Filed: Sep. 30, 2015
Latest Update: Mar. 02, 2020
Summary: Sentence adjudged 6 November 2013 by GCM convened at Holloman Air, Force Base, New Mexico. Conversely, given Appellants brief to this court was his first, assertion of untimely post-trial processing, the third factor cuts slightly against, Appellant.
UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Airman First Class DYLAN T. BJUGSTAD
United States Air Force
ACM 38630
30 September 2015
Sentence adjudged 6 November 2013 by GCM convened at Holloman Air
Force Base, New Mexico. Military Judge: Grant L. Kratz (arraignment)
Lynn Watkins (sitting alone).
Approved Sentence: Dishonorable discharge, confinement for 2 years, and
reduction to E-1.
Appellate Counsel for the Appellant: Major Thomas A. Smith.
Appellate Counsel for the United States: Captain Richard J. Schrider and
Gerald R. Bruce, Esquire.
Before
MITCHELL, HECKER, and DUBRISKE
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
DUBRISKE, Judge:
A military judge sitting alone as a general court-martial convicted Appellant,
according to his plea, of one specification of possessing child pornography in violation of
Article 134, UCMJ, 10 U.S.C. § 934.1 The judge sentenced Appellant to a dishonorable
1
Appellant pled not guilty to an additional charge and specification alleging distribution of child pornography
through his use of peer-to-peer software. After hearing evidence, the military judge found Appellant not guilty of
this offense.
discharge, two years of confinement, and reduction to E-1. The convening authority
approved the sentence as adjudged.2
Appellant, through counsel, alleges two assignments of error pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). He contends trial counsel made an
inappropriate sentencing argument by using Appellant’s sex offender registration as
justification for a dishonorable discharge. Additionally, Appellant argues this court
should set aside his dishonorable discharge due to post-trial processing delays on the part
of the Government.
For the reasons discussed in more detail below, we grant Appellant limited
sentencing relief for excessive post-trial processing delays in this case.
Trial Counsel’s Sentencing Argument
Appellant first alleges trial counsel erred during sentencing when he made the
following argument to the military judge as he was discussing the appropriateness of a
punitive discharge:
As [Appellant] said in his own unsworn, he is going to be a
registered sex offender. We do not keep registered sex
offenders in the United States Air Force. What we do with
registered sex offenders, someone who is guilty of possessing
the horrible images that he had on his computer . . . we kick
them out of the Air Force with a dishonorable discharge.
Appellant’s defense team raised no objection to this portion of trial counsel’s argument.
Whether argument is improper is a question of law we review de novo. United
States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (citing United States v. Pope,
69 M.J.
328, 334 (C.A.A.F. 2011)). In applying the law to the facts of a case, however, trial
counsel’s comments must be examined in context of the entire court-martial. United
States v. Carter,
61 M.J. 30, 33 (C.A.A.F. 2005). The failure of trial defense counsel to
object to argument constitutes forfeiture of the issue on appeal absent plain error. See
R.C.M. 919(c); United States v. Erickson,
65 M.J. 221, 223 (C.A.A.F. 2007). To
establish plain error, Appellant must prove: (1) there was an error; (2) it was plain or
obvious; and (3) the error materially prejudiced a substantial right.
Marsh, 70 M.J. at 104
(quoting
Erickson, 65 M.J. at 223).
2
Pursuant to Appellant’s request, the convening authority did defer and waive forfeitures for the maximum benefit
of Appellant’s spouse.
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Sex offender registration remains a collateral consequence to a conviction and
therefore operates independently from the sentence adjudged at a court-martial. United
States v. Talkington, 73 M.J. 212, 216–17 (C.A.A.F. 2014). Thus, in referencing this
collateral consequence while discussing the need for a punitive discharge, trial counsel
opened his argument to appellate scrutiny.
In this case, however, we need not address whether error existed as we are
convinced the sentencing argument did not materially prejudice a substantial right of
Appellant. Appellant was sentenced by a military judge alone, and we presume the
military judge recognized the collateral nature of sex offender registration. See Erickson,
65 M.J. at 225 (presuming that a military judge is able to distinguish between proper and
improper sentencing argument). Moreover, given the serious nature of Appellant’s
misconduct and the fact that his adjudged sentence is not inappropriately severe, we are
confident Appellant was sentenced on the basis of the evidence alone and that trial
counsel’s argument did not impact the military judge’s imposition of a sentence in this
case. See United States v. Halpin,
71 M.J. 477, 480 (C.A.A.F. 2013).
Post-Trial Processing Delays
Appellant also argues the 234-day period between the conclusion of trial and the
convening authority’s action warrants this court disapproving his dishonorable discharge.
Under United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), there is a presumption
of unreasonable delay when the convening authority does not take action within 120 days
of the conclusion of the trial. In requesting relief, Appellant argues he suffered
particularized anxiety based on the fact he could have been released from confinement
and required to register as a sex offender before the convening authority took action in
his case.
We review de novo an appellant’s claim that he has been denied the due process
right to a speedy post-trial review and appeal. Id. at 135. Because the 234-day delay in
this case is facially unreasonable under Moreno, we examine the claim under the four
factors set forth in Barker v. Wingo,
407 U.S. 514, 530 (1972): “(1) the length of the
delay; (2) the reasons for the delay; (3) Appellant’s assertion of the right to timely review
and appeal; and (4) prejudice.”
