United States v. Sergeant First Class DERRICK L. ROBERTS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KRIMBILL, BROOKHART, and LEVIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant First Class DERRICK L. ROBERTS
United States Army, Appellant
ARMY 20130609
Headquarters, United States Army Alaska
Stefan R. Wolfe, Military Judge
Colonel Tyler J. Harder, Staff Judge Advocate
For Appellant: Colonel Elizabeth G. Marotta, JA; Major Jack D. Einhorn, JA; Major
Benjamin A. Accinelli, JA (on brief); Colonel Elizabeth G. Marotta, JA; Major
Steven J. Dray, JA; Major Benjamin A. Accinelli, JA (on reply brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Craig Schapira, JA; Captain Brian Jones, JA (on brief).
27 May 2020
----------------------------------
SUMMARY DISPOSITION
----------------------------------
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
LEVIN, Judge:
A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of assault consummated by a battery upon
a child and one specification of child endangerment, in violation of Articles 128 and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934 [UCMJ] . The
military judge sentenced appellant to be confined for three months, to forfeit
$2,600.00 per month for six months, to be reprimanded, and to be reduced to the
grade of E-6. The convening authority approved five months of the adjudged
forfeitures and the remainder of the sentence as adjudged.
The military judge presided over appellant’s court-martial on 3 July 2013.
The convening authority took action on 15 December 2014. The Judge Advocate
General referred appellant’s case to this court pursuant to his authority under Article
ROBERTS—ARMY 20130609
69(d)(1), UCMJ, on 10 February 2019, and it was docketed on 14 February 2019. 1
Appellant raises two assignments of error which warrant discussion and relief:
sufficiency of the evidence and post-trial delay. 2
LAW AND DISCUSSION
Sufficiency of the Evidence
This court reviews legal sufficiency issues de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for legal sufficiency is
“whether ‘a reasonable factfinder reading the evidence one way could have found all
the elements of the offense beyond a reasonable doubt.’” United States v. Rosario,
76 M.J. 114, 117 (C.A.A.F. 2017) (citation omitted).
Appellant stands convicted of child endangerment by “endanger[ing] the
physical health of [TR], by failing to feed him” on divers occasions. The record
establishes, and the government concedes, that there is insufficient evidence to
support the specification as charged. TR testified that appellant permitted him to eat
ramen noodles, red beans and rice, as well as junk food. There was no evidence to
contradict this testimony.
This court is not permitted to alter the findings by broadening a theory of
criminality not presented at trial. See United States v. English, 79 M.J. 116(C.A.A.F. 2019); United States v. Johnson, ARMY 20131075, 2016 CCA LEXIS 215(Army Ct. Crim. App. 31 Mar. 2016) (mem. op.). Feed, as used in the specification,
is a transitive verb meaning “to give food to.” See Merriam-Webster Unabridged
Online Dictionary, https://www.merriam-webster.com/dictionary/feed (last visited
17 May 2020). The government failed to prove that appellant “failed to give food
to” TR.
As the government notes, it could have charged appellant with “failing to
adequately feed” TR. See United States v. Theurer, 2015 CCA LEXIS 223, at *5
(A.F. Ct. Crim. App. 28 May 2015) (affirming appellant’s conviction for child
endangerment for “failing to adequately feed and obtain medical care”). It did not.
Reading an adverb such as “adequately” into the charge sheet is beyond this court’s
authority.
1
Appellant’s sentence was sub-jurisdictional; therefore, this court did not receive
his case for automatic review under Article 66, UCMJ.
2
This Court need not address appellant’s remaining two claims, both of which are
mooted by the relief granted to appellant in the decretal paragraph.
2
ROBERTS—ARMY 20130609
Therefore, the evidence for Specification 2 of Charge III, charging appellant
with child endangerment, is legally insufficient and we set aside that finding of
guilty and dismiss the specification in our decretal paragraph. This leaves appellant
convicted of a single charge of assault consummated by a battery upon a child.
Post-Trial Delay
Appellant argues that he was prejudiced by the delay between the convening
authority’s action and the docketing of this appeal. 3 We agree. 4
Given the facially unreasonable length of delay, addressed below, we review
this post-trial due process violation claim de novo, balancing the four factors set out
in Barker v. Wingo, 407 U.S. 514, 530-32 (1972): (1) the length of the delay; (2) the
reasons for the delay; (3) the appellant’s assertion of the right to timely review and
appeal; and (4) prejudice. United States v. Moreno, 63 M.J. 129, 136-41 (C.A.A.F.
