United States v. Rush

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39260
________________________
UNITED STATES
Appellee
v.
Rebekah D. RUSH
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 15 January 2019
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Military Judge: L. Martin Powell.
Approved sentence: Bad-conduct discharge, confinement for 20 months,
and reduction to E-1. Sentence adjudged 24 January 2017 by GCM con-
vened at Keesler Air Force Base, Mississippi.
For Appellant: Major Todd M. Swensen, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Clay-
ton H. O’Connor, USAF; Major Meredith L. Steer, USAF; Captain Sean
J. Sullivan, USAF; Mary Ellen Payne, Esquire.
Before HUYGEN, MINK, and KIEFER, Appellate Military Judges.
Judge KIEFER delivered the opinion of the court, in which Senior Judge
HUYGEN and Judge MINK joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
KIEFER, Judge:
Appellant, pursuant to her pleas and a pretrial agreement (PTA), was con-
victed by a military judge of one specification of willful dereliction of duty and
four specifications of forgery in violation of Articles 92 and 123, Uniform Code
United States v. Rush, No. ACM 39260
of Military Justice (UCMJ), 10 U.S.C. §§ 892, 923.1 The military judge sen-
tenced Appellant to a reduction to the grade of E-1, 20 months of confinement,
and a bad-conduct discharge. The convening authority approved the sentence
as adjudged.
On appeal, Appellant asserts three assignments of error: (1) whether Ap-
pellant is entitled to sentence relief due to the conditions of her post-trial con-
finement; (2) whether Appellant is entitled to relief because the Staff Judge
Advocate’s Recommendation (SJAR) failed to address alleged legal errors; and
(3) whether the approved sentence is unduly harsh as compared to sentences
in similar cases. We specified two additional issues: (1) whether trial defense
counsel incorrectly stated in the clemency submission the effect of a particular
term in the PTA and (2) whether Appellant is entitled to new post-trial pro-
cessing in light of United States v. Addison, 75 M.J. 405 (C.A.A.F. 2016)
(mem.), either because the addendum to the SJAR did not correct an error in
trial defense counsel’s clemency submission regarding the particular term in
the PTA or because the SJAR misadvised the convening authority concerning
the PTA. We find that there was no meeting of the minds concerning the term
in the PTA and thus set aside the findings and the sentence. Accordingly, we
need not address the remaining assignments of error. Finally, we address the
issue of timely appellate review.
I. BACKGROUND
In early 2015, Appellant was serving as a dental technician at Keesler Air
Force Base, Mississippi. During this time, she provided dental assessment and
treatment to a civilian at his home without the supervision of a licensed dentist
in violation of Air Force and state medical standards. Through her access to
the civilian’s home, Appellant obtained some of his checks, and on various oc-
casions in November 2015, she forged multiple checks totaling $38,000. Appel-
lant delivered some of the forged checks, totaling $18,000, for payment to a
bank in Mississippi with the intent to defraud both the bank and the civilian
owner of the checks.
One term of Appellant’s PTA (hereinafter referred to as the “consider”
term) stated that the convening authority would “[c]onsider disapproving, com-
muting, mitigating, or suspending the entire sentence, or any portion thereof,
as a matter of clemency when taking Action, to the extent the Rules for Courts-
Martial permit.”
1Appellant pleaded not guilty to one specification of fleeing from apprehension, two
specifications of larceny, and one specification of wrongful use with intent to defraud
another’s military identification card, all of which the Government withdrew and dis-
missed in accordance with the PTA.
2
United States v. Rush, No. ACM 39260
During the PTA inquiry, the military judge indicated that he had not seen
the “consider” term before and asked the parties to explain their respective
interpretations of it. Trial counsel interpreted the “consider” term to mean
that, if the adjudged sentence included confinement for more than six months
or a punitive discharge, the convening authority would be limited by Article
60, UCMJ, 10 U.S.C. § 860, and Rule for Courts-Martial (R.C.M.) 1107 to grant-
ing the specific relief included in the quantum portion of the PTA with respect
to confinement and a discharge.2 Trial defense counsel interpreted the term to
mean that the convening authority could grant full relief on all components of
the adjudged sentence, to include disapproval of the entire sentence.
