Filed: Dec. 17, 2013
Latest Update: Mar. 02, 2020
Summary: The post-trial processing of appellants case does not warrant, the extraordinary measure of reducing appellants approved confinement to a date, ending on or before his ETS date simply to reimburse appellant monies previously, forfeited nor does it warrant disapproval of his punitive discharge.
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ, and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant RICHARD MARTINEZ, JR.
United States Army, Appellant
ARMY 20110570
Headquarters, 10th Mountain Division
Michael J. Hargis, Military Judge
Lieutenant Colonel Olga M. Anderson, Acting Staff Judge Advocate (pretrial)
Colonel Michael O. Lacey, Staff Judge Advocate ( first recommendation and
addendum)
Lieutenant Colonel Olga M. Anderson, Staff Judge Advocate ( second and third
recommendation)
Colonel Steven C. Henricks, Staff Judge Advocate (third addendum)
For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Amy E. Nieman, JA; Captain James S. Trieschmann, Jr., JA (on brief ).
For Appellee: Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues,
JA; Captain Daniel H. Karna, JA (on brief).
17 December 2013
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SUMMARY DISPOSITION ON FURTHER REVIEW
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`
ALDYKIEWICZ, Judge:
A military judge, sitting as a general court -martial, convicted appellant,
pursuant to his pleas, of possessing child pornography, in violation of Article 134,
Uniform Code of Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The
military judge sentenced appellant to a bad -conduct discharge, reduction to the grade
of E-1, and confinement for fifteen months. The convening authority approved only
MARTINEZ—ARMY 20110570
so much of the sentence extending to a bad-conduct discharge, confinement for three
hundred and twenty-nine days, and reduction to the grade E-1. 1
The case is before the court for review under Article 66, UCMJ . Appellant
raises two assignments of error: the record of trial is substantially incomplete thus
requiring approval of a “nonverbatim record sentence” and “the dilatory post -trial
processing of appellant’s case warrants relief.” Both assignments of error lack merit
and warrant no relief.
Appellant’s case is before this court for its third review. During this court’s
first review, the court was presented with two records, an original and a
reconstructed record. 2 Neither record was a complete, properl y authenticated record
of trial, both suffering from deficiencies related to a trial conducted in Afghanistan
with a military judge traveling throughout various theaters of operation, as well as
the United States. Complicating matters further was the government’s attempt to
send original documents to the military j udge using the military postal system and
use the same system to reconstruct the record. Additionally, the staff judge
advocate’s addendum preceding the convening authority’s initial action was
ambiguous and potentially misleading. 3 As a result, on 5 March 2013, this court set
1
Appellant’s adjudged sentence was a bad-conduct discharge, confinement for
fifteen months, and reduction to the grade of E -1. Pursuant to a pretrial agreement,
the convening authority agreed to “[a]pprove no confinement in excess of twelve
(12) months.”
2
Our initial review of appellant’s case revealed the following omission s from
appellant’s authenticated record of trial , omissions noted by appellate defense
counsel in his initial appellate pleading before this court: Def. Ex. A (appellant’s
“Good Soldier Book” containing his evaluations, awards, certificat es, and other
military records); Def. Ex. B (a letter from appellant to the mili tary judge requesting
clemency); Def. Ex. C (appellant’s combat stress report); and Pros. Ex. 19 (a
supplemental stipulation of fact). The court, in reviewing the records initially
provided, that is, the “original” and “reconstructed” (i.e., authenticated) record, also
noted the following issues: an apparent failure to incorporate errata changes; two
varying copies of Pros. Ex. 1 (the stipulation of fact), one an unedited version and
the other with apparent pen and ink changes made at time of trial; two varying
copies of Pros. Ex. 15 (Dep’t of Army, Form 4137, Evidence/Propert y Custody
Document (Jul. 1976)); and the absence of any prosecution exhibits for
identification that were not admitted into evidence.
3
The staff judge advocate recommended approval of the adjudged sentence as
modified by the pretrial agreement, limiting confinement to 12 months. The
(continued. . .)
2
MARTINEZ—ARMY 20110570
aside the convening authority’s action and directed assembly of a single complete,
properly authenticated, and complete record of trial and a new staff judge advocate
recommendation and action by the same or different conven ing authority in
accordance with Article 60(c)-(e), UCMJ. United States v. Martinez, ARMY
20110570, 2013 WL 1092504 (Army Ct. Crim. App. 5 March 2013) (summ. disp.).
On 7 June 2013, this court received appellant’s case for its second review.
Unfortunately, the issues noted during this court’s initial review went unaddressed
and the court received a record of trial suffering from the same deficiencies noted
during our first review. As a result, on 2 July 2013, we again set aside the
convening authority’s action and returned the record of trial to the convening
authority to assemble a single, properly authenticated, and accurate record of trial.
We also directed that “[t]he staff judge advocate recommendation and any addendum
thereto [ ] clarify and resolve any ambiguity created by the multiple staff judge
advocate recommendations and addenda thereto previously published in appellant’s
case, most notably the [ ] addendum recommending clemency while simultaneously
recommending approval of the pretrial agreement term of confinement.” Finally, we
noted that our post-trial remand of the case “[afforded] the convening authority the
opportunity to address appellant’s allegation of dilatory post -trial processing.”
United States v. Martinez, ARMY 20110570 (Army Ct. Crim. App. 2 July 2013)
(summ. disp. on further review).
