UNITED STATES v. E2 BROWN (2021)

OPINION OF THE COURT

It is axiomatic that once the post-trial processing of a court-martial is complete, it should not take the government over 200 days to accomplish the simple, ministerial task of mailing a record of trial to this court. Yet that is precisely what occurred in appellant's case. Twisting the knife on itself, the government provides no explanation whatsoever for the delay. In this opinion, we not only award appellant appropriate relief for the unreasonable and unexplained delay in the post-trial processing of his court-martial, we also settle on a framework for analyzing claims of dilatory post-trial processing under the new procedures enacted in the Military Justice Act of 2016, Pub. L. No. 114-328, §§ 5001-5542 (23 Dec. 2016) and implemented in the 2019 Rules for Courts-Martial [R.C.M.] by Executive Order 13,825, 83 Fed. Reg. 9889 (8 Mar. 2018).

I. BACKGROUND

Consistent with his plea, a military judge sitting as a general court-martial convicted appellant of two specifications of sexual assault of a child, one specification of sexual abuse of a child, and one specification of wrongfully viewing child pornography, in violation of Articles 120b and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920b and 934 (2016) [UCMJ]. The convening authority approved the adjudged sentence of a dishonorable discharge, confinement for five months, and reduction to the grade of E-l. Although all of appellant's misconduct occurred in 2018, his case was referred to trial in 2019. Before this court, appellant argues he is entitled to relief based on dilatory post-trial processing and also directs this court to an error in the entry of judgment.

On 9 July 2019, appellant pleaded guilty to all charged offenses and was sentenced. The brief proceeding produced only 121 pages of transcribed record. The immediate post-trial processing of appellant's court-martial was relatively efficient and unremarkable. In summary, appellant submitted his post-trial matters to the convening authority on 24 July 2019, the convening authority took action on 12 August 2019, judgment was entered on 1 October 2019, and the court reporter certified the record of trial on 28 October 2019. From announcement of sentence up to and including the date of court reporter certification, 111 days elapsed. At this point, everything seemed to be on track. What followed is still a mystery.¹

The next significant event occurred on 16 July 2020 when, at long last, appellant's case was docketed with this court. From the date of certification, 28 October 2019, up to and including the date of docketing, 262 days elapsed. The record contains no explanation for this period of delay, nor does it contain a plausible rationale for the delay. Additionally, on brief before this court, the government offers no explanation.

II. LAW AND DISCUSSION

“Due process entitles convicted service members to a timely review and appeal of court-martial convictions.” United States v. Moreno, 63 M.J. 129, 132 (C.A.A.F. 2006) (citing Toohey v. United States, 60 M.J. 100, 101 (C.A.A.F. 2004)). The Military Justice Act of 2016 ushered in sweeping changes to longstanding post-trial processing procedures. One of the many issues arising from these changes is how a court of criminal appeals (CCA) is supposed to analyze an appellant's claim that dilatory post-trial processing resulted in a violation of due process.

For years, CCAs have applied the familiar framework articulated by the Court of Appeals for the Armed Forces (CAAF) in Moreno. In Moreno, the CAAF established a presumption of unreasonable delay when “the action of the convening authority is not taken within 120 days of the completion of trial” [phase I] or when a “record of trial is not docketed by the service [CCA] within thirty days of the convening authority's action” [phase II]. Id. at 142. Accordingly, in cases where convening authorities did not take action within 120 days of the completion of trial, or when a record of trial was not docketed within 30 days of the convening authority's action, these presumptively unreasonable delays triggered a full due process analysis using the four-factor test from Barker v. Wingo, 407 U.S. 514, 529-33, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The Military Justice Act of 2016, however, made a stringent application of Moreno's phase I and II presumptions impossible in part because convening authorities are no longer required to take action. UCMJ arts. 60, 60a (2018 & Supp. I); see R.C.M. 1109(d); 1110(c), (e). And even in cases where convening authorities elect to take action, the new post-trial processing procedures require several additional steps before a case is docketed for appellate review, including the entry of judgment and the preparation, authentication, and certification of the record of trial. See R.C.M. 1111(a); 1112(c), (f); AR 27-10, para. 5-56(f). Given these changes, how then is a CCA supposed to apply Moreno's phase I and II presumptions, both of which refer to the procedural relic of convening authority action?

We answer this question by adopting and applying the reasoning from our sister court in United States v. Livak, 80 M.J. 631 (A.F. Ct. Crim. App. 2020). Moving forward, this court will presume unreasonable delay in cases when more than 150 days elapse between final adjournment and docketing with this court. See id. at 633-34; R.C.M. 1101(a). This approach is faithful to the CAAF's timelines established in Moreno by collapsing phases I and II into a consolidated 150-day period. We find this big-picture framework is eminently workable. It focuses less on the nuts and bolts of when specific events occur within the larger post-trial process by establishing definitive starting and end points, specifically final adjournment and docketing with this court. Finally, we are confident this approach will provide welcome clarity to military justice practitioners at all echelons.

We review de novo whether an appellant's due process rights were violated because of post-trial delay. Moreno, 63 M.J. at 135 (citations omitted). Absent a due process violation, this court considers whether relief for excessive post-trial delay is warranted based on this court's sentence appropriateness authority under Article 66(d), UCMJ. See United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); United States v. Arias, 72 M.J. 501, 507 (Army Ct. Crim. App. 2012).