After summarizing the parties’ views of the “consider” term, the military
judge informed Appellant:
Your counsel’s reading of the rule may be that the convening au-
thority has unlimited authority to reduce the punishment to any
level he wants. I’m not sure that that’s an accurate reading of
the rule. It may be, but appellate courts may decide, no, the con-
vening authority doesn’t have that kind of unlimited authority
as your counsel said. So I want to make sure that you under-
stand that, first of all, this subjection [sic] of the PTA says, “to
the extent that Rules for Courts-Martial permit.” So there’s a
very real possibility that the convening authority would be lim-
ited. Say, for example, if the adjudged punishment exceeded six
months of confinement or included a punitive discharge, the con-
vening authority, in accordance with RCM 1107, may not be able
to mitigate, suspend, commute or disapprove that sentence.
(Emphasis added).
After a brief recess, trial counsel indicated uncertainty as to whether there
was a meeting of the minds between the parties on the meaning of the “con-
sider” term of the PTA: “I’m still trying to hash out whether there’s actually a
meeting of the minds as it comes to this term. To say, ‘This is what I expect,
2 The National Defense Authorization Act for Fiscal Year 2014 modified Article 60,
UCMJ, and limited the convening authority’s ability to grant clemency. Pub. L. No.
113–66, § 1702(b), 127 Stat. 956–57 (2013). The pertinent text of the modified Article
60, UCMJ, providing for convening authority discretion to act on an adjudged sentence
reads, “[T]he convening authority . . . may not disapprove, commute, or suspend in
whole or in part an adjudged sentence of confinement for more than six months or a
sentence of dismissal, dishonorable discharge, or bad conduct discharge.” Id. This limit
on authority is subject to two exceptions, one of which is where the convening authority
and accused have entered into a PTA. Id. Thus, pursuant to specific terms in a PTA,
the convening authority may act on an adjudged sentence of confinement for more than
six months, dismissal, dishonorable discharge, or bad conduct discharge. Id.3
United States v. Rush, No. ACM 39260
but maybe I’m wrong,’ I don’t know at this point that the accused understands
the benefit of the bargain.”
Trial counsel went on to restate his interpretation of the “consider” term,
and the military judge summarized as follows:
The government’s position and my interpretation is that the lan-
guage that says that, if there’s a pretrial agreement, [the con-
vening authority] can take action in accordance in accordance
[sic] with that, means that he could reduce the sentence to what-
ever it says specifically in your Appendix A. If it says the maxi-
mum is three days of confinement, he can reduce it all the way
down to that, but that he might not be able to take any other
action limited by Article 60 of the UCMJ and Rule for Courts-
Martial 1107.
(Emphasis added).
While still discussing the “consider” term, the military judge had the fol-
lowing exchange with Appellant:
MJ [Military Judge]: . . . [T]he fact of the matter is that a fair
interpretation of this could mean that if the sentence exceeds six
months of confinement or if you get a punitive discharge, the
convening authority may not be permitted, under the Rules for
Courts-Martial and the UCMJ, to take any of the actions that
are set forth in paragraph 2(e).
Do you understand that?
ACC [Appellant]: Yes, sir.
MJ: Okay. And is that your understanding? Is your understand-
ing of this agreement that the convening authority will consider
doing anything that he is allowed to do under the law?
ACC: Yes, sir. I understand that.
(Emphasis added).
The military judge ended the discussion with the following:
So it seems to me that there’s an agreement. Maybe there’s a
different interpretation of what the extent is that [the convening
authority] can act upon [the sentence] in accordance with RCM
1107 and Article 60. Maybe there’s a different interpretation,
but ultimately the agreement seems to be that whatever he can
do he will do as far as considering mitigating, suspending, sus-
pending [sic], commuting or disapproving the sentence.
4
United States v. Rush, No. ACM 39260
At the conclusion of the plea inquiry, the military judge accepted Appel-
lant’s guilty pleas and found her guilty of one specification of willful dereliction
of duty and four specifications of forgery.
