UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
KRIMBILL, BROOKHART, and ARGUELLES!
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Private E2 BRIAN C. HOTALING
United States Army, Appellant

ARMY 20190360

Headquarters, Fort Campbell
Matthew A. Calarco and Wendy P. Daknis, Military Judges
Colonel Andras M. Marton, Staff Judge Advocate (pretrial)
Colonel Laura J. Calese, Staff Judge Advocate (post-trial)

For Appellant: Colonel Michael C. Friess, JA; Lieutenant Colonel Angela D.
Swilley, JA; Captain Paul T. Shirk, JA (on brief); Colonel Michael C. Friess, JA;
Lieutenant Colonel Angela D. Swilley, JA; Major Christian E. DeLuke, JA; Captain
Paul T. Shirk, JA (on reply brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Dustin B. Myrie, JA; Major John D. Martorana, JA (on brief).

11 December 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
KRIMBILL, Chief Judge (IMA):

Appellant’s case is the latest in a troubling line of cases arising from Fort
Campbell fraught with unreasonable post-trial delay. Like its predecessors, this case
raises substantial questions as to the appropriateness of appellant’s sentence. After
considering the circumstances unique to this case, we find that a punitive discharge

 

' Chief Judge (IMA) Krimbill and Judge Arguelles both decided this case while on
active duty.
HOTALING—ARMY 20190360

is not an appropriate sentence for appellant. Accordingly, we set aside appellant’s
bad-conduct discharge, and affirm only so much of the sentence as provides for
confinement for thirty days and reduction to the grade of E-1.?

Appellant’s sole assignment of error concerns the dilatory post-trial
processing of his case. Appellant alleges that the government’s dilatory post-trial
processing, 350 days between sentencing and action, warrants relief under United
States v. Moreno, 

(C.A.A.F. 2006). We agree relief is warranted for the
flagrant disregard of timely post-trial processing in this case.

BACKGROUND

Appellant was a married twenty-four-year-old Soldier who served as a vehicle
mechanic. He and his wife had two children of their own and one child from a
previous relationship of appellant’s wife. All three children were under the age of
five years. The government charged appellant with three specifications of negligent
failure to create a safe environment for his children. Specifically, appellant pleaded
guilty to “failing to maintain sanitary living quarters” for his three minor children
over a period of twelve days. Appellant’s wife was present in the house for five of
the twelve days charged. After the neglect was discovered, appellant was ordered to
move into the barracks. Appellant ultimately spent approximately twenty-two
months living in the barracks while awaiting trial.

Appellant pleaded guilty to all three specifications alleging neglect. During
sentencing, appellant’s former First Sergeant, who viewed the condition of
appellant’s home at the time the neglect was discovered, offered strikingly favorable
testimony of appellant’s performance as a Soldier. Other members of appellant’s
command provided less favorable testimony. Appellant was ultimately sentenced to
a punitive discharge, confinement for thirty days, and reduction to the grade of E-1.

The military judge announced appellant’s sentence on 29 May 2019, and
authenticated the 417-page transcript 78 days later.? The Fort Campbell Staff Judge
Advocate (SJA) completed her recommendation (SJAR) on 17 October 2019, 141

 

2 A military judge sitting as a general court-martial convicted appellant,

consistent with his pleas, of three specifications of child endangerment, in violation
of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 [UCMJ]. The
convening authority approved the adjudged sentence of a bad-conduct discharge,
confinement for thirty days, and reduction to the grade of E-1.

3 Both of the military judges who presided over this case received the transcript on
31 July 2019 and authenticated it on 15 August 2019.
HOTALING—ARMY 20190360

days after the sentence was announced. Alarmingly, the government then failed to
serve the record of trial and the SJAR on appellant until 20 April 2020—186 days
after the SJA signed the SJAR. Essentially, it took the government over six months
to place a copy of the record of trial and SJAR in the mail. In the six months that
elapsed between signing the SJAR and serving it on appellant, appellant submitted
two separate requests for speedy post-trial processing.*

Appellant submitted his post-trial submissions ten days after receiving a copy
of the record of trial and SJAR, and supplemented those submissions four days later.
In both his initial and supplemental post-trial submissions, appellant confronted the
Fort Campbell Office of the Staff Judge Advocate (OSJA) with several of this
court’s recent opinions in which we provided relief to various appellants because of
the Fort Campbell OSJA’s inability to effectively and efficiently process cases after
a sentence was announced.

