United States v. Simon

UNITED STATES, Appellee
v.
Kevin L. SIMON, Private
U.S. Marine Corps, Appellant
No. 05-0563
Crim. App. No. 200500094
United States Court of Appeals for the Armed Forces
Argued October 18, 2006
Decided November 27, 2006
EFFRON, C.J., delivered the opinion of the Court, in which BAKER
and ERDMANN, JJ., joined.
Counsel
For Appellant: Lieutenant Richard H. McWilliams, JAGC, USNR
(argued); Lieutenant Janelle M. Lokey, JAGC, USNR (on brief);
Lieutenant Brian L. Mizer, JAGC, USNR.
For Appellee: Lieutenant Jessica M. Hudson, JAGC, USNR
(argued); Commander Charles N. Purnell, JAGC, USN (on brief).
Military Judge: P. J. Betz Jr.
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Simon, No. 05-0563/MC
Chief Judge EFFRON delivered the opinion of the Court.
A special court-martial composed of a military judge sitting
alone, convicted Appellant, pursuant to his plea, of failure to
obey an order, in violation of Article 90, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 890 (2000). The adjudged
and approved sentence included a bad-conduct discharge,
confinement for forty-five days, and forfeiture of $700.00 pay
per month for two months. The Navy-Marine Corps Court of
Criminal Appeals affirmed in an unpublished opinion. United
States v. Simon, No. NMCCA 200500094 (N-M. Ct. Crim. App. Apr.
28, 2005).
On Appellant’s petition, we granted review of three issues
concerning the post-trial and appellate processing of
Appellant’s case:
I. WHETHER ERROR OCCURRED IN APPELLANT’S CASE
WHEN APPELLANT LACKS THE MENTAL CAPACITY TO
UNDERSTAND AND COOPERATE INTELLIGENTLY IN
APPELLATE PROCEEDINGS PURSUANT TO RULE FOR
COURTS-MARTIAL 1203(c)(5) AND WHEN NO INQUIRY WAS
MADE INTO WHETHER APPELLANT WAS CAPABLE TO ASSIST
IN HIS DEFENSE PURSUANT TO RULE FOR COURTS-
MARTIAL 706.
II. WHETHER APPELLANT WAS DENIED HIS SIXTH
AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL WHEN HIS INITIAL APPELLATE DEFENSE
COUNSEL FAILED TO ESTABLISH CONTACT WITH THE
CLIENT, FAILED TO REASONABLY INVESTIGATE HIS
CASE, AND FAILED TO RAISE POST-TRIAL DELAY AT THE
LOWER COURT.
III. WHETHER THE UNREASONABLE DELAY CAUSED BY
THE GOVERNMENT’S GROSS NEGLIGENCE IN FULFILLING
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THE NON-DISCRETIONARY AND MECHANICAL TASK OF
FORWARDING A RECORD OF TRIAL FOR APPELLATE REVIEW
VIOLATED THE APPELLANT’S RIGHT TO A SPEEDY POST-
TRIAL REVIEW.
For the reasons set forth below, we set aside the decision
of the Court of Criminal Appeals and remand this case for
further consideration.
I. BACKGROUND
A. POST-TRIAL PROCESSING
The record of trial in Appellant’s case -- in which he pled
guilty to a single disobedience charge -- consisted of thirty-
six pages. Table I summarizes key events in the post-trial
processing of his case.
TABLE I
EVENT DATE DAYS TOTAL
FROM DAYS
PRIOR
ACTION
Findings and sentence adjudged Oct. 16, 2002 0 0
Record of trial authenticated by the Dec. 1, 2002 46 46
military judge
Staff Judge Advocate’s (SJA) Feb. 10, 2003 71 117
recommendation served on defense
counsel; defense waived response to SJA
Convening authority’s action July 18, 2003 158 275
Record of trial docketed at the Court of Feb. 9, 2005 572 847
Criminal Appeals
Pursuant to Article 70(c), UCMJ, 10 U.S.C. § 870(c) (2000),
an appellate defense counsel was assigned to represent Appellant
before the Court of Criminal Appeals. The assigned appellate
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defense counsel submitted the case to the Court of Criminal
Appeals without identifying any errors for consideration by the
court. As noted above, the Court of Criminal Appeals affirmed
the findings and sentence.
B. MATTERS SUBMITTED BY APPELLANT’S NEW DEFENSE COUNSEL
A new appellate defense counsel was assigned to represent
Appellant before this Court. According to the brief submitted
by the new appellate defense counsel:
(1) Appellant, who suffers from a mental disease, is
unable to participate in the present appeal.
(2) As a result of the mental disease, Appellant was
unable to participate in his defense before the Court of
Criminal Appeals.
(3) Appellant’s first appellate defense counsel did not
contact him while the case was pending before the Court of
Criminal Appeals. As a result, Appellant’s first defense
counsel did not learn of Appellant’s mental health issues and
did not bring those issues to the attention of the Court of
Criminal Appeals.
(4) There was substantial delay in the post-trial
processing and docketing of the case, but Appellant’s first
defense counsel failed to raise the issue of post-trial delay
before the Court of Criminal Appeals.
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(5) The post-trial and docketing delays were unreasonable
and prejudicial.
