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
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SUMMARY DISPOSITION
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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.
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HINZMAN — ARMY 20120441
Senior Judge YOB and Judge LIND concur.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
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