United States v. Brunson

IN THE CASE OF
UNITED STATES, Appellee
v.
Leahatonia BRUNSON, Seaman Apprentice (E-2)
U.S. Navy, Appellant
No. 03-0297
Crim. App. No. 200001419
United States Court of Appeals for the Armed Forces
Decided August 14, 2003
Counsel
For Appellant: Lieutenant Commander William O. Coe, JAGC, USNR;
Captain Phillip D. Sanchez, USMC.
For Appellee: No appearance entered.
Military Judge: David M. White
This opinion is subject to editorial correction before final publication.
United States v. Brunson, No. 03-0297/NA
PER CURIAM.
Appellant, Seaman Apprentice (E-2) Leahatonia Brunson, was
tried by special court-martial at Naval Station Bremerton,
Bremerton, Washington. Pursuant to her plea of guilty, she was
convicted of arson in violation of Article 126, Uniform Code of
Military Justice [hereinafter UCMJ], 10 U.S.C. § 926 (2000).
The military judge sentenced her to a bad-conduct discharge,
confinement for six months, and reduction to the lowest enlisted
grade. In accordance with a pretrial agreement, the convening
authority approved the sentence, but suspended all confinement
in excess of 67 days for a period of six months. The Navy-
Marine Corps Court of Criminal Appeals affirmed the findings and
sentence.
Facts
The Court of Criminal Appeals rendered its decision in
Appellant’s case on October 31, 2002. On January 9, 2003, the
Government mailed a copy of the court’s decision to Appellant.
Acting on behalf of Appellant, appellate defense counsel filed a
Petition for Grant of Review with this Court on March 18, 2003.1
On that same day this Court ordered Appellant to file a
1
The Government has not contested the timeliness of this
Petition for Grant of Review. See Article 67(b), Uniform Code
of Military Justice, 10 U.S.C. § 867(b) (2000); C.A.A.F. R.
19(a).
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supplement to her Petition for Grant of Review on or before
April 17, 2003. On the due date, appellate defense counsel
filed a Motion for Enlargement of Time to File Supplement to the
Petition for Grant of Review, stating that appellate defense
counsel was “a reservist who, due to other caseload commitments,
requires additional time[.]” On April 22, 2003, this Court
granted Appellant’s motion and extended the filing date for the
supplement to May 19, 2003. On May 19, 2003, appellate defense
counsel filed a second motion for enlargement of time setting
forth the identical reason in support of the motion. On May 20,
2003, this Court granted the second motion for enlargement
stating, “but only up to and including June 5, 2003; and [t]hat,
absent extraordinary circumstances, no further extensions of
time will be granted in this case.”
The time period for filing Appellant’s supplement came and
no supplement or further motion was filed on the due date. In
response to an inquiry from the Office of the Clerk of this
Court, appellate defense counsel filed a Motion to File
Supplement to Petition for Grant of Review Out of Time on June
20, 2003. It is that motion which we now consider.
Discussion
We grant Appellant’s Motion to File Supplement to Petition
for Grant of Review Out of Time. The present case, as well as a
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number of others coming to this Court from the Navy-Marine Corps
Appellate Defense Division, reflect a serious pattern of delay
in the appeal of decisions to this Court after review by the
Navy–Marine Corps Court of Criminal Appeals (NMCCA).
During a recent review of this Court’s Petition Docket, the
Clerk of Court’s Office discovered 26 cases, including
Appellant’s, in which timely petitions for grant of review had
been filed from decisions of the NMCCA, but where the
supplements to the petitions had not been filed within this
Court’s specified timelines. C.A.A.F. R. 19(a)(5)(B).
Following an inquiry from the Clerk of Court’s Office to the
Navy-Marine Corps Appellate Defense Division, that division
filed motions to file supplements to petitions for grant of
review out of time in all 26 cases.
A further review by the Clerk’s office revealed additional
cases from the Navy-Marine Corps Appellate Defense Division
which were “out of time.” As of August 1, 2003, this Court’s
petition docket contained a total of 43 cases in which petitions
were filed from decisions of the NMCCA but in which no timely
supplements had been filed. In 35 of these cases, counsel filed
motions to file supplements “out of time”; in three cases,
counsel filed “out of time requests” for enlargement of time;
and in five cases, counsel had not filed either the supplement
or a motion for enlargement out of time. The motions to file
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out of time were filed anywhere from six to 26 days beyond the
due dates established by this Court’s Rules of Practice and
Procedure.
