United States v. Private E1 WILLIAM A. COLLINS ( 2018 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    WOLFE, ALDYKIEWICZ, and SALUSSOLIA
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Private E1 WILLIAM A. COLLINS
    United States Army, Appellant
    ARMY 20170032
    Headquarters, United States Army Recruiting Command
    Matthew A. Calarco and J. Harper Cook, Military Judges
    Colonel Rick S. Lear, Staff Judge Advocate
    For Appellant: Lieutenant Colonel Tiffany M. Chapman, JA; Major Todd W.
    Simpson, JA; Captain Augustus Turner, JA (on brief).
    For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Virginia Tinsley, JA;
    Captain Jeremy Watford, JA (on brief).
    4 December 2018
    ----------------------------------
    MEMORANDUM OPINION
    ----------------------------------
    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
    ALDYKIEWICZ, Judge:
    Appellant raises two assignments of error, both of which merit discussion but
    no relief. First, appellant alleges his defense counsel was ineffective for “failing to
    seek [110 days] credit for civilian pretrial confinement.” 1 Second, appellant claims
    relief is warranted “because it took 125 days from action to appellate docketing.”
    Each assignment of error is discussed below. 2
    1
    Appellant’s ineffective assistance of counsel allegation focuses on counsel’s
    failure to seek credit for civilian confinement from 22 September 2016 through
    adjournment of his court-martial on 18 January 2017.
    2
    A military judge sitting as a general court-martial convicted appellant, consistent
    with his pleas, of three specifications of willfully disobeying a superior
    commissioned officer, six specifications of violating a general regulation, one
    (continued . . .)
    COLLINS—ARMY 20170032
    BACKGROUND
    Appellant is a former Staff Sergeant 3 and member of the United States Army
    Recruiting Command (USAREC) assigned to the Omaha Recruiting Command,
    Omaha, Nebraska. Appellant used his position as a recruiter to establish
    unprofessional, inappropriate, and, in some cases, sexual relationships with potential
    recruits (i.e., high school students). His actions not only violated a USAREC
    Regulation in effect at the time, but they were in direct contravention of his
    company commander’s written order to “have no contact with any of the Omaha
    Public Schools or surrounding school systems” and “[no] contact with any students,
    future [s]oldiers, or applicants.” These orders were given because of appellant’s
    alleged recruiter improprieties.
    Eventually appellant’s actions triggered a civilian law enforcement
    investigation as well as an administrative investigation under Army Regulation (AR)
    15-6. See Army Reg. 15-6, Boards, Commissions, and Committees: Procedures for
    Administrative Investigations and Boards of Officers (1 Apr. 2016). Appellant’s
    actions included, inter alia: providing high school students alcohol; exchanging
    over 35,000 electronic, personal, non-official messages with two female high school
    students (MV and EM), some of which were incredibly graphic, indecent, and of a
    sexual nature; engaging in a personal and unprofessional relationship with MV when
    she was only fifteen years-old, a relationship that included sexual acts after MV
    turned sixteen; engaging in a personal and unprofessional relationship with EM
    (. . . continued)
    specification of a false official statement, and one specification of obstruction of
    justice, in violation of Articles 90, 92, 107, and 134, Uniform Code of Military
    Justice, 
    10 U.S.C. §§ 890
    , 892, 907 and 934 (2012) [UCMJ]. The military judge
    sentenced appellant to a dishonorable discharge and forty-five months confinement.
    The military judge credited appellant with five days of sentencing credit. Pursuant
    to appellant’s pre-trial agreement, the convening authority approved only so much of
    the sentence as provided for confinement for two years and a dishonorable
    discharge. At the time of trial, appellant was already an E-1 and confined by the
    state of Nebraska. As a result, appellant’s duty and pay statuses were “confined
    civil authorities” and “no-pay due,” respectively. The issues raised by appellant
    pursuant to United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982), are without
    merit.
