United States v. Specialist JEFFREY I. HINZMAN ( 2013 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    YOB, LIND, and KRAUSS
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Specialist JEFFERY I. HINZMAN
    United States Army, Appellant
    ARMY 20120441
    Headquarters, Fort Bliss
    David H. Robertson and Karen W. Riddle, Military Judges
    Colonel Francis P. King, Staff Judge Advocate (pretrial)
    Colonel Edward K. Lawson, IV, Staff Judge Advocate (post-trial)
    For Appellant: Major Jacob D. Bashore, JA; Captain Susrut A. Carpenter, 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).
    16 December 2013
    ----------------------------------
    SUMMARY DISPOSITION
    ----------------------------------
    KRAUSS, Judge:
    A military judge sitting as a special court-martial convicted appellant,
    pursuant to his pleas, of one specification of conspiracy to commit larceny of
    military property, one specification of false official statement, three specifications
    of larceny of military property, and one specification of housebreaking in violation
    of Articles 81, 107, 121, and 130, Uniform Code of Military Justice, 
    10 U.S.C. §§ 881
    , 907, 921, and 930 (2006) [hereinafter UCMJ]. The convening authority
    approved the adjudged sentence of a bad-conduct discharge, confinement for
    360 days, and reduction to the grade of E-1, and credited appellant with 6 days of
    confinement against the sentence to confinement.
    This case is before the court for review under Article 66, UCMJ. Appellant
    assigns as error excessive post-trial delay in the processing of his case. He also
    raises matters pursuant to United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982).
    HINZMAN — ARMY 20120441
    Though we do not find any actual prejudice to the appellant, we agree that the
    excessive post-trial delay in the processing of this case warrants relief.
    The parties agree that the processing time attributable to the government is
    286 days from sentence to action. This amounts to 166 days beyond the point where
    we presume unreasonable delay in post -trial processing. United States v. Moreno,
    
    63 M.J. 129
    , 142-43 (C.A.A.F. 2006) (recognizing a presumption of unreasonable
    delay after 120 days of post-trial delay in processing a case). Though we find no
    prejudice as a result of the excessive delay, t he court must still review the
    appropriateness of the sentence in light of 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); Moreno, 63 M.J. at 143; United States v. Ney, 
    68 M.J. 613
    , 616-17 (Army Ct.
    Crim. App. 2010).
    Here, appellant demanded speedy post-trial processing in a memorandum
    addressed to the Staff Judge Advocate 109 days after appellant’s sentence was
    imposed. Appellant again complained of excessive post-trial delay in his post-trial
    matters submitted 294 days after the sentence was imposed. Though the staff judge
    advocate addressed this complaint in the addendum to his original recommendation
    and the convening authority took action within 3 days of appellant’s post-trial
    submissions, no explanation for the delay, * either at the time or before this court,
    was ever provided, and no clemency was granted by the convening authority. In
    addition, appellant’s request for deferment of his reduction in rank and automatic
    forfeitures was disapproved. Under these circumstances, given the 109-page record
    of trial involving charges of no great complication, we find it appropriate to set
    aside 30 days of appellant’s sentence to confinement . See United States v. Harvey,
    
    64 M.J. 13
    , 23 (C.A.A.F. 2006); Tardif, 57 M.J. at 224.
    The findings of guilty are AFFIRMED. After consideration of the entire
    record, including those matters personally raised by appellant pursuant to Grostefon,
    the court affirms only so much of the sentence as provides for a bad-conduct
    discharge, confinement for 330 days, 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 this decision, are ordered restored. See UCMJ
    arts. 58b(c) and 75(a).
    *
    Included in the record, as an attachment to the authentication page, is the military
    judge’s explanation for the passage of 22 days from her receipt of the record to the
    date she completed authentication.
    2
    HINZMAN — ARMY 20120441
    Senior Judge YOB and Judge LIND concur.
    FOR THE COURT:
    MALCOLM H. SQUIRES, JR.
    Clerk of Court
    3
    

Document Info

Docket Number: ARMY 20120441

Filed Date: 12/16/2013

Precedential Status: Non-Precedential

Modified Date: 4/18/2021