Filed: Aug. 18, 2017
Latest Update: Mar. 03, 2020
Summary: For Appellant: Captain Cody Cheek, JA; UCMJ art. Even if the issue had been preserved, however, after applying the factors set, forth by our superior court in Quiroz, we conclude appellants convictions for, Specifications 3 and 5 of Charge II were not unreasonably multiplied for findings.
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, SALUSSOLIA, and FLEMING
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist ROBERT S. STITES
United States Army, Appellant
ARMY 20160358
Headquarters, Fort Drum
S. Charles Neill, Military Judge
Lieutenant Colonel John J. Merriam, Staff Judge Advocate (pretrial)
Colonel Peter R. Hayden, Staff Judge Advocate (post-trial)
For Appellant: Captain Cody Cheek, JA; Captain Payum Doroodian, JA.
For Appellee: Major Michael E. Korte, JA.
18 August 2017
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SUMMARY DISPOSITION
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FLEMING, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of three specifications of sexual abuse of a child, one
specification of sexual assault of a child, and one specification of rape of a child in
violation of Article 120b of the Uniform Code of Military Justice, 10 U.S.C. § 920b
(2012) [hereinafter UCMJ]. The military judge sentenced appellant to a
dishonorable discharge, confinement for forty years, and reduction to the grade of
E-1. In accordance with a pretrial agreement, the convening authority approved only
so much of the adjudged sentence as provided for a dishonorable discharge,
confinement for twenty-five years, and reduction to E-1.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
submits this case on its merits but raises three issues personally pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982); two merit brief discussion but no
relief.
STITES—ARMY 20160358
Post-Trial Delay
Appellant asserts he suffered an undue, post-trial delay because 236 days
elapsed between his court-martial and the convening authority’s action. 1 Post-trial
delay is presumed unreasonable if the government fails to take initial action within
120 days of the completion of trial. United States v. Moreno, 63 M.J. 129, 142
(C.A.A.F. 2006). Although, we find no due process violation 2 under Barker v.
Wingo,
407 U.S. 514 (1972), we must review the appropriateness of the sentence in
light of dilatory post-trial processing. UCMJ art. 66(c). Before reviewing sentence
appropriateness, the court notes that several personnel and administrative
explanations provided by the government were inadequate justifications for post-
trial delay. The Staff Judge Advocate’s memorandum for record regarding the delay
included the following explanations: the office had only two court reporters at the
time although four were authorized; the 216 page record took 126 days to transcribe;
the office took six four-day weekends; and the United States Disciplinary Barracks
took fifteen days to serve appellant with the record of trial. See United States v.
Arriaga,
70 M.J. 51, 57 (C.A.A.F. 2011) (holding “personnel and administrative
issues . . . are not legitimate reasons justifying otherwise unreasonable post-trial
delay.”). Four-day weekends are a soldier privilege, not a right, and they are not
appropriate reasons to justify post-trial delay. Based on all the facts and
circumstances reflected in the record, however, we find relief is not appropriate.
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).
Unreasonable Multiplication of Charges
“What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges [UMC] against one person.” Rule for Courts-
Martial [hereinafter R.C.M.] 307(c)(4). The prohibition against UMC “addresses
those features of military law that increase the potential for overreaching in the
exercise of prosecutorial discretion.” United States v. Campbell, 71 M.J. 19, 23
1
Appellant was sentenced on 20 May 2016 and the convening authority took action
on 10 January 2017. Appellant incorrectly states the action occurred on 11 January
2017 in asserting 236 days of post-trial delay. First, the correct number of days
between sentence and action equals 235. Second, appellant requested and received
for “good cause” an additional twenty days to submit matters under R.C.M. 1105.
Subtracting these twenty “good cause” days results in 215 days attributable to the
government as post-trial delay. See United States v. Banks,
75 M.J. 746, 748 (Army
Ct. Crim. App. 2016).
2
Appellant’s failure to make a timely request for speedy post-trial processing and to
assert any prejudice obviously weighs in the government’s favor.
2
STITES—ARMY 20160358
(C.A.A.F. 2012) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F.
2001)). For the first time on appeal, appellant asserts Specifications 3 and 5 of
Charge II are UMC. 3 Appellant’s failure to raise UMC at trial waives the issue on
appeal. Even if the issue had been preserved, however, after applying the factors set
forth by our superior court in Quiroz, we conclude appellant’s convictions for
Specifications 3 and 5 of Charge II were not unreasonably multiplied for findings.
As to Specification 3, appellant admitted to penetrating his step-daughter’s
vulva with his finger on divers occasions between on or about 11 February 2014 and
on or about 1 July 2014. As to Specification 5, appellant admitted to touching his
step-daughter’s genitalia with his hand on or about 1 July 2014; the only actus res
charged in the specification. Appellant then proceeded to confess to penetrating his
step-daughter’s vulva with his finger on or about 1 July 2014 during his providence
inquiry on Specification 5. A review of the record of trial, however, clearly
demonstrates that all parties agreed that Specification 3 encompassed only two
separate incidents in February 2014. The following discussion between the parties is
illustrative:
TC: So I’m essentially tracking two incidents for the
“divers occasions” [of Specification 3]: one on 11
February 2014; and then a second occasion a few days
later in mid-February of 2014.
DC: May I clarify with my client?
MJ: Certainly. [Defense counsel conferred with the
accused.]
DC: No objection, Your Honor.
Specifications 3 and 5 are aimed at separate distinct criminal acts on separate
dates. A finger penetrating a vulva, as charged in Specification 3, is a separate
distinct criminal act compared to a hand touching the genitalia, as charged in
3
At trial, defense counsel only requested the military judge merge Specifications 4
and 5 of Charge II for sentencing, thus waiving UMC for findings. Even if the issue
was not waived, Specifications 4 and 5 of Charge II were not unreasonably
multiplied for findings. Each specification is aimed at a distinct criminal act.
Appellant could have stopped at the sexual assault of his step-daughter without
continuing on and raping her as well. Standing convicted of two separate offenses
for these criminal acts does not exaggerate appellant’s criminality or unreasonably
increase appellant’s punitive exposure. We find no evidence of prosecutorial
overreaching, given the facts admitted at appellant’s court-martial support a finding
of guilty to both specifications.
3
STITES—ARMY 20160358
Specification 5. Standing convicted of two separate offenses for these criminal acts
does not exaggerate appellant’s criminality or unreasonably increase appellant’s
punitive exposure. Although Specification 3 encompasses a date of on or about 1
July 2014, this does not mandate merger with Specification 5 when: (1) the divers
occasions element in Specification 3 was established by appellant’s admission to
penetrating his step-daughter’s vulva with his finger on two separate occasions in
February 2014; (2) all parties agreed that Specification 3 encompassed only the two
dates in February 2014; and (3) the actus rei supporting the finding of guilty in
Specifications 3 and 5 were not the same. The law does not mandate a mega-
specification incorporating every separate date and/or different act when appellant’s
providence inquiry clearly establishes that Specifications 3 and 5 were separate
distinct criminal offenses encompassing separate dates and different acts.
CONCLUSION
The findings of guilty and sentence are AFFIRMED.
Senior Judge CAMPANELLA and Judge SALUSSOLIA concur.
FOR THE COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
4