    3
    All charges were preferred while appellant held the rank of Staff Sergeant, a rank
    held at all times relevant to the alleged misconduct. Prior to his court-martial, due
    to his civilian criminal conviction and confinement, appellant was administratively
    reduced to the rank and grade of Private (E-1). See Army Reg. 600-8-19, Personnel-
    General: Enlisted Promotions and Reductions, para. 10-3 (25 Apr. 2017). This
    civilian confinement forms the basis for appellant’s first assignment of error.
    2
    COLLINS—ARMY 20170032
    when she was only fourteen years-old; sexual intercourse with EM after she turned
    sixteen; and, buying EM “the Plan B pill” to avoid pregnancy following one of their
    sexual encounters.
    Chronology
    On or about 30 September 2014, concerned by appellant’s conduct towards
    potential recruits, appellant’s company commander ordered appellant to “have no
    contact with any of the Omaha Public Schools or surrounding school systems” and to
    have no contact “with any students, future [s]oldiers, or applicants,” an order
    appellant understood and acknowledged.
    On or about 19 February 2016, an AR 15-6 investigation was initiated into
    appellant’s actions. When confronted by the investigating officer, appellant lied
    about his interactions with students, among other things, and attempted to influence
    the potential testimony of at least one witness, EM, by calling her and telling her to
    tell investigators that “she made [the allegations involving appellant] all up because
    of her anxiety,” and further to “testify falsely” before military and civilian
    investigators.
    Between February 2016 and on or about March 2016, EM’s parents obtained a
    civilian protective order (CPO) which prohibited appellant from contacting EM. 4
    On or about 23 March 2016, in response to an allegation that appellant was in
    violation of the CPO, Omaha Police Department (OPD) investigators made personal
    contact with EM. She informed them that appellant had been in contact with her
    daily since the issuance of the CPO, showing them recent text messages between
    herself and appellant from 16, 17, 19, 20, and 21 March 2016. The investigators,
    with EM’s consent, took her phone for further examination. Leaving EM’s
    residence, they proceeded to appellant’s apartment whereupon questioning appellant
    denied any contact with EM. Only minutes later, after the investigators left
    appellant’s apartment, appellant again made contact with EM via snapchat.
    Unbeknownst to him, the investigators, who had just left his apartment, received the
    message as they were still in possession of EM’s phone. The investigators returned
    to appellant’s apartment at which time he was immediately arrested for violating the
    CPO.
    According to appellant’s unrebutted post-trial affidavit, “[he] bonded
    [himself] out of lock up a few days following [his] arrest.” (emphasis added).
    4
    The company commander’s September 2014 order, while broader than the state
    CPO, similarly prohibited appellant from contacting EM since EM fell into the
    prohibited contacts group of “students, future [s]oldiers, or applicants.”
    3
    COLLINS—ARMY 20170032
    On 28 April 2016, appellant was charged with two specifications of
    disobeying a superior commissioned officer (Specifications 1 and 2 of Charge I) and
    one specification of obstructing justice (the Specification of Charge II), violations of
    Articles 90 and 134, UCMJ.
    On 11 July 2016, appellant pleaded guilty in Nebraska state court to violating
    a civilian protective order and contributing to the delinquency of a minor. 5
    On 29 July 2016, the following additional charges were preferred against
    appellant: six specifications of disobeying a superior commissioned officer
    (Specifications 1- 6 of Additional Charge I); seventeen specifications of failure to
    obey a lawful general regulation (Specifications 1-17 of Additional Charge II); five
    specifications of false official statement (Specifications 1-5 of Additional Charge
    III); two specifications of committing a lewd act upon a child under sixteen years of
    age (Specifications 1 and 2 of Additional Charge IV); and, three specifications of
    obstructing justice (Specifications 1-3 of Additional Charge V), violations of
    Articles 90, 92, 107, 120b, and 134, UCMJ. 6
    On 22 September 2016, appellant was sentenced by the state of Nebraska to
    two 365-day sentences to “be served consecutively.”
