United States v. Private E1 CHE D. MIDDLETON ( 2015 )

                             TOZZI, CAMPANELLA, and CELTNIEKS
                                    Appellate Military Judges
                                UNITED STATES, Appellee
                             Private E1 CHE D. MIDDLETON
                              United States Army, Appellant
                                       ARMY 20121121
                           Headquarters, III Corps and Fort Hood
                              Gregory A. Gross, Military Judge
                   Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)
                  Colonel Tania M. Martin, Staff Judge Advocate (post-trial)
    For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major M. Patrick
    Gordon, JA; Captain J. David Hammond, JA (on brief).
    For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie, III, JA; Major
    John K. Choike, JA; Captain Scott L. Goble, JA (on brief).
                                       30 April 2015
                                 SUMMARY DISPOSITION
    Per Curiam:
           A military judge sitting as a general court -martial convicted appellant,
    pursuant to his pleas, of one specification of conspiracy to commit robbery, one
    specification of reckless driving resulting in perso nal injury, two specifications
    of robbery, one specification of forcible sodomy, and one specification of
    kidnapping, in violation of Articles 81, 111, 122, 125, and 134, Uniform Code of
    Military Justice, 10 U.S.C. § 881, 911, 922, 925, 934 (2006) [hereina fter
    UCMJ]. Contrary to appellant’s pleas, the military judge convicted appellant of
    one novel specification of jumping from a vehicle that was fleeing from the
    police and running away from the police as they were chasing him resulting in
    the police having to use a taser to subdue him more than one time, in violation
    of Article 134, UCMJ. The military judge sentenced appellant to a dishonorable
    discharge, confinement for forty-two years, and forfeiture of all pay and
    MIDDLETON—ARMY 20121121
    allowances. The convening authority approved twenty years of confinement and
    the remainder of the sentence.
            This case is before us for review pursuant to Article 66, UCMJ.
    Appellant raises one assignment of error, which requires discussion and relief.
    Specifically, appellant requests appropriate relief to remedy the dilatory post -
    trial processing in his case. We agree that relief is appropriate. We also find
    the matters raised personally by appellant pursuant to United States v.
    12 M.J. 431
     (C.M.A. 1982) are without merit.
            The convening authority took action 567 days after the sentence was
    adjudged. The record in this case consists of two volumes and the trial
    transcript is 217 pages. Although we find no due process violation in the post -
    trial processing of appellant’s case, we must still review the appropriateness of
    the sentence in light of the unjustified dilatory post -trial processing. See UCMJ
    art. 66(c); United States v. Tardif, 
    57 M.J. 219
    , 224 (C.A.A.F. 2002) (“[Pursuant
    to Article 66(c), UCMJ, service courts are] required to determine what findings
    and sentence ‘should be approved,’ based on all the facts and circumstances
    reflected in the record, including the unexplained an d unreasonable post-trial
    delay.”); see also United States v. Toohey, 
    63 M.J. 353
    , 362-63 (C.A.A.F. 2006);
    United States v. Ney, 
    68 M.J. 613
    , 617 (Army Ct. Crim. App. 2010); United
    States v. Collazo, 
    53 M.J. 721
    , 727 (Army Ct. Crim. App. 2000).
           The staff judge advocate signed the recommendation 218 days after the
    military judge authenticated the record . Appellant raised the issue of dilatory
    post-trial processing in his clemency submission. The staff judge advocate
    acknowledged but did not explain the delay to the convening authority. While
    the government has since explained the reasons for delay, 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.
    63 M.J. 129
    , 143 (C.A.A.F. 2006) (“We expect convening
    authorities, reviewing authorities and the Courts of Criminal Appeals to
    document reasons for delay and to exercise t he institutional vigilance that was
    absent in Moreno's case.”); see also 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. 20 01).
           We find the reasons offered by the government are unreasonable under
    the totality of circumstances.
         Upon consideration of the entire record, the findings of guilty are
    AFFIRMED. Given the dilatory post-trial processing, however, we affirm
    MIDDLETON—ARMY 20121121
    only so much of the sentence as extends to a dishonorable discharge,
    confinement for nineteen years and eleven months, and forfeiture of all pay
    and allowances. All rights, privileges, and property, of which appellant has
    been deprived by virtue of this decision setting aside portions of the findings
    and sentence, are ordered restored.
                                             FOR THE
                                                 THE COURT:
                                            MALCOLM H.
                                            MALCOLM       H. SQUIRES,
                                                              SQUIRES, JR.
                                            Clerk of
                                            Clerk  of Court

Document Info

DocketNumber: ARMY 20121121

Filed Date: 4/30/2015

Precedential Status: Non-Precedential

Modified Date: 5/6/2015