II. DISCUSSION
A. The “Consider” Term and Meeting of the Minds
Courts have long acknowledged that entering a plea of guilty is a serious
and consequential decision. The Supreme Court of the United States has noted
that “[a] plea of guilty is more than a confession which admits that the accused
did various acts; it is itself a conviction; nothing remains but to give judgment
and determine punishment.” Boykin v. Alabama, 395 U.S. 238, 242 (1969) (ci-
tation omitted). “Because of the consequences resulting from guilty pleas, the
Supreme Court has recognized the constitutional necessity of ensuring that
such pleas are entered into voluntarily and knowingly, ‘with sufficient aware-
ness of the relevant circumstances and likely consequences.’” United States v.
Perron, 58 M.J. 78, 81 (C.A.A.F. 2003) (quoting Brady v. United States, 397
U.S. 742, 748 (1970)). “These concerns are no less important in our military
system of justice, where pleading guilty constitutes a conviction and a waiver
of the accused’s trial rights.” Id. (citing United States v. Forester, 48 M.J. 1, 2–
3 (C.A.A.F. 1998)); United States v. Care, 40 C.M.R. 247, 250–51 (C.M.A.
1969)). “The military justice system imposes even stricter standards on mili-
tary judges with regards to guilty pleas than those imposed on federal civilian
judges.” Perron, 58 M.J. at 81–82 (citing United States v. Outhier, 45 M.J. 326,
331 (C.A.A.F. 1996)) (noting Article 45(a), UCMJ, requires military judges to
reject guilty pleas if they cannot resolve inconsistencies and apparent defenses
during the providence inquiry).
The interpretation of a PTA is a question of law, which we review de novo.
United States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009); United States v.
Acevedo, 50 M.J. 169, 172 (C.A.A.F. 1999). A PTA in the military justice system
establishes a constitutional contract between the accused and the convening
authority. See United States v. Lundy, 63 M.J. 299, 301 (C.A.A.F. 2006). Basic
contract principles require a meeting of the minds between the parties as to
the material terms of the agreement. Thus, the military judge’s inquiry into
the voluntariness of an accused’s guilty plea includes an examination of the
provisions of any PTA to ensure that there is a meeting of the minds between
the parties to the agreement. See R.C.M. 705(c)(1)(A), 910(f). “We have long
emphasized the critical role that a military judge and counsel must play to
ensure that the record reflects a clear, shared understanding of the terms of
any pretrial agreement between an accused and the convening authority.”
United States v. Williams, 60 M.J. 360, 362 (C.A.A.F. 2004) (citation omitted);
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United States v. Rush, No. ACM 39260
see also United States v. Smith, 56 M.J. 271, 272–73 (C.A.A.F. 2002); Care, 40
C.M.R. at 250–51.
In this case, the military judge elicited the parties’ respective understand-
ings of the “consider” term. The Government indicated that the convening au-
thority would be limited by Article 60, UCMJ, and R.C.M. 1107, and that, if
the adjudged sentence included confinement for more than six months or a pu-
nitive discharge, the convening authority could not disapprove, suspend, or
mitigate confinement or a punitive discharge beyond the specific terms in the
quantum portion of the PTA. The Defense stated that the “consider” term
would allow the convening authority to act on all aspects of the adjudged sen-
tence, including disapproval of the entire sentence.
The military judge seemed to share the Government’s position; however,
he did not rule on the “consider” term or clearly state its meaning in this case.
Instead, he used ambiguous and qualifying language, which ranged from sup-
port for the Government’s interpretation to statements that Appellant’s view
might be correct and the convening authority might be able to grant the full
relief Appellant hoped for, up to and including disapproval of the entire sen-
tence.
Trial counsel noted the confusion surrounding the “consider” term and the
fact that there did not appear to be a meeting of the minds between the parties.
The military judge added to this uncertainty by stating multiple times, “maybe
there is a different interpretation” of the “consider” term. The military judge
ultimately ended the discussion with a finding that the convening authority
would do whatever the law allowed without resolving what that meant in Ap-
pellant’s case.