In the addendum to the SJAR, the SJA attempted to justify the delay by
identifying factors that ostensibly contributed to the post-trial delay in this case.
Those factors include multiple deployments impacting legal personnel and post-trial
oversight, an unprecedented increase in the volume and complexity of cases
(including capital litigation), several unforeseen personnel challenges (including the
unexpected resignation of the post-trial paralegal), and the COVID-19 pandemic.

In total, the Fort Campbell OSJA took 350 days (from 29 May 2019 to 13 May
2020) to process appellant’s case post-trial, nearly 200 days of which were spent
waiting to place documents in the mail.

DISCUSSION

This court has two distinct responsibilities in addressing post-trial delay. See
United States v. Simon, 

, 207 (C.A.A.F. 2006). First, as a matter of law,
this court reviews whether claims of excessive post-trial delay resulted in a due
process violation. See U.S. Const. amend. V; Diaz v. Judge Advocate General of the
Navy, 

, 38 (C.A.A.F. 2003). Second, even if we do not find a due process
violation, we may nonetheless grant an appellant relief for excessive post-trial delay
under our broad authority of determining sentence appropriateness under Article
66(d), UCMJ. See United States v. Tardif, 

, 225 (C.A.A.F. 2002).

 

* Appellant submitted his first request on 12 December 2019 (197 days after
announcement of the sentence), and his second request on 31 January 2020 (247 days
after announcement of the sentence).
HOTALING—ARMY 20190360

We review de novo whether an appellant has been denied his due process right
to a speedy post-trial review. 

. A presumption of
unreasonable post-trial delay exists when the convening authority fails to take action
within 120 days of completion of trial. 7d. at 142. In Moreno, our Superior Court
adopted the four-factor balancing test from Barker v. Wingo, 

, 530
(1972), which we employ when a presumption of unreasonable post-trial delay
exists, to determine whether the post-trial delay constitutes a due process violation:
“(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.” Jd. In
assessing the fourth factor of prejudice, we consider three sub-factors: “(1)
prevention of oppressive incarceration pending appeal; (2) minimization of anxiety
and concern of those convicted awaiting the outcome of their appeals; and (3)
limitation of the possibility that a convicted person’s grounds for appeal, and his or
her defenses in case of reversal and retrial, might be impaired.” Jd. at 138-39
(quoting Rheuark v. Shaw, 

, 303 n.8 (Sth Cir. 1980)).

1. Due Process

In this case, the first factor weighs heavily in favor of appellant; 350 days
from sentence announcement to action by the convening authority is presumptively
unreasonable, as it is nearly three times the authorized processing time.

Related to the second prong, in the post-trial processing memo, the SJA stated
that “[m]ultiple deployments . . . [an] increase in volume and complexity of cases. .
. unforeseen personnel challenges . . . [and] [f]rom 17 March 2020 to [13 May
2020], the COVID-19 pandemic” contributed to the post-trial delay in this case.
Simply put, none of the listed reasons for the delay provides a justification for the
inconceivable delay in this case. First, “personnel and administrative issues ... are
not legitimate reasons justifying otherwise unreasonable post-trial delay.” United
States v. Arriaga, 

, 57 (C.A.A.F. 2011) (citations omitted). Second, even
if the purported reasons for the delay somehow justified the government’s delay, it
still took over six months (186 days) for the OSJA to perform the purely ministerial
act of serving the SJAR and the record of trial on appellant. Depositing documents
in the mail does not require any specialized legal training, nor does it require any
significant time commitment. Third, while the COVID-19 pandemic could justify
some amount of delay, the pandemic had virtually no impact on this case. By the
SJA’s own concession, the pandemic did not impact the OSJA until 17 March 2020,
a time by which the government had already failed to simply mail the SJAR and
record of trial for over five months. In total, the second factor also weighs heavily
in favor of appellant.

