Filed: Jul. 31, 2014
Latest Update: Mar. 02, 2020
Summary: Moreover, an additional, 23 days (2 July 2013 – 24 July 2013) were subtracted from the 328 days to move this, case from completion of trial to action due to defense delay in submitting the R.C.M., 1105/1106 matters., 4, The senior installation court reporter explained that the court reporter section at, Fort Hood was faced with a shortage of court reporters due to a variety of, circumstances, including deployments, leave, medical problems, and additional, duties that were assigned to court repor
Summary: Moreover, an additional, 23 days (2 July 2013 – 24 July 2013) were subtracted from the 328 days to move this, case from completion of trial to action due to defense delay in submitting the R.C.M., 1105/1106 matters., 4, The senior installation court reporter explained that the court reporter section at, Fort Hood was faced with a shortage of court reporters due to a variety of, circumstances, including deployments, leave, medical problems, and additional, duties that were assigned to court reporters.
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UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, TELLITOCCI, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist DAVID J. PENROD
United States Army, Appellant
ARMY 20120836
Headquarters, Fort Hood
James L. Varley, Military Judge
Colonel Stuart W. Risch, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Vincent T. Shuler, JA; Captain Brian D. Andes, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Major Robert A. Rodrigues, JA; Captain
Jaclyn E. Shea, JA (on brief).
31 July 2014
---------------------------------
SUMMARY DISPOSITION
---------------------------------
Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of one specification of forcible sodomy in violation of
Article 125, Uniform Code of Military Justice, 10 U.S.C. § 925 [hereinafter UCMJ].
The convening authority approved the adjudged sentence of a dishonorable
discharge, confinement for thirty-six months, forfeiture of all pay and allowances,
and reduction to the grade of E-1.
This case is before us pursuant to Article 66, UCMJ. Appellant raises one
assignment of error, which merits discussion and relief. 1
1
Appellant also personally raises two issues pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), neither of which merits discussion or relief.
PENROD—ARMY 20120836
BACKGROUND
Appellant’s trial concluded on 4 September 2012. The 105-page record of
trial was transcribed and provided to defense counsel for review on 30 April 2013,
237 days after trial. The record was then presented to the military judge who
authenticated it on 17 May 2013. The staff judge advocate (SJA) signed his post-
trial recommendation (SJAR) almost a month later on 12 June 2013 and served it
upon defense counsel on 12 June 2013 and upon appellant on 21 June 2013.
On 24 July 2013, appellant’s defense counsel submitted clemency matters in
which he, inter alia, alleged the government had exceeded timeliness standards in
the post-trial processing of his case. In his addendum to the SJAR, the SJA
identified the issue as one that may represent an allegation of legal error, but
disagreed that legal error had occurred and recommended the convening authority
take no corrective action. The convening authority took action on 24 August 2013,
approving the adjudged sentence. On 17 October 2013, fifty-four days after action,
the record was received at this court.
LAW AND DISCUSSION
In his assigned error, appellant alleges:
THE DILATORY POST-TRIAL PROCESSING OF
[APPELLANT'S] CASE WARRANTS RELIEF BECAUSE
IT TOOK 382 [sic] DAYS FROM COMPLETION OF
TRIAL TO ACTION . . . IN A CASE WHERE THE
RECORD OF TRIAL WAS ONLY 106 PAGES IN
LENGTH.
In United States v. Moreno, our superior court established timeliness
standards for various stages of the post-trial and appellate process. 63 M.J. 129,
142-43 (C.A.A.F. 2006). Specifically, action of the convening authority should be
taken no later than 120 days after completion of the trial, and the record of trial
should be docketed with this court within 30 days of the convening authority’s
action.
Id. 2 Failure to satisfy any of these standards creates a “presumption of
unreasonable delay,” prompting this court to apply and balance the four factors set
out in Barker v. Wingo,
407 U.S. 514, 530 (1972), in order to determine whether
appellant’s due process rights were violated. See
Moreno, 63 M.J. at 136.
2
A third standard, timeliness of appellate review before this court, is not relevant in
appellant’s case.
Moreno, 63 M.J. at 142-43.