    On 18 January 2017, appellant pleaded guilty at a general court-martial to:
    three specifications of willfully disobeying a superior commissioned officer
    (Specifications 1, 2, and 6 of Additional Charge I); six specifications of violating a
    general regulation (Specifications 1, 2, 8, 10, 12, and 14 of Additional Charge II);
    two specifications of providing a false official statement (Specifications 1 and 3 of
    5
    Appellant was charged with two counts of violating a protective order in violation
    of 
    Neb. Rev. Stat. § 42-924
     (2000). In exchange for his guilty plea to count one, the
    State dismissed count two. Appellant was also charged with one count of
    contributing to the delinquency of a minor and one count of procuring or selling
    alcohol to a minor in violation of 
    Neb. Rev. Stat. §§ 28-709
     and 53-180 (2000). In
    exchange for his guilty plea to contributing to the delinquency of a minor, the state
    dismissed the charge of procuring or selling alcohol to a minor.
    6
    Prior to arraignment, the Government dismissed Specifications 7 and 17 of
    Additional Charge II, dismissed Additional Charge IV and its specifications, and
    renumbered the charges and specifications accordingly.
    4
    COLLINS—ARMY 20170032
    Additional Charge III) 7; and, one specification of obstructing justice (Specification 2
    of Additional Charge IV), violations of Articles 90, 92, 107, and 134, UCMJ.
    With the exception of Specification 6 of Additional Charge I, which alleges
    disobedience of a superior commissioned officer between on or about 30 September
    2014 and 25 March 2016, all other offenses allege crimes committed by appellant
    before his civilian arrest on 23 March 2016.
    On or about October 2017, appellant “completed” his civilian confinement
    and was transferred to military custody to serve the remainder of his military
    confinement. 8
    At no time was appellant’s civilian confinement at the request of the military
    or based on military charges.
    7
    Prior to entry of findings, the military judge, sua sponte, merged both
    specifications, finding the pleadings represented an unreasonable multiplication of
    charges.
    8
    Notwithstanding its availability, neither appellant nor the government provided this
    court with appellant’s exact date of release from civilian confinement. Assuming: a
    release date of 31 October 2017, the last day of the month; 365 days in a year; and,
    the consecutive nature of appellant’s two 365-day sentences, appellant served a total
    of 375 days of civilian confinement of his total 730 days adjudged confinement. The
    aforementioned time of service is consistent with appellant’s projected release date
    from Nebraska confinement when considering that state law provides a city or
    county inmate with seven days confinement credit for every fourteen days of
    confinement served without incident. See 
    Neb. Rev. Stat. § 47-502
    .
    Any person sentenced to or confined in a city or county
    jail . . . shall, after the fifteenth day of his or her
    confinement, have his or her remaining term reduced one
    day for each day of his or her sentence or sanction during
    which he or she has not committed any breach of
    discipline or other violation of jail regulations.
    Id.; see also, State v. Atkins, 
    250 Neb. 315
     (Neb. Ct. App. 1998) (
    Neb. Rev. Stat. § 47-502
     provides for good time credit at the rate of seven days per fifteen days spent
    in city/county jail). A strict application of the above statute with a release of 31
    October 2017, the absence of any “breach of discipline or other violation of jail
    regulations,” and accounting for the absence of any good time credit for the first
    fourteen days of confinement, appellant should have served 373 days of
    confinement.
    5
    COLLINS—ARMY 20170032
    LAW AND DISCUSSION
    A. Ineffective Assistance of Counsel for Failing to Seek “Pretrial” Confinement
    Credit
    Appellant alleges his trial defense counsel was ineffective for failing to seek
    confinement credit for “pretrial confinement” from 22 September 2016, the date of
    appellant’s confinement by the state of Nebraska, through 18 January 2017, the date
    his military sentence was adjudged. Defense appellate counsel alleges an
    entitlement to “approximately 110 days credit.” 9
    Ineffective assistance of counsel (IAC) claims are reviewed de novo. United
    States v. Datavs, 
    71 M.J. 420
    , 424 (C.A.A.F. 2012). To succeed, appellant “must
    show that counsel's performance was deficient, and that the deficiency prejudiced
    the defense.” Wiggins v. Smith, 
    539 U.S. 510
    , 521 (2003) (citation omitted).
