to the grade of E -1. All rights, privileges, and property, of
which appellant has been deprived by virtue of this decision setting aside portions of
the sentence are ordered restored.
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MYERS—ARMY 20130094
Judge CAMPANELLA and Judge CELTNIEKS concur.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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