United States v. Private First Class PETER OSWALD ( 2015 )

                             TOZZI, CAMPANELLA, and CELTNIEKS
                                    Appellate Military Judges
                               UNITED STATES, Appellee
                           Private First Class PETER OSWALD
                              United States Army, Appellant
                                        ARMY 20130682
                          Headquarters, III Corps and Fort Hood
                             Gregory A. Gross, Military Judge
                       Colonel Stuart W. Risch, Staff Judge Advocate
    For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major M. Patrick
    Gordon, JA (on brief).
    For Appellee: Colonel Mark H. Sydenham, JA; Major A.G. Courie, III, JA;
    Major Steven J. Collins, JA; Captain Anne C. Hsieh, JA (on brief).
                                      13 October 2015
                                  SUMMARY DISPOSITION
    CAMPANELLA, Judge:
           A military judge, sitting as a special court-martial convicted appellant,
    contrary to his pleas, of one specification of sexual assault and one specification of
    abusive sexual contact, in violation of Article 120, Uniform Code of Military
    Justice, 10 U.S.C. §920 (2012) [hereinafter UCMJ]. The military judge sentenced
    appellant to a bad conduct discharge, six months confinement, forfeiture of
    $1,010.00 pay per month for six months, reduction to the grade of E-1. The
    convening authority approved the sentence as adjudged.
           This case is before us for review pursuant to Article 66, UCMJ. Appellant
    raises four assignments of error, one of which warrants discussion and relief. We
    find the issues raised by appellant pursuant to United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982) are meritless.
    OSWALD —ARMY 20130682
                                  LAW AND DISCUSSION
            The convening authority took action 474 days after the sentence was
    adjudged, with 31 days of delay attributable to the defense. The record in this case
    consists of two volumes, and the trial transcript is 282 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. 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 and
    unreasonable post-trial delay.”); see generally 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 government argues that appellant is not entitled to relief because the case
    itself did not present “unusual circumstances” or “post-trial errors.” Although the
    two lengthiest government delay periods are unexplained (265 days to transcribe the
    record of trial and 136 days to prepare and sign the Staff Judge Advocate
    Recommendation). Despite the government’s arguments, relief from this court is
    appropriate as the delay between announcement of sentence and action could
    “adversely affect the public’s perception of the fairness and integrity of military
    justice system . . . .” Ney, 68 M.J. at 617. As such, we provide relief in our decretal
           Upon consideration of the entire record, the findings of guilty are
    AFFIRMED. Given the dilatory post-trial processing, we affirm only so much of the
    sentence as extends to a bad-conduct discharge, confinement for four months,
    forfeiture of $1,010.00 pay per month for six months, 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 this decision, are ordered restored.
    See UCMJ arts. 58b(c), and 75(a).
          Senior Judge Tozzi and Judge Celtnieks concur.
                                            FOR THE
                                           FOR  THE COURT:
                                           MALCOLM H.    H. SQUIRES,
                                                             SQUIRES, JR.
                                           Clerk of
                                                  of Court

Document Info

DocketNumber: ARMY 20130682

Filed Date: 10/13/2015

Precedential Status: Non-Precedential

Modified Date: 10/14/2015