2006).
The first factor weighs in favor of appellant, in that the length of delay from
the time the convening authority completed action to the docketing of this appeal is
facially unreasonable. Moreno established time standards for post-trial processing
and review, the violation of which gives rise to a presumption of unreasonable delay,
including a standard of thirty days from convening authority action to docketing at
this court. Id. at 142. Our Superior Court made no exception for cases that are
referred to this court pursuant to Article 69, UCMJ. Here, approximately 1,522 days
elapsed between the convening authority’s completion of the action and the
docketing of the appeal, considerably longer than the Moreno standard.
The second factor also weighs in favor of appellant. Under the second factor,
we look at the government’s responsibility for any delay, as well as any legitimate
reasons for the delay, including those attributable to an appellant. In its brief, the
government fails to offer any explanation whatsoever for the delay between
December 2014 (action) and February 2019 (docketing with this court), instead
focusing in a footnote on the four days between the date this case “was referred to
this court . . . and docketed.” A fifty-month delay, left unexplained, weighs in favor
of appellant.
3
Appellant also asserts that he was prejudiced by the 530-day delay between
sentencing and the convening authority’s action, a delay that prompted the
convening authority to reduce forfeitures from six months to five months. We focus
our analysis, however, on the greater delay of over four years that followed.
4
Specification 6 of Charge II alleged that appellant unlawfully struck his teenage
son, TR, on the head with an alarm clock. It is an unfortunate irony that we must
once again sound the alarm on an issue involving a failure to keep track of time.
3
ROBERTS—ARMY 20130609
With regard to the third factor, this court is required to examine whether
appellant objected to the delay in any way or otherwise asserted his right to a timely
review. While the record remains undeveloped, it appears that appellant did not
raise the issue of appellate delay until his case was before this court.
However, as the Moreno court articulated, an appellant should not be required
to complain in order to receive timely processing of his appeal, which is the primary
responsibility of the government. See Moreno, 63 M.J. at 138. While this factor
weighs against appellant, it does so only slightly. See United States v. Arriaga, 70
M.J. 51, 57 (C.A.A.F. 2011).
Finally, the fourth factor weighs in favor of appellant. For almost seven
years, appellant has stood convicted of one of two crimes for which there was
insufficient evidence, a conviction which may very well have contributed to
significant financial penalties at sentencing. For almost seven years, appellant has
suffered the stigma of that conviction and the collateral consequences that
reasonably followed both the conviction and the ensuing sentence. Even absent
prejudice, a “constitutional due process violation still occurs if . . . ‘the delay is so
egregious that tolerating it would adversely affect the public’s perception of the
fairness and integrity of the military justice system.’” Arriaga, 70 M.J. at 56 (citing
United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006)). In this case, though,
there is actual prejudice in the form of an unsupported long-standing conviction and
financial consequences of his punishment.
Weighing all of the above, we find a due process violation in the appellate
review of the appellant’s court-martial. Once a denial of a speedy appeal has been
found after the balancing of the four Barker factors, reviewing authorities “should
‘tailor an appropriate remedy, if any is warranted, to the circumstances of the case.’”
Moreno, 63 M.J. at 143 (quoting United States v. Jones, 61 M.J. 80, 86 (C.A.A.F.
2005)).
In Moreno, our superior court provided a nonexclusive list of relief available
for post-trial delays which includes, in pertinent part, (1) setting aside all or portions
of an approved sentence, and (2) dismissal of the charges and specifications with or
without prejudice. Moreno, 63 M.J. at 143. Fashioning such a remedy for excessive
post-trial delay is within our broad discretion under Article 66, UCMJ. United
States v. Pflueger, 65 M.J. 127, 128 (C.A.A.F. 2007).
The due process violation resulting from the post-trial delay in this case
warrants meaningful relief as long as relief is available that is not also
disproportionate to the harm caused. See United States v. Rodriquez-Rivera, 63 M.J.
372, 386 (C.A.A.F. 2006). We have considered the totality of the circumstances and
the types of relief that may be appropriate here. Because appellant has served his
full term of confinement, reduction of the confinement would afford him no
4