    9
    A review of appellant’s brief before this court, a Julian calendar, and appellant’s
    post-trial affidavit create some confusion as to what confinement period is at issue
    vis-à-vis the demand for confinement credit and exactly how much credit appellant
    is allegedly owed, if any. In his brief, defense appellate counsel focuses on the
    period of 22 September 2016 through 18 January 2017, arguing appellant is due
    “approximately 110 days.” Using 22 September 2016 as the start date and excluding
    18 January 2017, the first day of appellant’s adjudged military confinement,
    appellant should be claiming 118 and not 110 days of credit. Lastly, rather than
    focus this court with his post-trial affidavit, in an affidavit that post-dates defense
    appellate counsel’s submission, appellant confuses the issue by arguably asserting a
    claim to only “a few days” of credit, stating, in part:
    When I was initially arrested by Omaha Police in late
    March 2017 (sic), I bonded myself out of lock up a few
    days following my arrest. I received no credit when I was
    sentenced in Douglas County.
    During my court-martial sentencing, I was never advised
    by my defense counsel that I (sic) credit was available for
    my civilian pretrial confinement. Had I known of its
    availability, I would have asked for it.
    Appellant was awarded five days of confinement credit unrelated to his time in
    civilian confinement, four days for the time he was in military custody in transit
    to/from Fort Knox for his arraignment and one day of Article 13, UCMJ, credit for
    having to attend his Article 32, UCMJ, pretrial hearing wearing a non-military
    uniform (i.e., orange prison jumpsuit).
    6
    COLLINS—ARMY 20170032
    Deficiency is shown by representation that falls “below an objective standard of
    reasonableness.” 
    Id.
     (citation omitted). Appellant’s IAC claim is inexorably linked
    to his claim for pretrial confinement credit. Claims alleging denial of pretrial
    confinement credit are likewise reviewed de novo. United States v. Smith, 
    56 M.J. 290
    , 292 (C.A.A.F. 2002).
    1. Confinement from 22 September 2016 through 18 January 2017
    The pleadings before this court, from both the defense and government
    counsel, routinely refer to the period of 22 September 2016 through 18 January 2017
    as “pretrial confinement.” Appellant’s IAC claim depends largely, if not entirely, on
    his claimed right to credit for those days spent in civilian confinement before his
    court-martial. In short, appellant claims an entitlement to Allen credit for the
    aforementioned period. See United States v. Allen, 
    17 M.J. 126
     (C.M.A. 1984)
    (establishing entitlement to pretrial confinement credit under 
    18 U.S.C. § 3568
    (repealed and replaced by 
    18 U.S.C. § 3585
    ; see United States v. Zackular, 
    945 F.2d 423
    , 424 (1st Cir. 1991)); Dep’t of Def. Instr. 1325.4, Treatment of Military
    Prisoners and Administration of Military Correction Facilities [DODI 1325.4] (7
    Oct. 1968) (replaced by DODI 1325.07, Administration of Military Correctional
    Facilities and Clemency and Parole Authority (
    11 Mar. 2013
    ) (C3, 10 Apr. 2018));
    see also United States v. Harris, 
    78 M.J. 521
    , 524-25 (Army Ct. Crim. App. 2018).
    Considering the cases cited by appellant, the government’s response thereto,
    DODI 1325.07 and Department of Defense Sentence Computation Manual (DODM)
    1325.7-M (27 Jul. 2004) (C3, 26 Sep. 2018), we find no entitlement to sentence
    credit for appellant’s lawfully adjudged civilian post-trial confinement, confinement
    for civilian offenses that are separate and distinct from his military offenses.
    Appellant’s briefed claim for sentence credit for the aforementioned period,
    and thus his IAC claim, fails for the simple reason that the aforementioned period
    was not “pretrial confinement” that might entitle appellant to relief but rather
    lawfully adjudged post-trial confinement for which appellant has already received
    credit against another lawfully adjudged sentence. See DODM 1325.7-M, C2.4.2
    (C3, 2018).
