UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class RUSSOMAR VILLEGAS-ROJAS
United States Army, Appellant
ARMY 20111132
Headquarters, United States Army Alaska
David L. Conn, Military Judge
Colonel Tyler J. Harder, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Major Vincent T. Shuler, JA; Captain Ian
M. Guy, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Carl L. Moore, JA (on brief).
9 October 2014
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SUMMARY DISPOSITION
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Per Curiam:
A panel of officer and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of aggravated sexual assault, abusive
sexual contact, and wrongful sexual contact, in violation of Article 120, Uniform
Code of Military Justice, 10 U.S.C. § 920 (2006 & Supp. IV 2011) [hereinafter
UCMJ]. * The panel sentenced appellant to a bad-conduct discharge, confinement for
*
After findings, the military judge stated that he would “merge” wrongful sexual
contact (Specification 3 of the Charge)) with aggravated sexual assault and abusive
sexual contact (Specifications 1 and 2 of the Charge, respectively) because wrongful
sexual contact “traditionally amounted to a lesser included offense of” the greater
offenses. The military judge’s use of the term “merge” is potentially ambiguous.
He did not definitively consolidate the specifications, nor did he dismiss
(continued . . .)
VILLEGAS-ROJAS—ARMY 20111132
twelve months, forfeiture of all pay and allowances, and 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. In his sole
assignment of error, appellant asks this court to provide appropriate relief to remedy
the dilatory post-trial processing of his case. We agree that relief is appropriate in
this case and grant thirty days confinement credit. The matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), do not
warrant relief.
The convening authority took action 471 days after the sentence was
adjudged. The record in this case consists of seven volumes and the trial transcript
is 581 pages. Although appellant does not allege that the post-trial delay caused
prejudice, and 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). It took 233 days to initially transcribe the record in this case.
In attempting to authenticate the record of trial the military judge discovered that the
record was incomplete, and it took an additional 19 days to complete transcription
of the record of trial. It took 343 days from trial until the record was authenticated.
The government provided an explanation that the incomplete transcription was
due to a malfunction in recording equipment. Despite this explanation, and the
government’s timeline, which is critical of the time it took defense counsel to submit
post-trial matters, relief in this case 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.
We find that relief is appropriate under the facts of this case, and provide relief in
our decretal paragraph.
(. . . continued)
Specification 3 as multiplicious. See United States v. Mayberry, 72 M.J. 467
(C.A.A.F. 2013) (summ. disp.). To clarify any ambiguity, we dismiss Specification
3 in our decretal paragraph. In any event, the military judge treated all offenses as
“a unitary offense for purposes of sentencing.” Accordingly, appellant was not
prejudiced with regard to his sentence.
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VILLEGAS-ROJAS—ARMY 20111132
CONCLUSION
Upon consideration of the entire record, including the matters submitted
pursuant to Grostefon, the findings of guilty to Specification 3 of the Charge is set
aside and that specification is dismissed. The remaining findings of guilty are
affirmed. We are able to reassess the sentence on the basis of the amended findings,
and do so after conducting a thorough analysis of the totality of circumstances
presented by appellant’s case and in accordance with the principles articulated in
United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States
v. Sales, 22 M.J. 305 (C.M.A. 1986). In evaluating the Winckelmann factors, we
first find no change in the penalty landscape or the gravamen of appellant’s criminal
conduct. We are convinced that the panel would have adjudged the same sentence
had they only convicted appellant of aggravated sexual assault and abusive sexual
contact. Given the dilatory post-trial processing, however, we affirm only so much
of the sentence as extends to a bad-conduct discharge, confinement for eleven
months, forfeiture of all pay and allowances, and reduction to the grade of E-1. All
rights, privileges, and property, of which appellant has been deprived by virtue of
this decision setting aside portions of the findings and sentence are ordered restored.
See UCMJ arts. 58a(b), 58b(c), and 75(a).
FOR
FORTHE
THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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