In United States v. Robinson, 78 M.J. 578 (A.F. Ct. Crim. App. 2018), de-
cided by this court in August of this year, we found that a PTA term nearly
identical to the one at issue in Appellant’s case was a legal nullity because it
essentially required the convening authority to follow the law as he was al-
ready required to do. Here, the military judge’s attempt to establish a meeting
of the minds that the convening authority would do whatever the law allowed
did not resolve the parties’ conflicting interpretations of the “consider” term.
Thus, we find that there was no meeting of the minds with regard to the mean-
ing of the “consider” term of the PTA.
B. The “Consider” Term and Materiality
Because there was no meeting of the minds, we must next determine
whether the “consider” term was material. “In an appeal that involves a mis-
understanding or nonperformance by the Government, the critical issue is
whether the misunderstanding or nonperformance relates to ‘the material
terms of the agreement.’” Smith, 56 M.J. at 273 (quoting R.C.M. 910(h)(3)). A
6
United States v. Rush, No. ACM 39260
PTA term is material when it “rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the inducement
or consideration . . . .” Santobello v. New York, 404 U.S. 257, 262 (1971). “There
is no requirement . . . that the term at issue constitute the ‘only’ reason for a
pretrial agreement.” Smith, 56 M.J. at 279.
In evaluating the circumstances of this case and whether the “consider”
term was to any significant degree part of the inducement for Appellant to en-
ter into the PTA, we first note that Appellant relied on an interpretation of the
term that would have conveyed a significant benefit to her, namely, the con-
vening authority’s ability to disapprove any or all of the adjudged sentence.
The magnitude of this possible relief demonstrates its importance to Appellant.
Further, Appellant maintained the same understanding of the “consider”
term from trial, through clemency, and on appeal. During the plea inquiry with
the military judge, she asserted that the convening authority could disapprove
her entire sentence. This interpretation was confirmed in the written post-trial
rights advisement, an appellate exhibit accepted by the trial court, which
stated, “[t]he Convening Authority may approve the sentence adjudged, ap-
prove a lesser sentence, or disapprove the sentence entirely.” (Emphasis added).
In clemency, Appellant, through her counsel, told the convening authority he
had the discretion to disapprove her confinement, and she requested that spe-
cific relief. In her affidavit to this court on appeal, Appellant stated that, when
she signed the PTA and at trial, she believed the convening authority would
have full discretion to act on her sentence. While there are instances where we
may give less weight to a self-serving affidavit on appeal, especially if it con-
tradicts information provided at trial or in clemency, Appellant’s interpreta-
tion of the “consider” term has been consistent throughout the case.
It also appears the “consider” term was the product of some forethought by
the parties. The military judge noted that in his experience this was a new PTA
term, suggesting it was not simply “boilerplate” language carried over from
another agreement but was instead specifically included in this agreement.3
Finally, military case law has noted that materiality may be demonstrated
by the post-trial relief requested and the basis for that relief. In Smith, the
court held that a term in the PTA impacting forfeitures was material, in part,
because the accused cited concern for his family and the need to provide for
them financially, and then requested relief from forfeitures, which was specif-
ically addressed in his PTA. 56 M.J. at 279. The circumstances in this case are
similar. In clemency, Appellant indicated concern for her family and noted is-
sues with her disabled husband’s ability to care for their children if she was
3 While we cannot say the “consider” term is unique to Appellant’s case, Robinson is
the only other instance of the court considering this term. See 78 M.J. at 581.
7
United States v. Rush, No. ACM 39260
confined for a long period of time, and she focused her post-trial efforts on re-
ducing the adjudged confinement based on the “consider” term in the PTA. As
in Smith, Appellant’s focus on clemency relief consistent with her interpreta-
tion of the “consider” term further demonstrates the importance of this term in
her decision to proceed with the PTA as well as her understanding that this
term gave the convening authority very broad discretion to act on her sen-
tence.4
Having found there was no meeting of the minds between the parties on
the meaning of the “consider” term or its impact on the convening authority’s
discretion in clemency, we further find that the term was material. It rested
on a promise of the convening authority to take certain action with respect to
the sentence, and it was part of the inducement for Appellant to enter into the
PTA.