The third factor likewise weighs in favor of appellant, as appellant submitted
two separate requests for speedy post-trial processing. Regarding the fourth factor,
appellant specifically acknowledges there was no prejudice in his case, nor do we
HOTALING—ARMY 20190360

identify any such prejudice based on our review of the record. As such, the fourth
factor weighs in favor of the government.

Absent a finding of prejudice, we may still find “a due process violation only
when, in balancing the other three [Moreno] factors, the delay is so egregious that
tolerating it would adversely affect the public’s perception of fairness and integrity
of the military justice system.” United States v. Toohey, 

, 362 (C.A.A.F.
2006). Here, after balancing the four Moreno factors we decline appellant’s
invitation to find a due process violation. However, this court’s analysis does not
end there.

2. Article 66, UCMJ

In finding the post-trial delay was unreasonable but not unconstitutional, we
turn to our “authority under Article 66[(d), UCMJ] to grant relief for excessive post-
trial delay without a showing of ‘actual prejudice’ within the meaning of Article
59(a).” 

(citing United States v. Collazo, 

, 727
(Army Ct. Crim. App. 2000)). Specifically, we next “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.”

totality of the record of trial, we are convinced that
appellant’s punitive discharge should not be approved. While military courts are
unquestionably authorized to provide such relief, see

, we are cognizant that we must “tailor an appropriate remedy [for the post-trial
delay] ... to the circumstances of the case.” United States v. Jones, 

, 86
(C.A.A.F. 2005) (quoting 

). In arriving at such an extreme and
drastic remedy, we find the combination of four circumstances, unique to this case,
warrant setting aside appellant’s punitive discharge.

First, it is important to consider at what point during the post-trial process the
unreasonable delay occurred. Here, the most unreasonable portion of the delay
occurred between the SJA signing the SJAR and service of the SJAR and record of
trial on appellant. Once the SJAR was signed, the very next step in the post-trial
processing was the service on appellant and his defense counsel. As noted in the
Barker analysis above, service of the documents is ministerial and in all likelihood
only required the OSJA to walk the documents to the mailroom. Despite the relative
ease of completing this step, the OSJA failed to serve appellant with the SJAR and
record of trial for over six months (186 days), which itself far exceeds the total
permissible post-trial processing timeline.

Second, and somewhat intertwined with the first circumstance, is why the
unreasonable delay occurred. We addressed this fully above in our analysis of the
second Barker factor. It bears repeating, however, that the OSJA failed to provide
HOTALING—ARMY 20190360

even a plausible justification for the unreasonable delay. No amount of personnel
shortage could necessitate a six-month delay in putting a 471-page record of trial
and a one-page SJAR in the mail. Such a delay is simply unjustifiable.

Third, the SJA’s recommendation to the convening authority in her addendum
to the SJAR is particularly troubling. Therein, the SJA acknowledged that, at that
time, this court had recently castigated Fort Campbell’s post-trial processing in at
least three separate opinions.° The SJA also “agree[d] that the delay in providing a
copy of the Record of Trial to [appellant] prejudice[d] his rights in the post-trial
process.”° Despite knowing that this court was providing remedies for Fort
Campbell’s repeated dilatory post-trial processing, and despite the apparent belief
that appellant was prejudiced by the same dilatory post-trial processing, the SJA
recommended that no clemency was warranted in this case.’ Essentially, the SJA
made a recommendation that she disagreed with this court about the import of and
relief for unreasonable post-trial delay.

Finally, the persistent post-trial processing delays arising out of the Fort
Campbell OSJA also factor into our analysis. The sluggish post-trial processing in
this case is yet another example of Fort Campbell’s seeming inability to fulfill its
legal obligations with respect to post-trial processing of courts-martial. Within just
the past year, this court has cited dilatory post-trial processing at Fort Campbell in
eight cases;® this case marks the ninth such finding. Despite our repeated

 

> We note appellant’s trial defense counsel highlighted this court’s concern with Fort
Campbell’s post-trial processing in appellant’s post-trial submissions to the
convening authority.