2
PENROD—ARMY 20120836
Taking 305 days 3 to move appellant’s case from trial completion to action is
presumptively unreasonable, as is the nearly two months it took to transfer the
record of trial to this court following the convening authority’s action. Id. at 142. In
the face of these lengthy delays, we now apply and balance the four factors set out
Barker. Id at 136.
As for the first factor, the length of the delay, 305 days to complete initial
action and 54 days to ship the record to this court far exceed the timeliness standard
for those respective periods. Id. at 142. As for the second factor, reasons for the
delay, we reviewed the affidavits prepared by the chief of military justice and the
senior court reporter which were included in the record as government appellate
exhibits.
Id. at 136. Overall, because the biggest portion of the 305-day delay was
caused by the 237 days it took to transcribe a 105-page record of trial, we
specifically examined the explanation for this delay and found it unpersuasive. 4 See
United States v. Arriaga,
70 M.J. 51, 57 (C.A.A.F. 2011) (“[P]ersonnel and
administrative issues . . . are not legitimate reasons justifying otherwise
unreasonable post-trial delay.”). Furthermore, the lackadaisical fifty-four days from
action to delivery at this court is not only facially unreasonable, but not
satisfactorily explained or justified.
Although we find the first two factors favor appellant, the last two Barker
factors do not favor appellant. See Moreno, 63 M.J. at 138. Specifically, although
appellant did assert his right to a speedy trial as part of his R.C.M. 1105/1106
submission, he waited over 300 days after his trial ended to do so. We therefore
find this factor is of little to no help to appellant.
3
In appellant’s assignment of error he mistakenly alleges that the delay from trial to
action was 382 days, when in fact, according to the tables submitted by both parties,
action took place 328 days after trial. However, the total delay from trial to the date
this court received the record of trial was indeed 382 days. Moreover, an additional
23 days (2 July 2013 – 24 July 2013) were subtracted from the 328 days to move this
case from completion of trial to action due to defense delay in submitting the R.C.M.
1105/1106 matters.
4
The senior installation court reporter explained that the “court reporter section” at
Fort Hood was faced with a shortage of court reporters due to a variety of
circumstances, including deployments, leave, medical problems, and additional
duties that were assigned to court reporters. The chief of military justice detailed
the processing after transcription was complete.
3
PENROD—ARMY 20120836
Finally, we find appellant has not established prejudice as a result of this
delay. Id. at 138-41. Appellant has alleged no prejudice as a result of the delays in
post-trial processing. Additionally, we find no prejudice after specifically reviewing
each of the three sub-factors 5 found in Moreno, nor do we find the post-trial
processing was “so egregious that tolerating it would adversely affect the public’s
perception of the fairness and integrity of the military justice system.” Id.; United
States v. Toohey,
63 M.J. 353, 362 (C.A.A.F. 2006).
Nonetheless, pursuant to Article 66(c), UCMJ, we have the authority to grant
appropriate relief in cases where we have not found actual prejudice to appellant,
but “unreasonable and unexplained post-trial delays” are present. United States v.
Tardif, 57 M.J. 219, 220 (C.A.A.F. 2002); see United States v. Ney,
68 M.J. 613, 617
(Army Ct. Crim. App. 2010); United States v. Collazo,
53 M.J. 721, 727 (Army Ct.
Crim. App. 2000).
In finding the 359-day delay from trial to the receipt of the record of trial at
this court to be unreasonable, we recognize the government has specifically
attempted to offer an explanation for the most egregious portions of the delay: the
238 days it took to transcribe a 106-page record of trial and the 54 days between
action and receipt at this court. However, we ultimately find the explanations
unpersuasive and will grant relief in our decretal paragraph.
CONCLUSION
The findings of guilty are AFFIRMED. After considering the entire record,
the court AFFIRMS only so much of the sentence as provides for a dishonorable
discharge, confinement for thirty-five months, forfeiture of 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 the sentence set aside by this
decision are ordered restored. See UCMJ arts. 58b(c) and 75(a).
FOR
FOR THE
THE COURT:
COURT:
MALCOLM
MALCOLM H.H.
SQUIRES, JR.
SQUIRES, JR.
Clerk
Clerkofof
Court
Court
5
(1) Oppressive incarceration pending appeal; (2) Particularized anxiety and
concern; and (3) Impairment of ability to present a defense at rehearing.
4
PENROD—ARMY 20120836
5