C. The “Consider” Term and Remedy
It is incumbent on the military judge to ensure the accused understands
the PTA, the parties agree to its terms, the agreement satisfies the require-
ments of R.C.M. 705, and the accused has freely and voluntarily entered into
the PTA and waived her constitutional rights. Perron, 58 M.J. at 82; see also
Article 45(a), UCMJ, 10 U.S.C. § 845(a); R.C.M. 705, 910(f), 910(h)(2)–(3). If
there is no agreement as to a material term in the PTA, “remedial action, in
the form of specific performance, withdrawal of the plea, or alternative relief,
is required.” Perron, 58 M.J. at 82 (citations omitted).
1. Specific Performance
In evaluating remedial actions,
[i]f the military judge determines that the accused does not un-
derstand the material terms of the agreement, or that the par-
ties disagree as to such terms, the military judge shall conform,
with the consent of the Government, the agreement to the ac-
cused’s understanding or permit the accused to withdraw the
plea.
R.C.M. 910(h)(3); see also United States v. Olson, 25 M.J. 293, 296 (C.M.A.
1987). Here, the military judge did not conform the agreement to Appellant’s
understanding. He failed to specifically rule on the meaning of the “consider”
term, and he appeared to favor the Government’s interpretation. Similarly, in
4 Appellant’s case is also similar to Smith, 56 M.J. at 276, in that the Government
failed to recognize that Appellant’s expiration of term of service nullified the PTA term
waiving forfeiture of pay for the benefit of Appellant’s dependents.
8
United States v. Rush, No. ACM 39260
clemency, the staff judge advocate advised the convening authority that he
could not take action consistent with Appellant’s interpretation of the PTA.
We have also considered whether we can at this point order specific perfor-
mance in the form of new post-trial processing and require the convening au-
thority to fulfill the “consider” term as interpreted by Appellant. In Robinson,
we found the “consider” term was a legal nullity and could not be interpreted
in a manner that expands the convening authority’s discretion beyond the lim-
itations set forth in Article 60, UCMJ. 78 M.J. 578, 581 (A.F. Ct. Crim. App.
2018). We noted, “the convening authority’s agreement to ‘consider disapprov-
ing, commuting, mitigating, or suspending the entire sentence or any portion
thereof, as a matter of clemency when taking Action’ was in essence an empty
promise.” Id. at 583. Thus, we cannot order the convening authority to do some-
thing that this court has determined he is not authorized to do. In other words,
we cannot order specific performance.
2. Withdrawal from the PTA
As with other decisions regarding guilty pleas and PTAs, the decision to
withdraw or proceed must be knowing and voluntary. In Robinson, the court
found that “[t]he military judge neither inquired further into Appellant’s or
either counsel’s understanding of [the ‘consider’ term] nor clarified the ways in
which the convening authority would be limited by the restrictions set forth in
Article 60, UCMJ, 10 U.S.C. § 860.” Id. at 580. Consequently, the court found
the pleas improvident and set aside the findings and sentence. Id. at 579.
Unlike in Robinson, the military judge in Appellant’s case conducted a
lengthy discussion of the “consider” term. The fact that there was additional
discussion, however, does not guarantee a knowing and voluntary decision to
proceed with the PTA. We acknowledge that the military judge discussed with-
drawal from the PTA with Appellant, but the problem here was that the total-
ity of the inquiry left significant confusion as to the meaning of the “consider”
term. While the military judge indicated his preferred interpretation, he did
not definitively rule on the provision and repeatedly used ambiguous and qual-
ifying language to describe both Appellant’s and the Government’s interpreta-
tions.
In the Government’s brief, it cites three cases for the proposition that a plea
is not improvident simply because of uncertainty on an issue of law—United
States v. Poole, 26 M.J. 272, 274 (C.M.A. 1988); United States v. Hunt, 10 M.J.
222, 223 (C.M.A. 1981); and United States v. Hedlund, 7 M.J. 271, 273 (C.M.A.
