United States v. Private First Class JOSHUA R. KITTELMANN ( 2015 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
LIND, COOK, and KRAUSS
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class JOSHUA R. KITTELMANN
United States Army, Appellant
ARMY 20120542
Headquarters, III Corps and Fort Hood (convened)
Headquarters, Fort Hood (action)
James L. Varley, Military Judge
Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)
Colonel Richard W. Rousseau, Staff Judge Advocate (post-trial)
For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Payum Doroodian, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Major Steven J. Collins, JA; Captain
Carling M. Dunham, JA (on brief).
29 May 2015
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SUMMARY DISPOSITION
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LIND, Senior Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of possession of child pornography in
violation of Article 134, Uniform Code of Military Justice [hereinafter UCMJ],
10 U.S.C. § 934 (2006). The convening authority approved the adjudged sentence of
a dishonorable discharge, confinement for twelve months, and reduction to the grade
of E-1.
This case is before the court for review under Article 66, UCMJ. We have
examined appellant’s assignments of error, and find one of the assigned errors
alleging excessive post-trial delay in the processing of this case—both prior to and
after action—warrants relief.
KITTELMANN—ARMY 20120542
Appellant was sentenced on 30 May 2012. He first complained of excessive
post-trial delay in a memorandum from his defense counsel on 10 April 2013. On
12 June 2013, initial transcription of the record of trial was completed . The military
judge received the record of trial on 20 June 2013 and completed authentication on
15 July 2013. On 16 July 2013, the court reporter sent the record of trial to the post -
trial section of the criminal law office “for further post -trial processing.” The
record of trial was mailed to appellant on 20 August 2013, and received by him on
24 August 2013. The staff judge advocate (SJA) signed the recommendation on
20 September 2013. Appellant again raised post-trial delay as legal error in his
initial Rule for Courts-Martial [hereinafter R.C.M.] 1105 submissions initially
submitted on 23 October 2013. Appellant submitted amended R.C.M. 1105 matters
on 1 November 2013. On 7 November 2013, the SJA addressed this legal error in
the addendum, opined there was no due process violation from the delay, and
recommended no corrective action or clemency. The convening authority took
action the same day. This court received the record of trial on 3 January 2014.
There was no contemporaneous explanation for any of the delay. The record of trial
is 249 pages. On appeal, government appellate counsel moved to attach affidavits
from the Senior Installation Court Reporter and the Chief of Justice, dated
November 2014, to explain the delay.
The total post-trial processing time in appellant’s case is 526 days from
sentence to action and 57 days from action to receipt by this court. This amounts to
406 days beyond the point where we presume unreasonable delay in post -trial
processing at action and 27 days more than is expected for receipt of the record by
this court. See United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006)
(recognizing a presumption of unreasonable delay in cases where action is not taken
within 120 days of the completion of trial and where the record of trial is not
docketed at this court within 30 days of action). This facially unreasonable delay
triggers our review of the remaining Moreno factors: reasons for the delay; timely
assertion of the right to speedy post-trial review; and prejudice. 63 M.J. at 135-36.
Turning to the second factor—reasons for the delay—much of the delay in this
case, 378 days, occurred during transcription. The explanation by the Senior
Installation Court Reporter described the personnel and heavy case -load challenges
faced by the Office of the Staff Judge Advocate (OSJA) during the transcription of
appellant’s case. Our superior court has held “that personnel and administrative
issues . . . are not legitimate reasons justifying otherwise unreasonable post -trial
delay.” United States v. Arriaga, 70 M.J. 51, 57 (C.A.A.F. 2011). However, as
noted by the Senior Installation Court Reporter’s affidavit, the SJA sought to
mitigate this transcription backlog by seeking outside court-reporter assistance. The
transcription in appellant’s case was completed by a court reporter at Fort Bragg.
Only 29 days are attributable to the defense: 20 days for the defense’s request
for an extension of time to submit post -trial matters and 9 days for the defense to
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KITTELMANN—ARMY 20120542
submit amended post-trial matters. The Chief of Justice also stated in his affidavit
that the addendum was originally drafted 5 days after appellant initially submitted
his post-trial matters, but had to be re-drafted after he submitted amended post -trial
matters. The re-drafted addendum was signed 6 days after receipt of appellant’s
amended post-trial matters. The rest of the time rests on the government’s
shoulders.
Even assuming the OSJA had a sense of urgency during the transcription
process, and even if the 6 days between appellant’s submission of his amended post -
trial matters and the signing of the re-drafted addendum is reasonable, there is still
no explanation for the other periods of excessive delay. There is no explanation for
the 25 days the military judge took to authenticate the record of trial; no explanation
for the 35 days between the post-trial paralegal’s receipt of the authenticated
transcript and the mailing of the ROT to appellant; no explanation for the 28 days
between receipt of the ROT by appellant and the signing of the SJAR; and no
explanation for the 57 days it took between action and receipt of the record by this
court.
The explanations that the government provided from the OSJA are dated over
a year after action was taken. Although Moreno was decided more than seven years
ago, we continue to review routine records of tr ial where the SJA fails to
contemporaneously provide explanations for post -trial delay necessary to
demonstrate that the OSJA is tracking post-trial processing of cases and understands
the need for transparency, a sense of urgency, and accountability for e xcessive post-
trial 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
Moreno, 63 M.J. at 143; see also United States v. Canchola, 64 M.J. 245, 247
(C.A.A.F. 2007) (per curiam); United States v. Arias, 72 M.J. 501, 505 (Army Ct.
Crim. App. 2013); United States v. Bauerbach, 55 M.J. 501, 507 (Army Ct. Crim.
App. 2001).
The purpose of contemporaneously documenting the reasons for the delay is
to demonstrate the SJA is aware of the excessive post-trial delay and is taking steps
to ameliorate the reasons for the excessive delay. The requirement for a timely
explanation for excessive post-trial delay encourages accountability, but also assists
SJAs, convening authorities, and this court in resolving post-trial delay claims under
Moreno and Article 66, UCMJ. See Moreno, 63 M.J. at 143.
Turning to the third factor, appellant twice asserted his right to speedy post-
trial review. Finally, though we find no prejudice as a result of the excessive delay
and no due process violation resulting from egregious delay, we review the
appropriateness of the sentence in light of unjustified dilatory post -trial processing.
UCMJ art. 66(c). See Moreno, 63 M.J. at 138-42; United States v. Toohey, 63 M.J.
353, 362 (C.A.A.F. 2006); United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F.
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KITTELMANN—ARMY 20120542
2002). We conclude in light of the facts described above—and despite the
seriousness of the offense of which appellant stands convicted—relief is warranted
under Article 66(c), UCMJ. See Tardif, 57 M.J. at 224.
CONCLUSION
The findings of guilty are AFFIRMED. After consideration of the entire
record, including the unreasonable and unexplained post -trial delay, the court
affirms only so much of the sentence as provides for a dishonorable discharge,
confinement for ten months, and reduction to the grade of E-1. See UCMJ art. 66(c).
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. 58a(b), 58b(c), and 75(a).
Senior Judge COOK and Judge KRAUSS concur.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of
Clerk of Court
Court
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