    On 11 July 2016, appellant was convicted of two state crimes, neither of
    which formed the basis of any of his military charges. On 22 September 2016
    appellant was sentenced by the state of Nebraska for those state crimes. The mere
    fact that appellant was confined prior to his court-martial does not transform
    otherwise lawfully adjudged post-trial confinement into “pretrial confinement.”
    Appellant cites, inter alia, Allen and its progeny, DODI 1325.07, and DODM
    1325.7-M in support of his claimed right to sentence credit. A review of the cited
    7
    COLLINS—ARMY 20170032
    authority, however, fails to reveal any right to sentence credit for time spent in
    civilian post-trial confinement.
    Every case cited by appellant in support of his claim involves a demand for
    credit related to time spent in pretrial, not post-trial, confinement. See United States
    v. Allen, 
    17 M.J. 126
     (C.M.A. 1984); United States v. Rosalesleonor, ARMY
    20140230, 
    2015 CCA LEXIS 260
     (Army Ct. Crim. App. 23 Jun. 2015) (summ.
    disp.); United States v. Atkinson, 
    74 M.J. 645
     (N.M. Ct. Crim. App. 2015); United
    States v. Dave, 
    31 M.J. 940
     (A.C.M.R. 1990); United States v. Davis, 
    22 M.J. 557
    (A.C.M.R. 1986); and United States v. Huelskamp, 
    21 M.J. 509
     (A.C.M.R. 1985).
    None of the cited cases grant a military accused credit for time served while in
    civilian confinement following a lawfully adjudged civilian sentence for offenses
    separate and distinct from the accused’s military offenses. That appellant’s offenses
    stem from a continuous course of conduct and are arguably related offenses does not
    change the outcome. See, e.g., United States v. Mooney, 
    77 M.J. 252
     (C.A.A.F.
    2018) (military post-trial sentence runs concurrently with federal post-trial sentence;
    appellant not awarded credit for time served pursuant to federal (i.e., non-military)
    charges).
    Appellant’s reliance on DODI 1325.07 and DODM 1325.7-M is similarly
    misplaced.
    Department of Defense Instruction 1325.07 directs that “[s]entence
    computation shall be calculated [in accordance with] DOD 1325.7-M.” DODI
    1325.07, para. 3.a.
    Department of Defense Manual 1325.7-M requires prisoners receive “all
    sentence credit directed by the military judge” and that military judges “will direct
    credit for each day spent in pretrial confinement . . . for crimes for which the
    prisoner was later convicted.” DODM 1325.7-M, para. C2.4.2 (C3, 2018).
    (emphasis added). This requirement, however, is not without limitation.
    Department of Defense Instruction 1325.07 goes on to state:
    Notwithstanding any other provision of this instruction or
    [DoD 1325.7-M], if a prisoner (accused) is confined in a
    non-military facility for a charge or offense for which the
    prisoner had been arrested after the commission of the
    offense for which the military sentence was imposed, the
    prisoner (accused) shall receive no credit for such time
    confined in the non-military facility when calculating his
    or her sentence adjudged at court-martial.
    DODI 1325.07, para. 3.c. (emphasis added).
    8
    COLLINS—ARMY 20170032
    On 22 September 2016, appellant commenced a period of post-trial civilian
    confinement. Every day spent in a Nebraska jail was time credited against his
    civilian sentence. A plain reading of the cited authorities reveals a lack of
    entitlement to any credit against appellant’s adjudged military sentence.
    Furthermore, appellant’s civilian confinement is based on offenses that are
    separate and distinct from his military offenses. All but one of appellant’s charged
    military offenses predated his arrest by civilian authorities. Only Specification 6 of
    Additional Charge I, disobedience of a superior commissioned officer between on or
    about 30 September 2014 and 25 March 2016, alleges an offense that, at first blush,
    post-dates his civilian arrest. However, the facts establish that all misconduct
    related to this offense pre-dates his arrest. Simple logic dictates no other
    conclusion. Once arrested on 23 March 2016 for violating a protective order by
    contacting EM, the arresting authorities are unlikely to have allowed appellant to
    contact students, future soldiers, or applicants, which included EM, contact that
    would necessarily have to occur from within his Nebraska jail cell. Similarly, it was
    impossible for appellant, during this period of “pretrial confinement,” to enter any
    Omaha Public School or surrounding school premises or function.