1979). All of these cases, however, are distinguishable from Appellant’s case.
First, the military judges in those cases made definitive rulings on issues of
law. No such ruling was provided in this case, and Appellant was left to eval-
uate the merits of her position in a confusing and unclear environment. Second,
Poole, Hunt, and Hedlund did not involve conflicting positions of the parties on
9
United States v. Rush, No. ACM 39260
a PTA term, where the requirement for clarity is paramount.5 In fact, the true
import of Poole, Hunt, and Hedlund to Appellant’s case is their recognition that
“all the circumstances of the case presented by the record must be considered
to determine whether the misapprehension of [an issue] affected the guilty
plea, or whether that factor was insubstantial in [appellant’s] decision to
plead.” Hunt, 10 M.J. at 223–224 (citation omitted); see Poole, 26 M.J. at 272
(citations omitted); Hedlund, 7 M.J. at 273.
Here, the military judge did not make a definitive ruling as to the meaning
of the “consider” term and repeatedly used qualifying language to describe the
provision, ultimately leading trial counsel to question whether there was a
meeting of the minds between the parties. In response, the military judge in-
dicated the Government’s interpretation was probably correct but still sug-
gested Appellant’s position had merit and might provide the relief Appellant
expected. Although the discussion in this case was more extensive than that
undertaken in Robinson, the sum total of the inquiry left open the meaning of
a material term in the PTA and injected ambiguities that undermined the vol-
untariness of Appellant’s decision to continue with the guilty plea and PTA.
There is a difference between an accused who is faced with a specific unfa-
vorable ruling from a military judge and harbors some hope that she may pre-
vail on appeal and an accused who agrees to proceed with a PTA where she has
been informed by the military judge that her interpretation may be correct.
This is not to say an accused can simply create interpretations of PTA terms
from thin air, advance those same unsupported understandings through post-
trial processing, and later successfully claim an improvident plea. An accused
who elects to go forward with a PTA after receiving a clear ruling that is in-
consistent with her interpretation of a material term proceeds at her own peril.
On this record, however, Appellant did not receive a clear ruling, and the in-
quiry on the “consider” term, as a whole, created an environment where Appel-
lant could have reasonably determined she would receive the benefit of her
bargain.
We find that the totality of the circumstances in this case resulted in nu-
merous uncertainties that undermined the knowing and voluntary nature of
Appellant’s decision to proceed with the PTA, despite the fact that she acknowl-
edged a possible outcome consistent with the Government’s interpretation of
the “consider” term. The military judge’s failure to definitively rule on the
meaning of the term combined with the ambiguities of the discussion left open
5Poole, Hunt, and Hedlund all deal with situations where the military judge and the
parties misunderstood the maximum sentence based on the offenses and pleas. Poole,
26 M.J. at 273–74; Hunt, 10 M.J. at 223; Hedlund, 7 M.J. at 273.
10
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the possibility that the convening authority had the discretion to grant Appel-
lant full clemency, when the convening authority did not. Thus, although the
military judge offered Appellant the chance to withdraw from the PTA, Appel-
lant’s decision to proceed was not knowing and voluntary.
3. Alternative Relief
If the bargained-for benefit of a PTA term is outside the authority of the
Government to provide, appellate courts may consider whether some “appro-
priate alternative relief” may satisfy the benefit of the bargain.6 See United
States v. Mitchell, 50 M.J. 79, 83 (C.A.A.F. 1999) (per curiam).
We note that generally we cannot order alternative relief in the absence of
the agreement of both parties. “[I]mposing alternative relief on an unwilling
appellant to rectify a mutual misunderstanding of a material term in a pretrial
agreement violates the appellant’s Fifth Amendment right to due process.” Per-
ron, 58 M.J. at 86. “When an appellate court substitutes its own remedies in
place of negotiated plea terms, it steps into the accused’s shoes and is in effect
renegotiating the accused’s plea agreement and waiving his rights. This, an
appellate court cannot do without the accused’s consent.” Id. at 85.
