Filed: Oct. 18, 2016
Latest Update: Mar. 03, 2020
Summary: United States v. Banks, 75 M.J. 2002) ([Pursuant to Article 66(c), UCMJ, service courts are], required to determine what findings and sentence should be approved, based on all, the facts and circumstances reflected in the record, including the unexplained and, unreasonable post-trial delay.
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, HERRING, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist WILLIAM C. MILLAY
United States Army, Appellant
ARMY 20130341
Headquarters, United States Army Alaska
David L. Conn, Military Judge (arraignment)
Timothy Grammel, Military Judge (trial)
Colonel Tyler J. Harder, Staff Judge Advocate (pretrial)
Colonel Erik L. Christiansen, Staff Judge Advocate (post-trial)
For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Major Christopher D.
Coleman, JA; Captain Patrick J. Scudieri, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA (on
brief).
18 October 2016
----------------------------------
SUMMARY DISPOSITION
----------------------------------
CAMPANELLA, Senior Judge:
Where the government is responsible for 593 days of post-trial delay, we
grant relief.
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of violating lawful general regulations,
attempted espionage, making a false official statement, violating 18 U.S.C. § 793(d)
(Gathering, Transmitting, or Losing Defense Information), and violating the general
article by solicitation to commit espionage, in violation of Articles 92, 106(a), 107,
and 134 Uniform Code of Military Justice, 10 U.S.C. §§ 892, 906(a), 907, 934
(2006) [hereinafter UCMJ]. A panel composed of officer and enlisted members
sentenced appellant to a dishonorable discharge, confinement for nineteen years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The military
judge credited appellant with 535 days of pretrial confinement credit against the
sentence to confinement. Pursuant to a pretrial agreement, the convening authority
MILLAY—ARMY 20130341
approved only so much of the adjudged sentence as provided for a dishonorable
discharge, confinement for sixteen years, forfeiture of all pay and allowances, and
reduction to the grade of E-1. He also approved 535 days of confinement credit.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one allegation of error—dilatory post-trial delay—which merits relief. We
have also considered those matters personally raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and find them to be without merit.
LAW AND DISCUSSION
The panel sentenced appellant on 15 April 2013. Trial and defense counsel
received the record of trial (ROT) for review on 9 February 2014. Defense counsel
completed his examination of the 552-page ROT on 7 March 2014 and trial counsel
completed his examination on 10 March 2014. *
After resolving issues involving the review of a classified record, the military
judge received the ROT on 27 May 2014, completed his initial review on 8 June
2014, and returned the ROT for corrections. He received the corrected ROT on 17
June 2014, and completed his review on 18 June 2014. The Staff Judge Advocate
(SJA) signed his recommendation (SJAR) on 22 September 2014.
Appellant was served with the ROT and SJAR on 24 October 2014, and fifty-
three days later on 16 December 2014, his counsel submitted matters to the
convening authority under Rule for Courts-Martial [R.C.M.] 1105. Article 60(b)(1),
UCMJ, provides that an accused’s submissions to the convening authority “shall be
made within 10 days after the accused has been given an authenticated record of trial
and, if applicable, the recommendation of the staff judge advocate.” If an accused
shows additional time is required to submit matters, for “good cause” the
government “may extend the applicable period . . . for not more than an additional
20 days.” UCMJ art. 60(b)(2) (emphasis added). The initial ten-day period is
attributable to the government, the next twenty-day period is attributable to the
defense, and the remainder is attributable to the government because Article
60(b)(2), UCMJ, prohibits the government from granting an extension beyond
twenty-days. United States v. Banks, 75 M.J. 746, 2016 CCA LEXIS 483, at *5-6
(Army Ct. Crim. App. 16 Aug. 2016).
The SJA signed his addendum to the SJAR on 18 December 2014, and the
convening authority took action on 19 December 2014. The ROT arrived at this
court on 8 January 2015 and was received by the Defense Appellant Division on 12
*
The time the trial counsel took to review the record does not count as defense delay.
See e.g. United States v. Toro, ARMY 20130441, 2015 CCA LEXIS 450, at *11 fn.
17 (Army Ct. Crim. App. 23 October 2015).
2
MILLAY—ARMY 20130341
January 2015. Appellant filed his brief over six months later on 31 July 2015. The
government responded another six months later on 19 February 2016. Appellant
moved this court for speedy review of his case on 31 August 2016.
Of the 613 days from sentence to action, the defense is responsible for twenty
days and the government is responsible for 593 days. There is a presumption of
unreasonable delay where the convening authority does not take action within 120
days of the completion of trial. United States v. Moreno, 63 M.J. 129, 142
(C.A.A.F. 2006). The government asserts as the most compelling reasons for the
delay, “the complexity of this court-martial, the fact it contained numerous
classified records, and the handling of these classified records took additional time.”
Appellant did not assert his right to speedy post-trial processing until his appeal and
does not claim prejudice because of the delay.
Although we find no due process violation in the post-trial processing of
appellant’s case, we must still review the appropriateness of the sentence in light of
the dilatory post-trial processing. UCMJ art. 66(c); United States v. Tardif, 57 M.J.
219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ, service courts are]
required to determine what findings and sentence ‘should be approved,’ based on all
the facts and circumstances reflected in the record, including the unexplained and
unreasonable post-trial delay.”). See United States v. Collazo,
53 M.J. 721, 727
(Army Ct. Crim. App. 2000). We find relief from this court is appropriate. As such
this court provides relief in our decretal paragraph.
CONCLUSION
Upon consideration of the entire record, the findings of guilty are
AFFIRMED. Given the dilatory post-trial processing, we affirm only so much of the
sentence as extends to a dishonorable discharge, confinement for fifteen years and
eleven months, forfeiture of all pay and allowances, and reduction to the grade of
E-1. 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).
Judge HERRING and Judge PENLAND concur.
FORTHE
FOR THECOURT:
COURT:
MALCOLM
MALCOLMH. H.SQUIRES,
SQUIRES,JR.
JR.
Clerk
Clerkof
ofCourt
Court
3
