United States v. Private First Class SEAN T. HUNT ( 2014 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
GLANVILLE 1, LIND, and KRAUSS
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class SEAN T. HUNT
United States Army, Appellant
ARMY 20120363
Headquarters, III Corps and Fort Hood
Kirsten Brunson, Military Judge
Colonel Stuart W. Risch, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Lieutenant Colonel Jonathan F. Potter,
JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Steve T. Nam, JA (on brief).
29 January 2014
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SUMMARY DISPOSITION
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KRAUSS, Judge:
A military judge sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of three specifications of assault consummated by a battery
and one specification of aggravated assault in violation of Article 128 Uniform Code
of Military Justice, 10 U.S.C. § 928 [hereinafter UCMJ]. The convening authority
approved the adjudged sentence of a bad-conduct discharge, confinement for thirty-
six months, total forfeiture of all pay and allowance s, and reduction to the grade of
E-1.
1
Chief Judge GLANVILLE took final action on this case while on active duty.
HUNT — ARMY 20120363
This case is before the court for review under Article 66, UCMJ. Appellant
assigns two errors, one of which warrants brief remark. Though we do not find any
actual prejudice to the appellant, we agree that the e xcessive post-trial delay in the
processing of this case warrants relief.
The record and appellate filings establish that the processing time attributable
to the government is 231 days from sentence to action and 31 days from action to
receipt at this court. This amounts to 111 days beyond the point where we presume
unreasonable delay in post-trial processing at action and one day more than is
expected for receipt of the record by this court . United States v. Moreno, 63 M.J.
129, 142 (C.A.A.F. 2006). Though we find no prejudice as a result of the excessive
delay, or due process violation because of egregious delay, the court must still
review the appropriateness of the sentence in light of unjustified dilatory post-trial
processing. UCMJ art. 66(c). See generally United States v. Toohey, 63 M.J. 353,
362-63 (C.A.A.F. 2006); Moreno, 63 M.J. at 143; United States v. Tardif, 57 M.J.
219, 223-24 (C.A.A.F. 2002); United States v. Ney, 68 M.J. 613, 616–17 (Army Ct.
Crim. App. 2010).
Here appellant complained of excessive post-trial delay in his Rule for
Courts-Martial 1105 submissions. The staff judge advocate addressed this complaint
in the addendum to his original recommendation , but offered no explanation for the
delay. None of the delay in this case can be fairly attributed to the defense. The
record of trial is only 134 pages and the case involves charges and mat ters of no
great complication. At the time relevant to this case, it had been fully six years
since our superior court’s decision in Moreno. However, as then, jurisdictions
persistently fail to contemporaneously provide the explanation for post-trial delay
necessary to properly administer our system of justice and meet the appropria te
demand for transparency, vigilance and accountability expected . Documented
reasons for delay should be made part of the record and available for review, at all
relevant times, including convening authority action. See United States v. Canchalo,
64 M.J. 245 (C.A.A.F. 2007); United States v. Arias, 72 M.J. 501 (Army Ct. Crim.
App. 2013); United States v. Bauerbach, 55 M.J. 501 (Army Ct. Crim. App. 2001).
The explanation provided by the government (eighteen months after action in this
case) does not sufficiently justify the deficiencies in post-trial processing under the
circumstances. It is essentially a chronology without explanation of delay beyond
the acknowledged fact that this jurisdiction is busy and its resources taxed. 2 In light
2
For example, there is no explanation for the fourteen days taken to deliver the
completed transcript to counsel for errata review; there is no explanation for the
twelve days taken to deliver the authenticated record to the III Corps Criminal La w
Office for further processing; there is no explanation for the sixteen days from
receipt of the record to completion of the staf f judge advocate recommendation;
(continued . . .)
2
HUNT — ARMY 20120363
of the above, and despite the seriousness of the offenses , relief is warranted. See
United States v. Harvey, 64 M.J. 13, 23 (C.A.A.F. 2006); Moreno, 63 M.J. at 136-
38; Tardif, 57 M.J. at 224.
The findings of guilty are AFFIRMED. After considering the entire record,
the court affirms only so much of the sentence as provides for a bad-conduct
discharge, confinement for thirty-five months, total forfeiture of all 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 his sentence set aside
by the decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of
Clerk of Court
Court
( . . . continued)
there is no explanation for the eighteen days between receipt of the appellant’s post
trial matters and completion of the addendum and action; and there is no explanation
for the thirty-one days it took before receipt of the record by this court. It may very
well be that eighteen months after the fact it is impossible to accurately recall the
reasons for delay, if any. The purpos e of documenting reasons at the time is to
encourage the exercise of institutional vigilance. It also ensures timely provision of
explanation that will encourage accountability at the time and better assist staff
judge advocates, convening authorities, an d this court in resolving the matter under
Moreno and under Article 66, UCMJ. See Moreno, 63 M.J. at 143.
3