Moreno, 63 M.J. at 135.
In balancing the Barker factors, the length of delay and reasons for delay weigh in
favor of Appellant. Conversely, given Appellant’s brief to this court was his first
assertion of untimely post-trial processing, the third factor cuts “slightly” against
Appellant. See United States v. Arriaga, 70 M.J. 51, 57 (C.A.A.F. 2014).
The fourth factor—prejudice—weighs heavily against Appellant. Moreno
identified three types of prejudice arising from post-trial processing delay: (1) oppressive
incarceration, (2) anxiety and concern, and (3) impairment of ability to present a defense
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at a rehearing. Moreno, 63 M.J. at 138–39. None are present in this case. Given the
court’s ruling on the substantive claim of error above, Appellant cannot establish he
suffered oppressive incarceration pending appeal. See
id. at 139. Furthermore, while
Appellant alleges he suffered “particularized anxiety” while waiting for the convening
authority to take action, he cannot show he was prejudiced by the delay as he is still
subject to sex offender registration after this appeal. See
Arriaga, 70 M.J. at 58.
In cases where there is no finding of prejudice, appellate courts will only find a
due process violation when, in balancing the other three Barker factors, the delay is so
egregious that tolerating it would adversely affect the public’s perception of the fairness
and integrity of the military justice system. Id. at 56 (citing United States v. Toohey,
63
M.J. 353, 362 (C.A.A.F. 2006)). Having considered the totality of the circumstances and
the entire record, we find the post-trial delay in this case is not so egregious as to
adversely affect the public’s perception of fairness and integrity of the military justice
system. We are also convinced that any error in this case is harmless beyond a
reasonable doubt.
A finding of harmless error does not end the inquiry, as we may grant sentence
relief under Article 66(c), UCMJ, 10 U.S.C. § 866(c), even when we find no prejudice in
unreasonable post-trial delays. United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002).
However, “[a]ppellate relief under Article 66(c) should be viewed as the last recourse to
vindicate, where appropriate, an appellant’s right to timely . . . review.”
Id. at 225.
In United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), we
identified a list of factors to consider in evaluating whether Article 66(c), UCMJ, relief
should be granted for excessive post-trial delay when there is no showing of prejudice.
Those factors include how long the delay exceeded appellate review standards, the
reasons noted by the government for the delay, whether the government acted with bad
faith or gross indifference, evidence of institutional neglect, harm to Appellant or the
institution, the goals of justice and good order and discipline, and, finally, whether the
court can provide any meaningful relief given the passage of time.
Id. No single factor is
dispositive and we may consider other factors as appropriate.
Id.
In Gay, we granted relief when the convening authority took action 141 days after
sentence was announced and docketing with this court was 112 days after action. In this
case, sentencing occurred on 6 November 2013, and action was completed on 28 June
2014—234 days later. The Government seeks to justify the delay by reasoning: (1) the
Army court reporter who was detailed to the court-martial was presumptively busy and
(2) the Army court reporter prepared the record of trial in a manner different than Air
Force practice.
As it appears from the record of trial that a contracted, presumably civilian, court
reporter actually completed the trial transcript, we find no fault with our sister service
4 ACM 38630
court reporter’s handling of the case. Once the court closed on 6 November 2013, and
the trial recording was provided to the base legal office, it appears the Army court
reporter did not have any other involvement with the case until she received the
transcribed record in mid-March 2014. She signed the attestation on 21 March 2014, and
the military judge certified the accuracy of the transcript only two days later.
We do, however, find some fault in the Government’s inability to comply with
established post-trial processing deadlines in this case. The record is silent as to why the
contracted court reporter took so long to transcribe a relatively simple 205-page record of
trial. Similarly, and of more concern, there is no justification for the 68 days that passed
between authentication and the preparation of a brief Staff Judge Advocate’s
Recommendation. See Tardif, at 225 (“[C]ounsel at the trial level are well-situated to
protect the interest of their clients by addressing post-trial delays before action by the
convening authority.”); Moreno, 63 M.J. at 143 (noting justifiable, case-specific reasons
for delays should be documented and made part of the record, to be available for review);
see also United States v. Canchola,
64 M.J. 245, 247 (C.A.A.F. 2007) (per curiam).
This lack of explanation for the delay, when coupled with its excessive length,
weighs heavily in favor of Appellant. Based on our review of the entire record, we
conclude sentence relief under Article 66, UCMJ, is warranted and that setting aside the
portion of the sentence reducing Appellant from Airman to Airman Basic is an
appropriate remedy in this case. We, therefore, affirm a sentence to a dishonorable
discharge, two years confinement, and reduction to Airman (E-2).
Conclusion
The approved findings and sentence, as modified, are correct in law and fact, and
no error materially prejudicial to the substantial rights of Appellant occurred.3 Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the
sentence, as modified, are AFFIRMED.
FOR THE COURT
STEVEN LUCAS
Clerk of the Court
3
The court notes the Staff Judge Advocate’s Recommendation and its Addendum failed to discuss the military
judge’s clemency recommendation regarding waiver of automatic forfeitures. As defense counsel highlighted the
judge’s recommendation in a post-trial submission to the convening authority, and the convening authority
eventually waived automatic forfeitures to the maximum extent possible, we direct no corrective action on this issue
as Appellant suffered no material prejudice.
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