We now have appellant’s case before us for a third review. The record of trial
deficiencies noted in both our 5 March 2013 and 2 July 2013 decisions have been
addressed. On 15 July 2013, the presiding military judge authenticated the complete
record of trial. 4 The staff judge advocate’s recommendation to grant clemency for
the delayed post-trial processing of appellant’s case and the convening authority’s
grant of clemency, reducing appellant’s period of confinement from the pretrial
agreement period of 12 months to 329 days, moots any issue associated with the
(. . . continued)
addendum thereto recommended “some additional clemency to ameliorate any
mistaken impression that the [appellant] has been prejudiced by delay.” However,
the addendum concludes by recommending approval of the sentence as limited by the
pretrial agreement resulting in no clemency to appellant.
4
The only noted deficiency remaining, and one not bearing on the completeness or
verbatim nature of the record, is that the court reporter did not make every change
suggested by counsel on their errata pages. All changes suggested by the military
judge were made by him personally. The failure to incorporate all suggested errata
changes by counsel, many of which were stylistic, punctuation/capitalization
changes does not affect this decision.
3
MARTINEZ—ARMY 20110570
previously ambiguous and potentially misleading recommendations and addenda
thereto.
Article 54, UCMJ, requires a complete record of the proceedings and
testimony for any general court-martial resulting in a punitive discharge,
confinement over six months, or forfeiture of pay for a period more than six months.
A complete record shall include “exhibits . . . or descrip tions of any exhibits which
were received in evidence . . . .” R.C.M. 1103(b)(2)(D)(v). The requirement for a
complete record of trial to support a sentence which includes a punitive discharge or
confinement exceeding six months cannot be waived. United States v. Gaskins,
69 M.J. 569, 571 (Army Ct. Crim. App. 2010) (en banc) , writ granted, cause
remanded
69 M.J. 452 (C.A.A.F. 2010), and aff’d in part, rev’d in part
72 M.J. 225
(C.A.A.F. 2013) (citations omitted). We review de novo questions of whether a
record of trial is incomplete. United States v. Henry,
53 M.J. 108, 110 (C.A.A.F.
2000).
While not a model of post-trial processing, the government, on its third
attempt, compiled a complete, verbatim, and properly authenticated record of trial.
It was this record that is referenced in the staff judge advocate’s recommendation
and relied upon by the convening authority prior to taking action in appellant’s case.
Therefore, appellant’s claim for relief based on a “substantially incomplete” record
of trial fails.
We next turn to appellant’s allegation of dilatory post -trial processing.
Considering the standards for post-trial processing set out by our higher court in
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) and their applicability when
cases are remanded back to a convening authority by a court of criminal appeals,
United States v. Mackie,
72 M.J. 135, 136 (C.A.A.F. 2013), we find no deprivation
of appellant’s due process rights. In reaching this conclusion, we necessarily find,
inter alia, that: the post-trial processing from sentencing on 9 July 2011 until the
first action in appellant’s case on 27 March 2012, was in excess of Moreno’s 120-
day standard and thus facially unreasonable ; 5 some of the delay is attributable to the
record being lost in the mail and the government’s attempt to reconstruct the record;
appellant’s initial post-trial matters did not raise the issue of post-trial delay,
however, he did complain in his supplemental post -trial matters and in his pleadings
before this court; and appellant suffered no prejudice from the delayed post -trial
processing of his case.
5
A review of the post-trial processing of appellant’s case reveals no other periods in
violation of those standards announced by Moreno and clarified by Mackie.
4
MARTINEZ—ARMY 20110570
Having found no violation of appellant’s due process rights, we look to this
court’s authority under Article 66(c), UCMJ, to grant relief when there has been
unreasonable post-trial delay absent any showing of prejudice. See United States v.
Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); United States v. Collazo,
53 M.J. 721, 727
(Army Ct. Crim. App. 2000). As previously noted, while not a model of post -trial
processing, we conclude the post-trial delay in this case does not adversely affect
the public's perception of the fairness and integrity of the military justice system.
Considering the totality of the circumstances, to include the convening authority’s
sentence reduction to address the delayed post -trial processing of appellant’s case,
we find no additional relief is warranted.
In determining how much of appellant’s sentence should be approved in light
of post-trial delay, we note that appellant’s expiration of term of service (ETS) date,
as stipulated to in Pros. Ex. 1, and verified in Pros. Ex. 2, was 22 November 2011.
As a result, appellant was in a no-pay due status from 23 November 2011 throughout
the remainder of his confinement. Therefore, the convening authority’s 25
September 2013 action, approving only 329 days of confinement, resulted in nei ther
early release nor the return of forfeited monies, pursuant to Article 58(b), UCMJ, to
appellant. Considering the automatic forfeiture provisions of Article 58(b), UCMJ,
and appellant’s ETS date, to provide any meaningful relief related for post -trial
delay, this court would have to either reduce appellant’s period of approved
confinement to a period that would have ended on or before his ETS date (i.e., a
reduction of an additional 193 or more days of confinement) or disapprove his
punitive discharge. The post-trial processing of appellant’s case does not warrant
the extraordinary measure of reducing appellant’s approved confinement to a date
ending on or before his ETS date simply to reimburse appellant monies previously
forfeited nor does it warrant disapproval of his punitive discharge. Recognizing that
appellant received neither forfeited monies returned nor early release by the
convening authority’s sentence reduction, our decision to deny relief is unchanged.
Cf. United States v. Collins, 44 M.J. 830, 833 (Army Ct. Crim. App.) (“Providing
relief . . . that grants the appellant major windfall [] is neither required nor
appropriate.”).
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.
Senior Judge KERN and Judge MARTIN concur.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
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