Here, the Government has not offered any alternative relief that it believes
is appropriate. The only relief Appellant has requested is the setting aside of
the findings and sentence. “If the court concludes . . . that other relief . . . is
insufficient, the court may set aside the findings, as well as the sentence, and
authorize a rehearing based on appellant’s improvident pleas.” Mitchell, 50
M.J. at 83. We do so here.
D. Timely Appellate Review
Under United States v. Moreno, courts apply a presumption of unreasona-
ble delay when the time from docketing to issuance of the decision exceeds 18
months. 63 M.J. 129, 142 (C.A.A.F. 2006). This presumption triggers analysis
applying the four factors set out in Barker v. Wingo, 407 U.S. 514, 530 (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 (4) prejudice to the appellant.
Moreno, 63 M.J. at 135 (citations omitted).
Analyzing these factors, we note this case was docketed with the court on
2 June 2017, and the opinion was not issued within 18 months. Despite this
facially unreasonable delay, we find no due process violation. The length of
6Pursuant to the “consider” term, Appellant believed she bargained for the convening
authority to consider relief from her adjudged sentence up to and including disapproval
of her entire sentence. As noted in section II.C.1, we adopt the holding in Robinson,
and find that the “consider” term was a legal nullity, and Appellant’s expected benefit
was not available in this case.
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United States v. Rush, No. ACM 39260
delay is approximately one month and is not excessive. Appellant did not de-
mand speedy appellate review and instead requested five enlargements of time
to submit her assignments of error. Further delay was precipitated by unique
circumstances that required the court to specify issues and necessitated addi-
tional briefing by both parties. Finally, with respect to prejudice, Appellant has
not asserted any of the factors noted in Moreno, including oppressive incarcer-
ation, anxiety and concern, or impact on her ability to present a defense.7 63
M.J. at 138-39. We also do not find any prejudice to Appellant based on the
one-month delay beyond the presumptively reasonable 18-month period.
Even when appellate delay does not rise to the level of a due process viola-
tion, this court may exercise its broad authority under Article 66(c), UCMJ, to
grant sentence relief in the absence of a showing of material prejudice. United
States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002). In United States v. Toohey,
63 M.J. 353, 362 (C.A.A.F. 2006), our superior court held that a service court
may grant relief even when the delay was not “most extraordinary.” “The es-
sential inquiry remains appropriateness in light of all circumstances.” Id.This court set out a non-exhaustive list of factors we consider when evalu-
ating the appropriateness of Tardif relief in United States v. Gay, 74 M.J. 736,
744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016). Those factors
include how long the delay exceeded appellate review standards, the reasons
noted by the Government for the delay, whether the Government acted with
bad faith or gross indifference, evidence of institutional neglect, harm to the
appellant or the institution, the goals of justice and good order and discipline,
and, finally, whether the court can provide any meaningful relief given the
passage of time. Id. No single factor is dispositive, and we may consider other
factors as appropriate. Id.Here, the delay consists of approximately one month beyond the presump-
tively reasonable 18 months for appellate review, and the reason for the delay
is not based on bad faith or gross indifference by the Government. Instead, the
delay, particularly after the filing of the assignments of error, was a function
of this court’s effort to ensure all relevant matters were thoroughly addressed.
Considering the totality of the circumstances, we find that the appellate
delay in this case was not egregious or excessive. We are mindful of the need
for timely post-trial processing; however, we must balance this with the need
to fully evaluate all issues before the court, including those that may arise dur-
ing appellate review. See Moreno, 62 M.J. at 137–38 (providing a more flexible
7 We note that one of Appellant’s assignments of error dealt with conditions of post-
trial confinement, but, as indicated in Appellant’s filings, these circumstances were
resolved within a few weeks of the start of her confinement and more than a year prior
to the end of the presumptively reasonable period for appellate review.
12
United States v. Rush, No. ACM 39260
review of the time period of a court of criminal appeal’s decision because it
involves the exercise of judicial decision-making authority).
III. CONCLUSION
The findings and the sentence are SET ASIDE. A rehearing is authorized.
Article 66, UCMJ, 10 U.S.C. § 866.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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