The cases in which no supplement to the petition for grant
of review had been filed within the prescribed timelines did not
comply with the provisions of C.A.A.F. R. 19(a). The appellants
in these cases risked the very real possibility of being
deprived of their rights under Article 67, UCMJ, 10 U.S.C. § 867
(2000). The motions to file out of time represent an effort on
the part of the attorneys for the appellants in 38 of the cases
to avoid such a result. These motions, however, reflect further
non-compliance with our Rules. Our Rules require that motions
contain “the factual or legal grounds for requesting . . .
relief.” C.A.A.F. R. 30(a). In the motion to file Appellant’s
Supplement out of time, appellate defense counsel asserts that
“extraordinary circumstances . . . have prevented counsel from
complying with this Court’s rules governing the filing of
pleadings.” Those circumstances include the departure of an
administrative office manager who assisted attorneys with case
tracking, the temporary duty absence of the Appellate Defense
Division Director, and a “medical emergency” that required the
Deputy Division Director “to report daily to the National Naval
Medical Center, Bethesda, Maryland.” Further, counsel asserts
in the motion that there has been a “disconnect” between active
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duty and reserve attorneys who review appellate cases, and that
a new database system “reduced visibility” over cases reviewed
by reserve attorneys. These same circumstances were asserted as
the grounds for relief in the other 25 of the original 26
motions to file supplements out of time. In seven other motions
to file supplements out of time, the asserted reason was
“administrative oversight by the Branch Secretary.” In three
other cases, the reason given was simply “administrative
oversight.”
None of these circumstances provides a basis for finding
that the relief was warranted by “extraordinary circumstances”
or other permissible grounds, except the “medical emergency.”
“[A]dministrative oversight” is merely a conclusion that
provides neither a factual nor a legal basis for the relief
sought. All of the proffered bases for relief were within the
administrative control of the attorneys or supervisory officials
charged with the responsibility of providing legal services
under Article 70.
Counsel have a responsibility to aggressively represent
clients before military trial and appellate courts. If counsel
fail to comply with the basic rules of this Court, they risk
compromising their client’s rights and protections. The
attorneys of the Navy-Marine Corps Appellate Defense Division
must adequately protect the appellate rights of their clients,
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comply with the Rules of Practice and Procedure of this Court,
and provide competent and timely appellate representation.
In that regard, we also note that this Court has adopted
the American Bar Association’s Model Rules of Professional
Conduct (2003 ed.) “as the rules of conduct for members of the
Bar of this Court.” C.A.A.F. R. 15(a). Those Model Rules
require that counsel “shall act with reasonable diligence and
promptness in representing a client.” Model Rules of Prof’l
Conduct R. 1.3. The comment to Rule 1.3 provides that “[a]
lawyer’s work load must be controlled so that each matter can be
handled competently.” Id. at cmt. 2.
As noted above, the motions filed by appellate counsel
do not contain an adequate factual basis for excusing the
omissions by appellate counsel. Under the circumstances of the
present cases, however, we conclude that Appellant Brunson and
the remaining 42 appellants should not be penalized for the
failure of attorneys and officials responsible for the provision
of legal services under Article 70, UCMJ, 10 U.S.C. § 870 (2000)
to ensure that appellate filings are made in a timely manner and
to further ensure that motions for filings out of time contain
an adequate justification. “[W]e do not wish to make [an]
appellant . . . suffer for the omissions of the lawyer[s]
assigned to [her] pursuant to Article 70.” United States v.
Ortiz, 24 M.J. 323, 324 (C.M.A. 1987)(discussing import of
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Article 70). We also note that a number of the motions filed
recently by the Navy-Marine Corps Appellate Defense Division do
not comply with the standards set forth in Ortiz. While we have
granted those motions, practitioners should be on notice that
this Court will not countenance further disregard of our rules
and case law.
In so ruling, we emphasize that “disregard [for the Rules
of this Court] besmirches the image of military justice.” Id.
at 324. We do not “condone disregard of [our] Rules by
accepting late filings when the delay seems to be the result of
neglect and carelessness,” and we shall consider appropriate
sanctions in the event of “flagrant or repeated disregard of our
Rules.” Id. at 325.
Decision
Appellant’s Motion to File Supplement to Petition for Grant
of Review Out of Time is granted.
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