Appellant’s new defense counsel submitted a number of
documents concerning Appellant’s mental condition, including a
medical diagnosis that Appellant suffers from schizoaffective
disorder, and statements from his mother concerning his
treatment and behavior. The documents refer to delusional
thoughts, self-inflicted injuries, and management of his
behavior with medication. The documents submitted by the new
appellate defense counsel also indicate that the initial
appellate defense counsel did not contact Appellant while the
case was pending at the Court of Criminal Appeals. The
Government has not submitted documentation rebutting the
information in these documents.
Under these circumstances, we shall treat the statements in
the documents as establishing the factual setting of the
appellate proceedings. See United States v. Ginn, 47 M.J. 236,
250 (C.A.A.F. 1997). In particular, we shall proceed on the
basis that Appellant has a mental condition that potentially
affects his competence to assist in the present proceedings;
that the same circumstances applied during the proceedings in
this case before the Court of Criminal Appeals; and that the
initial appellate defense counsel did not contact him while the
case was pending before the Court of Criminal Appeals.
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II. DISCUSSION
This case involves a guilty plea and a thirty-six page
record. A total of 847 days elapsed between the completion of
Appellant’s court-martial and the docketing of his appeal at the
Court of Criminal Appeals. The 572-day period between the
convening authority’s action and docketing at the lower court
represents the most glaring deficiency in the post-trial
processing of this case. Transmission of the record of trial
from the field to the court is a ministerial act, routinely
accomplished in a brief period of time in the absence of special
circumstances. There are no special circumstances in this case;
indeed, no explanation for the delay has been offered.
Likewise, there is no explanation for the lengthy period -- 275
days -- taken by the convening authority to act on this case.
The Court of Criminal Appeals has two distinct
responsibilities in addressing appellate delay. See Toohey v.
United States, 60 M.J. 100, 103-04 (C.A.A.F. 2004). First, the
court may grant relief for excessive post-trial delay under its
broad authority to determine sentence appropriateness under
Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000). See United
States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002). Second, as
a matter of law, the court reviews claims of untimely review and
appeal under the Due Process Clause of the Constitution. U.S.
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Const. amend. V; see Diaz v. Judge Advocate General of the Navy,
59 M.J. 34, 38 (C.A.A.F. 2003).
Because a sentence appropriateness analysis under Article
66(c), UCMJ, is highly case specific, the details of a
servicemember’s post-trial situation constitute an important
element of a court’s analysis. See, e.g., United States v.
Bodkins, 60 M.J. 322, 324 (C.A.A.F. 2004). Likewise, a due
process review of a claim of unreasonable delay involves a four-
factor analysis in which at least two of the factors concern the
personal post-trial circumstances of the servicemember -– i.e.,
reasons for asserting or not asserting the right to timely
review, and prejudice. See United States v. Moreno, 63 M.J.
129, 138-41 (C.A.A.F. 2006). In such cases, the servicemember
may well be the best source of information on these factors.
See, e.g., United States v. Jones, 61 M.J. 80, 82-83 (C.A.A.F.
2005).
The present case involves a post-trial delay in performing
the routine, nondiscretionary, ministerial task of transmitting
the record from the convening authority to the Court of Criminal
Appeals. See United States v. Oestmann, 61 M.J. 103, 104
(C.A.A.F. 2005). The appellate delay was compounded by a
lengthy period between the end of trial and the convening
authority’s action.
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United States v. Simon, No. 05-0563/MC
The extensive post-trial delays in the present case raise
substantial questions under both a sentence appropriateness and
due process analysis. At the Court of Criminal Appeals,
however, the initial appellate defense counsel did not assign
any errors. The unrebutted record on appeal indicates that
counsel had no contact with Appellant while the case was pending
before the lower court. Further, the unrebutted record
indicates that Appellant suffered from a significant mental
health condition. In short, the problem of evaluating the
treatment of appellate delay by the lower court is compounded by
questions as to whether the initial appellate counsel was
ineffective by not communicating with Appellant, see United
States v. MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994), and
whether Appellant was mentally competent to participate in the
appellate process before the lower court. See Rule for Courts-
Martial (R.C.M.) 1203(c)(5).
Although we could order further inquiry regarding the prior
proceedings at the Court of Criminal Appeals, including whether
Appellant received effective assistance of appellate counsel and
whether Appellant was mentally competent at that earlier time,
we decline to do so where such an inquiry would add further time
to an already lengthy appellate process without addressing the
merits of the ongoing appellate delay issues in the present
case.
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Under the circumstances of this case, it is appropriate for
the lower court to conduct a new review under Article 66(c),
UCMJ. In that review, the court shall expressly address the
question of whether the post-trial delays in the present case
warrant relief either as a matter of sentence appropriateness or
due process. See Oestmann, 61 M.J. at 104. The court’s
analysis shall include separate treatment of the issues of
sentence appropriateness and due process for each of the
following periods: (1) from the conclusion of trial to the
convening authority’s action; (2) from the convening authority’s
action to docketing at the Court of Criminal Appeals; and (3)
the overall period from the conclusion of trial to issuance of
the original decision by the Court of Criminal Appeals. At the
outset of such further proceedings, the court shall determine --
under the circumstances presented to the court at the time of
such further proceedings -- whether there is a question as to
Appellant’s competence to participate in the appellate
proceedings. If so, the court shall take appropriate action
under R.C.M. 1203(c)(5).
III. CONCLUSION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is set aside. The record of trial is
returned to the Judge Advocate General of the Navy for remand to
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the Court of Criminal Appeals for a review under Article 66(c),
UCMJ. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000),
will apply.
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