    Finally, even were we to find the confinement in question, the period of 22
    September 2016 through 18 January 2017, was in fact “pretrial confinement,” DODI
    1325.07, para. 3c. would prohibit granting appellant any credit since appellant is not
    entitled to receive credit for time confined in Nebraska jail, for a Nebraska offense,
    for which he was arrested after the commission of the military offenses. 
    Id. 2
    . Confinement for a “few days” commencing on 23 March 2016
    Our resolution of appellant’s claim for pretrial confinement credit for the
    period of 22 September 2016 through 18 January 2017 leaves two issues unresolved:
    (1) whether the military judge erred in failing to award appellant credit for the
    period covering his arrest on 23 March 2016 until he “bonded [himself] out of lock
    up a few days following [his] arrest” and (2) whether counsel was ineffective for not
    seeking credit for the aforementioned “few days.”
    A review of the record of trial reveals no mention of appellant’s confinement
    following his 23 March 2016 arrest, an arrest only mentioned in passing in the
    stipulation of fact and by one witness, EM’s father, during his sentencing
    testimony. 10 Neither the stipulation of fact nor the referenced testimony establish,
    10
    Blocks 8 and 9 of both the original and additional charge sheets only reflect
    “Civilian Confinement” and the date “22 Sep 16” respectively. There is no reference
    to any confinement related to 23 March 2016.
    9
    COLLINS—ARMY 20170032
    with any degree of certainty, confinement related to appellant’s 23 March 2016
    arrest. 11
    The only evidence regarding appellant’s confinement and subsequent release
    in March of 2016 is found in appellant’s unrebutted affidavit wherein he states:
    When I was initially arrested by Omaha Police in late
    March 2017 (sic), I bonded myself out of lock up a few
    days following my arrest. I received no credit when I was
    sentenced in Douglas County.
    During my court-martial sentencing, I was never advised
    by my defense counsel that I (sic) credit was available for
    my civilian pretrial confinement. Had I known of its
    availability, I would have asked for it.
    We find no error regarding the military judge’s failure to specifically address
    appellant’s “few days” of pretrial confinement beginning on 23 March 2016 when
    considering his detailed colloquy with the parties and appellant regarding
    appellant’s civilian confinement generally, appellant’s failure to specifically raise
    that period of confinement, and appellant’s apparent waiver of any claim for
    confinement credit beyond the period related to his military custody while in transit
    to and from Nebraska to Fort Knox for his military arraignment.
    The military judge’s inquiry into any entitlement to confinement credit was
    extensive and detailed, addressing not only counsel but also appellant himself:
    MJ: [I] see on the charge sheets, and we have discussed it
    ad nauseum here, is that the accused has been in civilian
    confinement pursuant to a conviction on state charges that
    began on the 22nd of September 2016, and he is still
    continuing to serve that period of civilian confinement.
    And that’s indicated on both charge sheets. Trial counsel,
    do you believe that there is any basis in law for any form
    of credit whatsoever for that period of confinement?
    ATC: No, Your Honor, the government does not believe
    there’s any basis in law.
    MJ:    Okay. Defense counsel, do you agree?
    11
    The witness testified that following appellant’s arrest “I think he posted bail or
    something.”
    10
    COLLINS—ARMY 20170032
    DC:   Yes, Your Honor.
    The parties then went on to discuss awarding appellant, out of “an abundance
    of caution,” four days of credit attributable to the time appellant spent in military
    custody traveling to and from Fort Knox for his military arraignment.