® As noted above, we disagree that appellant suffered any actual prejudice as a result
of the delay.

7 The convening authority’s clemency powers were limited by Article 60, UCMI.
However, appellant specifically requested a recommendation from the convening
authority to this court concerning appropriate clemency in this case.

8 United States v. Badgett, ARMY 20190177, 2020 CCA LEXIS 403, at *6 (Army Ct.
Crim. App. 4 Nov. 2020 (summ. disp.) (post-trial processing delay of 343 days
warranted sentence credit); United States v. Hickey, ARMY 20190072 (Army Ct.
Crim. App. 7 Oct. 2020) (decision) (dilatory post-trial processing warranted a two-
month reduction in sentence); United States v. Barchers, ARMY 20180648 (Army
Ct. Crim. App. 30 Sep. 2020) (decision) (granting sentence relief for 129-day lapse
between appellant’s post-trial submission and convening authority action); United
States v. Feeney-Clark, ARMY 20180694, 2020 CCA LEXIS 256, at *7 (Army Ct.

(continued . . .)
HOTALING—ARMY 20190360

repudiation of Fort Campbell’s post-trial processing performance, the problem
persists. We yet again remind military justice practitioners that “[i]ncidents of poor
administration reflect adversely on the United States Army and the military justice
system.” United States v. Carroll, 

, 557 n.8 (A.C.M.R. 1994). The time
is now to improve post-trial processing at Fort Campbell.

Having considered the entire record, especially the four circumstances listed
above, and exercising our authority under Article. 66, UCMJ, we find appellant is
entitled to relief for the dilatory post-trial processing of his case. Appellant’s
punitive discharge “should [not] be approved” under the unique facts and
circumstances of this case.? See UCMJ art. 66(d).

 

(. . . continued)

Crim. App. 29 Jul. 2020) (mem. op.) (finding post-trial delay of 303 days
unreasonable, but unable to provide meaningful sentence credit); United States v.
Diaz, ARMY 20180556, 2020 CCA LEXIS 154, at *7 (Army Ct. Crim. App. 11 May
2020) (summ. disp.) (post-trial processing delay of 303 days warranted sentence
credit); United States v. Notter, ARMY 20180503, 2020 CCA LEXIS 150, at *6
(Army Ct. Crim. App. 4 May 2020) (summ. disp.) (post-trial processing delay of 337
days warranted sentence credit); States v. Ponder, ARMY 20180515, 2020 CCA
LEXIS at 38, at *3 (Army Ct. Crim. App. 10 Feb. 2020) (summ. disp.) (post-trial
processing delay of 296 days warranted sentence credit); and United States v.
Kizzee, ARMY 20180241, 2019 CCA LEXIS 508, at *7 (Army Ct. Crim. App. 12
Dec. 2019) (summ. disp.) (post-trial processing delay of 274 days warranted
sentence credit).

? We note that in Feeney-Clark, another panel of this court elected not to set aside
the punitive discharge, finding the punitive discharge in that case “to be appropriate
when considering” the circumstances of that case. ARMY 20180694, 2020 CCA
LEXIS 256, at *5-6 n.5. Our decision in this case in no way conflicts with the
decision in Feeney-Clark. Instead, we are merely convinced that appellant’s
punitive discharge is not appropriate given the unique facts and circumstances of
this case. We further reject the Government’s contention that Feeney-Clark stands
for the proposition that our setting aside the punitive discharge in this case amounts
to clemency. Cf United States v. Hobbs, 

, 1097 (N.M.C.M.R. 1989)
(“[T]o provide relief for the inordinately long and prejudicial post-trial delay, we
find the appropriate remedy under the circumstances is disapproval of the bad-
conduct discharge.”).
HOTALING—ARMY 20190360
CONCLUSION

The findings of guilty are AFFIRMED. Appellant’s bad-conduct discharge is
SET ASIDE. Only so much of the sentence as provides for confinement for thirty
days and reduction to the grade of E-1 is AFFIRMED. 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).

Senior Judge BROOKHART and Judge ARGUELLES concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court