United States v. Bodkins , 60 M.J. 322 ( 2004 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Michael E. BODKINS, Private (E-2)
U.S. Army, Appellant
No. 04-0252
Crim. App. No. 20010107
United States Court of Appeals for the Armed Forces
Argued October 12, 2004
Decided November 4, 2004
Counsel
For Appellant: Captain Amy S. Fitzgibbons (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, Major
Allyson G. Lambert and Captain Terri J. Erisman (on brief).
For Appellee: Captain Magdalena A. Przytulska (argued); Colonel
Steven T. Salata, Lieutenant Colonel Margaret B. Baines and
Major Theresa A. Gallagher (on brief).
Military Judge: Donna L. Wilkins
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Bodkins, No. 04-0252/AR
PER CURIAM:
At a special court-martial composed of a military judge
sitting alone, Appellant was convicted, pursuant to his pleas,
of two periods of unauthorized absence, in violation of Article
86, Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C. § 886. He was sentenced to a bad-conduct discharge,
confinement for two months, forfeiture of $695 pay per month for
two months, and reduction to E-1. The convening authority
approved the sentence as adjudged, and the Army Court of
Criminal Appeals affirmed in a published opinion. 59 M.J. 634(A. Ct. Crim. App. 2003).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS
ABDICATED ITS ARTICLE 66(C) RESPONSIBILITY
WHEN IT FOUND THAT THE POST-TRIAL PROCESSING
OF APPELLANT’S CASE WAS UNREASONABLE,
UNEXPLAINED, AND DILATORY, BUT REFUSED TO
CONSIDER THIS ERROR IN ANALYZING THE
APPROPRIATENESS OF APPELLANT’S SENTENCE
BECAUSE IT RULED THAT THE ERROR WAS WAIVED.
I. BACKGROUND
As noted by the Court of Criminal Appeals, Appellant pled
guilty and was sentenced in a court-martial that resulted in a
short, seventy-four page record. 59 M.J. at 634-35. The court-
martial proceedings did not produce any legal or factual issues.
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Id. at 635. No issues of significance were raised by the staff
judge advocate or the defense for consideration by the convening
authority. Id. Despite the apparently routine nature of the
trial proceedings, the post-trial proceedings were marked by
substantial delay. A total of 412 days elapsed from the date
the court-martial adjudged the sentence to the date of the
convening authority’s action on the sentence.
In the course of determining whether the findings and
sentence should be approved under Article 66(c), UCMJ, 10 U.S.C.
§ 866(c), the lower court considered whether relief was
warranted as a result of post-trial delay. See 59 M.J. 635-36
(citing United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002);
United States v. Collazo, 53 M.J. 721 (A. Ct. Crim. App. 2000)).
The court stated:
Despite unreasonable, unexplained, and
dilatory post-trial processing, we conclude
that relief is waived. Trial defense
counsel did not request speedy post-trial
processing. Neither trial nor appellate
defense counsel sought any reduction in
appellant’s sentence as a result of the slow
post-trial processing. Trial defense
counsel must make a timely request for
speedy post-trial processing, if that is
what appellant desires.
Id. at 634 (footnotes omitted). The court also noted that
Appellant did not request expeditious post-trial processing, and
suggested possible reasons for not making such a request:
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A possible tactical reason for appellant and
his counsel not to ask for expeditious post-
trial processing, thereby hastening the
execution of appellant’s discharge, is the
continuing availability of military
benefits. . . . Although appellant was not
entitled to pay and allowances while on
excess leave, he and his family, if any,
were entitled to other important benefits.
He and his family presumably retained their
military identification cards and were
entitled to medical, commissary, and post-
exchange benefits to the same degree as
other active duty soldiers and family
members, up to the point of appellant’s
discharge. . . . Furthermore, appellant may
have had other compelling personal reasons
for not wanting expeditious execution of his
discharge; this court will not speculate
about these reasons, if any.
Id. at 637 (citations and footnote omitted).
II. DISCUSSION
The requirement to take post-trial action on the results of
a court-martial is vested in a military commander, the convening
authority, who performs this function with the assistance of his
or her staff judge advocate. Article 60, UCMJ, 10 U.S.C. § 860.
The responsibility of the convening authority to complete post-
trial processing in a timely fashion is not dependent upon a
request to do so from the accused.
A Court of Criminal Appeals must review the record in each
case referred to it and “may affirm only such findings of guilty
and the sentence or such part or amount of the sentence as it
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finds correct in law and fact and determines, on the basis of
the entire record, should be approved.” Article 66(c), UCMJ, 10
U.S.C. § 866(c). In performing its affirmative obligation to
consider sentence appropriateness, the court must take into
account “all the facts and circumstances reflected in the
record, including [any] unexplained and unreasonable post-trial
delay.” Tardif, 57 M.J. at 224.
In the present case, the court below described the post-
trial processing of this case as “unreasonable, unexplained, and
dilatory.” 59 M.J. at 634. Under these circumstances, the
court erred in asserting that the defense was required to ask
for timely processing, and that failure to do so waived any
right to relief.
Under Tardif, the Courts of Criminal Appeals have broad
discretion to grant or deny relief for unreasonable or
unexplained delay, and a finding of specific prejudice is not
required. 57 M.J. at 224. The court has discretion to take
into account the impact -- or lack thereof -- of any delay on
the accused. See id. at 225 (noting the authority of the Courts
of Criminal Appeals “to tailor an appropriate remedy, if any is
warranted, to the circumstances of the case”). In so doing, the
court may consider the absence of a defense request for action
as one factor among other considerations in assessing the impact
of delay in a particular case, but it may not elevate that
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factor into the conclusive basis for denying relief by using the
mere absence of a request to find waiver. Cf. United States v.
Toohey, 60 M.J. 100, 102-03 (C.A.A.F. 2004) (discussing factors
that may be considered by the Courts of Criminal Appeals in
exercising their unique powers under Article 66). See also
Article 61(a), 10 U.S.C. § 861(a) (review of the findings and
sentence by the Court of Criminal Appeals may be waived only if
an express waiver is filed with the convening authority by the
accused after trial).
The court also may rely upon continuing eligibility for
limited military benefits as a factor in assessing the impact of
post-trial delay, but it must do so in a manner that focuses on
the circumstances of the particular case. Because post-trial
processing entails continuing eligibility for benefits in all
cases, it is not appropriate to rely on the availability of
benefits as a basis for denying relief in a particular case
without relating it to the circumstances of the accused in that
case. In that regard, we note that the court below speculated
as to the possible interest of the accused and his family in
continued benefits, 59 M.J. at 637, but the record indicates
that the accused did not have any dependents.
Under these circumstances, we cannot be confident that the
court below took into account “all the facts and circumstances
reflected in the record,” Tardif, 57 M.J. at 224, in determining
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whether relief is warranted for the unreasonable, unexplained,
and dilatory post-trial processing in this case. Accordingly,
a remand for further consideration is appropriate.
III. CONCLUSION
The decision of the Court of Criminal Appeals is affirmed
as to findings and set aside as to sentence. The record is
returned to the Judge Advocate General of the Army for remand to
the Court of Criminal Appeals for further consideration of
whether the sentence should be approved in view of the court’s
determination on initial review that the post-trial processing
of this case was unreasonable, unexplained, and dilatory.
Thereafter, Article 67 will apply.
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