    Following the above, the military judge spoke directly with appellant:
    MJ: So, we’re once again at that point where this is your
    decision. It’s not your defense counsel’s decision. It’s
    your decision. You can either accept the offer of the trial
    counsel, and if you accept that, then you will receive 4
    days of -- I'm not sure what to call it, whether to call it
    pretrial confinement credit or maybe I’ll just call it
    additional credit. We’ll call it additional credit, 4 days of
    additional credit, based upon you being transferred to
    Knox and back while confined. Do you understand that?
    ACC: Yes, Your Honor.
    MJ: All right. So, your option is to accept that, or you
    can choose to litigate the matter at which case I will
    decide what the proper amount, if any, is. I can make -- I
    may choose to make it more. It might be exactly the same,
    or it might be less, down to including zero days. Do you
    understand that?
    ACC: Yes, Your Honor.
    MJ: Okay. Why don’t you take a moment to discuss it
    with your defense counsel. If you need a recess let me
    know, so you can make an informed decision on -- that
    you have.
    After speaking with his defense counsel, appellant agreed to the credit as
    noted above.
    ACC: I agree with the -- with the terms that were stated,
    Your Honor.
    MJ: Okay. So, you agree to accept the trial counsel’s
    offer of four days additional credit for being transported
    to Fort Knox and back while you were serving
    confinement under state charges. Is that correct?
    11
    COLLINS—ARMY 20170032
    ACC: Yes, Your Honor.
    MJ: Defense, do you desire to raise any other type of
    sentencing credit before the court?
    DC:   No, Your Honor.
    Notwithstanding the opportunity to tell the military judge about his pretrial
    confinement in March of 2016, appellant remained silent on the issue, mentioning it
    for the first time on appeal. The above colloquy reveals appellant waived any claim
    for sentence credit for his “few days” in confinement beginning on 23 March 2016
    absent plain error. See Rosalesleonor, 
    2015 CCA LEXIS 260
    , at *4 (“failure at trial
    to seek Allen credit for pretrial civilian confinement will constitute waiver of that
    issue in the absence of plain error”). We find no error, plain or otherwise, in the
    military judge’s handling of the confinement credit issue.
    Having found waiver, we next address whether counsel was ineffective for
    failing to seek confinement credit for the related period. In other words, whether
    waiver of the issue was deficient performance by counsel resulting in prejudice to
    appellant.
    Considering the plain language of the limitation found in DODI 1325.07, para.
    3.c., 12 we find neither deficient performance nor prejudice from trial defense
    counsel’s failure to seek credit for appellant’s pretrial confinement commencing on
    23 March 2016, credit to which appellant was not entitled.
    B. Excessive Post-Trial Delay in Dispatching Record of Trial to the Army Court
    of Criminal Appeals
    Appellant alleges that dilatory post-trial processing, specifically “125 days
    from action to appellate docketing,” warrants relief, citing United States v. Moreno,
    
    63 M.J. 129
     (C.A.A.F. 2006) in support of his position. Appellant states in his brief:
    The convening authority took action on 5 May 2017, and
    the case was filed with this court on 7 November 2017. . .
    . [T]he record of trial is devoid of any explanation from
    any member of the Office of the Staff Judge Advocate for
    the 125 day delay.
    Of the four factual assertions made by appellant in the above quoted passage,
    only one is accurate. The convening authority did act on appellant’s case on 5 May
    12
    See DODI 1325.07, para. 3.c., supra p. 8.
    12
    COLLINS—ARMY 20170032
    2017. The record, however, was received by this court on 3 November 2017, not 7
    November 2017. The time between action and appellate docketing was 182 days, not
    125 days. Finally, and most importantly, consistent with our higher court’s guidance
    in Moreno that “convening authorities . . . document reasons for delay,” Moreno, 63
    M.J. at 143, appellant’s record of trial contains a memorandum documenting the
    post-trial processing of appellant’s case and explaining the reason for the delay. 13
    In other words, the record of trial is not “devoid of any explanation from any
    member of the Office of the Staff Judge Advocate for the [182] day delay.” The
    third paragraph of the memorandum, signed by the Staff Judge Advocate, a Colonel
    and the senior “member of the Office of the Staff Judge Advocate,” states, in part:
    The court reporter was unexpectedly hospitalized and
    placed on convalescent leave for a long period of time and
    there was a miscommunication as to whether this file had
    been sent to ACCA by the court reporter who normally
    oversees the post-trial processing at USAREC.