A. Due Process Analysis

Applying the 150-day standard to this case, the government clearly falls far short. Over 350 days passed between the final adjournment of appellant's trial on 9 July 2019 and docketing with this court on 16 July 2020. Finding this delay presumptively unreasonable, we conduct the familiar Moreno due process analysis by balancing four factors: (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. 63 M.J. at 135-36. When an appellant has not shown prejudice from the delay, we cannot find a due process violation unless the delay is so egregious as to “adversely affect the public's perception of the fairness and integrity of the military justice system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).

Here, the first factor weighs heavily in appellant's favor. The government took more than two times the presumptively reasonable amount of time to docket appellant's case with this court following final adjournment. Even worse, the great bulk of time occurred after appellant's record of trial was certified and pending only the “clerical task” of putting it in the mail to this court. Moreno, 63 M.J. at 137. We are at a loss to understand this failure in appellant's case, a case that is, by any measure, on “the simple end of trial practice.” United States v. Mack, ARMY 20120247, 2013 WL 6528518, at *2, *3, 2013 CCA LEXIS 1016, at *5, *7-8 (Army Ct. Crim. App. 9 Dec. 2013) (Pede, C.J., concurring) (summ. disp.); (“If the simple things in simple cases reflect inattention and lapses in proficiency, what does it say about the rest of our quite complicated practice of military justice?”). This case raises the same concerning question and, regrettably, we have no answer.

Factor two also weighs in appellant's favor as the record contains no explanation for the delay. We reiterate that, just as it was under the old procedures, staff judge advocates are advised to explain post-trial processing delays in excess of the 150-day standard adopted in this opinion. See Moreno, 63 M.J. at 136; United States v. Bauerbach, 55 M.J. 501, 507 (Army Ct. Crim. App. 2001). Factor three weighs in the government's favor as the record contains no request from appellant for speedy post-trial processing. Addressing the prejudice factor, we note even before this court, appellant offers no particularized prejudice. Reviewing the record in its entirety, we discern none. In conclusion, we find the delay in this case, while lengthy and unexplained, is not so egregious as to adversely affect the public's perception of our system's fairness and integrity. Toohey, 63 M.J. at 362. Balancing all four factors, we find appellant's due process rights were not violated.

We recognize this opinion deviates from the plain language of Moreno. However, we cleave as closely as possible to the language of that opinion, applying the timelines of Moreno to the remaining post-trial processing guideposts in the new legal landscape, and maintaining the fundamental precept that “convicted servicemembers have a due process right to timely review and appeal of court-martial convictions.” Moreno, 63 M.J. at 129 (citing Toohey, 60 M.J. at 101).

B. Sentence Appropriateness Analysis

Finding no due process violation, we must still determine, “on the basis of the entire record,” what sentence “should be approved.” UCMJ, art. 66(d).² Considering the entire record of trial, and specifically the government's unexplained and flagrant failure to accomplish the simple ministerial task of timely mailing appellant's record of trial to this court, we conclude he is entitled to relief.

C. Modification of the Entry of Judgment

Appellant and the government agree the entry of judgment, dated 1 October 2019, incorrectly states the convening authority took no action. On 12 August 2019, the convening authority approved the adjudged sentence and, except for the portion extending to a dishonorable discharge, ordered it executed. We hereby modify the entry of judgment to properly reflect the convening authority's action on appellant's sentence. See R.C.M. 1112(c)(2).³ We appreciate counsel bringing these types of errors and irregularities to the court's attention; however, unless such an error colorably affects the legality of a court-martial's findings or sentence, see UCMJ art. 59(a), counsel should simply note the issue on brief rather than raising it as a standalone assignment of error.

III. CONCLUSION

The findings of guilty are AFFIRMED. Only so much of the sentence extending to a dishonorable discharge, confinement for four months, and reduction to the grade of E-l is AFFIRMED. All rights, privileges, and property, of which appellant has been deprived by virtue of that portion of his sentence set aside by this decision are ordered restored. See UCMJ arts. 58b(c) and 75(a).

FOOTNOTES

1.   Both of the military judges in appellant's case “authenticated” the record of trial after the court reporter certified the record of trial, with one authentication occurring on 19 November 2019 and the other on 22 November 2019. It appears this occurred out of order, as both the R.C.M. and Army regulation state that the court reporter's certification of the record of trial is the last significant action prior to the forwarding of the record of trial. See R.C.M. 1112(c), (f) (2019); Army Reg. 27-10, Legal Services: Military Justice, paras. 5-56(f)-(g) (20 Nov. 2020) [AR 27-10]. Notably, only AR 27-10 refers to “authentication” by a military judge; this term does not appear in the 2019 R.C.M.

2.   We recognize the newly enacted Article 66(d)(2), UCMJ, specifically authorizes this court to “provide appropriate relief if the accused demonstrates error or excessive delay in the processing of the court-martial after the entry of judgment was entered into the record.” (emphasis added). We reject any argument that Article 66(d)(2), UCMJ, somehow cabins our broad and well-established sentence appropriateness authority under Article 66(d)(1), UCMJ, to provide relief for dilatory post-trial processing occurring at other phases of a court-martial.

3.   Page one of the entry of judgment incorrectly states “None” for “Any post-trial action by the convening authority.” “None” shall be replaced with “PV2 (E-2) Tynaji V. Brown, 587-79-5058, U.S. Army, D Company, 1st Battalion, 4th Infantry Regiment, Joint Multinational Readiness Center, the sentence is approved, and, except for that portion of the sentence pertaining to a Dishonorable Discharge, will be executed.”

ALDYKIEWICZ, Senior Judge:

Senior Judge BROOKHART and Judge WALKER concur.