    The delay in dispatching appellant’s record to this court was presumptively
    unreasonable. See United States v. Moreno, 63 M.J. at 142 (failure to docket case
    with the court of criminal appeals within thirty days of action is presumptively
    unreasonable triggering the four factor analysis under Barker v. Wingo, 
    407 U.S. 514
    (1972) to assess whether delay rises to the level of a due process violation).
    Having considered Barker’s four factors: (1) the length of the delay; (2) the
    reasons for the delay; (3) appellant’s assertion of the right to timely review and
    appeal; and (4) prejudice, with no one factor being dispositive, and Moreno’s three
    sub-factors to assess the factor of prejudice: (1) prevention of oppressive
    incarceration pending appeal; (2) minimization of anxiety and concern of those
    convicted awaiting the outcome of their appeals; and (3) limitation of the possibility
    that a convicted person’s grounds for appeal, and his or her defenses in case of
    reversal and retrial, might be impaired, we find no due process violation in the post-
    trial processing of appellant’s case. United States v. Arias, 
    72 M.J. 501
    , 504 (Army
    Ct. Crim. App. 2013) (citations and quotations omitted).
    Additionally, the post-trial processing of appellant's case was not “so
    egregious that tolerating it would adversely affect the public's perception of the
    fairness and integrity of the military justice system.” United States v. Toohey, 
    63 M.J. 353
    , 362 (C.A.A.F. 2006).
    13
    The allied documents in the record of trial contain a memorandum, dated 31
    October 2017, signed by the Staff Judge Advocate, with the subject “Post-Trial
    Processing Timeline.”
    13
    COLLINS—ARMY 20170032
    On 22 September 2016, appellant was lawfully adjudged post-trial
    confinement by the state of Nebraska for separate and distinct civilian offenses. He
    was sentenced to two 365-day sentences, sentences that were to run consecutively.
    On 18 January 2017, appellant was sentenced by a military court-martial to forty-
    five months confinement but had a negotiated plea deal for two years confinement, a
    confinement clock that began to run on 18 January 2017 despite the fact that the
    convening authority could have, sua sponte, deferred appellant’s service of his
    military confinement until completion of his civilian confinement. See Articles 57
    and 57a, UCMJ; Rule for Courts-Martial 1107(d)(3); United States v. Mooney, 
    77 M.J. 252
    , 255-57 (C.A.A.F. 2018). In October of 2017, appellant completed serving
    his civilian confinement and was returned to military control to complete his
    military confinement. In other words, appellant “served” approximately nine months
    of his two-year military sentence without ever setting foot in a military or federal
    prison, receiving credit for his state confinement.
    Considering the nature of the offenses of which appellant stands convicted,
    that appellant was convicted by two separate sovereigns, that he was released from
    state custody well before the expiration of his two year adjudged confinement,
    serving at most 375 of a 730 day sentence, and that his military confinement clock
    began to run the date his sentence was announced, despite the fact that he remained
    in civilian custody for approximately nine months of his two year military sentence,
    we decline to exercise our Article 66(c), UCMJ, sentence appropriateness authority
    to grant appellant relief for the post-trial processing delay in this case.
    CONCLUSION
    The findings and sentence are AFFIRMED.
    Senior Judge WOLFE and Judge SALLUSOLIA concur.
    FOR
    FOR THE
    THE COURT:
    COURT:
    MALCOLM H.
    MALCOLM     H. SQUIRES,
    SQUIRES, JR.
    JR.
    Clerk of
    Clerk of Court
    Court
    14
    

Document Info

Docket Number: ARMY 20170032

Filed Date: 12/4/2018

Precedential Status: Non-Precedential

Modified Date: 9/18/2019