UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Senior Airman MATTHEW A. THEURER
United States Air Force
ACM 38658
28 May 2015
Sentence adjudged 28 January 2014 by GCM convened at Seymour
Johnson Air Force Base, North Carolina. Military Judge: Michael J. Coco
and Joshua E. Kastenberg (sitting alone).
Approved Sentence: Dishonorable discharge, confinement for 40 years, and
reduction to E-1.
Appellate Counsel for the Appellant: Major Jeffrey A. Davis.
Appellate Counsel for the United States: Major Roberto Ramírez and
Gerald R. Bruce, Esquire.
Before
ALLRED, HECKER, and TELLER
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
HECKER, Senior Judge:
A general court-martial composed of a military judge alone convicted the
appellant, in accordance with his pleas, of making a false official statement, murder, child
endangerment, and obstruction of justice, in violation of Articles 107, 118, and 134,
UCMJ, 10 U.S.C. §§ 907, 918, 934. The appellant was sentenced to a dishonorable
discharge, confinement for life, forfeiture of all pay and allowances, and reduction to E-1.
In accordance with a pretrial agreement, the convening authority approved the
dishonorable discharge, confinement for 40 years, and reduction to E-1.
On appeal, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the
appellant contends his sentence is inappropriately severe and that post-trial processing
delays warrant sentence relief. Finding no error that materially prejudices a substantial
right of the appellant, we affirm the findings and sentence.
Background
The charges in this case revolve around the tragic death of the appellant’s
14-month-old son. After the infant was born in December 2011, he lived with his
mother, AJT, and the appellant on Seymour Johnson Air Force Base (AFB), North
Carolina. When the infant was five months old, AJT left the appellant due to marital
problems and moved to Indiana with the infant.
In late July 2012, AJT asked the appellant to retrieve the baby as she was unable
to care for him. The appellant brought the baby back to Seymour Johnson AFB and the
two lived on base. After the appellant was late to work on several occasions in
November 2012 due to child care issues, his section chief directed him to enroll the now
11-month-old child in the base child development center (CDC). When the appellant
indicated that enrollment had occurred, his unit put him on a modified work schedule to
accommodate the childcare center’s limited hours. In fact, the appellant had completed
paperwork to enroll the infant, but never took him to the CDC, despite the child being
accepted.
In early December 2012, the appellant moved a woman he had met online into his
on base house. She cared for the child for approximately one month, before she was
ordered off base in early January 2013 due to improper sponsorship by the appellant.
From that time forward, the appellant would leave the child alone in the house
each day while he went to work. The child would be left in his crib or on the floor for at
least 12 hours per day, without adequate food, hydration, or supervision. In his guilty
plea inquiry, the appellant stated he would feed his son in the morning and the evenings,
but often did not give him age appropriate food. On one occasion in January 2013, he
left the child for approximately 24 hours while he traveled to meet a woman he met on a
dating website. Throughout this time period, the appellant did not seek assistance and
turned down several offers of assistance from friends, none of whom understood the
severity of the situation. The appellant told investigators he could see the child was
getting skinnier, but he did not take him for medical care because he was afraid of what
would happen.
According to the appellant, on 15 February 2013, he gave the child a cup of milk
and a piece of toast and left him alone in the house for over 12 hours. He returned home
and eventually went to check on his son. The child was lifeless on the floor. The
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appellant stated he became distraught, placed the child in multiple trash bags and put him
in his car, along with his luggage for his planned trip to visit the woman in South
Carolina. He threw his son’s body into the woods and continued with his trip.
Beginning the day the child died, the appellant started lying to family members
about the status of the child. By 10 March 2013, AJT and her family became suspicious
and contacted the base command post. When asked by personnel from his unit, the
appellant said the child had been sick but that he had been in contact with a doctor. Later
that evening, the appellant was directed by personnel from his chain of command to
return home for an inspection. His house was found to be in an unsanitary and unlivable
condition, and the appellant falsely told his first sergeant that the child was with an
off-base babysitter. The next day, the house again failed inspection, and the appellant
was ordered to have the child home the following day, when another inspection would
occur. The appellant attempted suicide that night and ultimately admitted that his son
was “gone” and had died in February.
Under rights advisement, the appellant admitted to the events surrounding the
child’s death and provided information on where his body could be found. A subsequent
autopsy revealed the emaciated child died from severe malnutrition as a result of neglect.
The child’s body weighed just under 14 pounds, which is under the 5th percentile for
children that age. There were no signs of physical abuse.
The appellant pled guilty to murdering his son by engaging in the inherently
dangerous acts of starvation and maltreatment. He admitted that leaving his young child
alone in the manner described above and his failure to seek medical treatment for the
child demonstrated a wanton disregard for human life, and that he knew death or great
bodily harm was a probable consequence of his failure to feed and hydrate the child. He
admitted he could have done so or had others take care of the child if he had wanted. The
appellant also pled guilty to child endangerment for leaving the child alone and failing to
adequately feed and obtain medical care for him.
The appellant also pled guilty to obstructing justice by wrapping his son’s body in
trash bags and leaving it beside a road. For stating on 10 March 2013 that his child was
with an off-base babysitter when, in fact, he was dead, the appellant pled guilty to making
a false official statement.
Sentence Appropriateness
Pursuant to Grostefon, the appellant asserts that his sentence is inappropriately
severe based on sentence comparisons. To support this claim, he cites two cases
referenced in his clemency submission to the convening authority, and argues that his
sentence to 40 years confinement is inappropriately severe when compared to the
sentences in those cases.
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This court reviews sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we find] correct in law and fact and
determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ,
10 U.S.C. § 866(c). “We assess sentence appropriateness by considering the particular
appellant, the nature and seriousness of the offenses, the appellant’s record of service,
and all matters contained in the record of trial.” United States v. Anderson, 67 M.J. 703,
705 (A.F. Ct. Crim. App. 2009). Although we are accorded great discretion in
determining whether a particular sentence is appropriate, we are not authorized to engage
in exercises of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
In exercising sentence appropriateness review, “[t]he Courts of Criminal Appeals
are required to engage in sentence comparison only ‘in those rare instances in which
sentence appropriateness can be fairly determined only by reference to disparate
sentences adjudged in closely related cases.’” United States v. Sothen, 54 M.J. 294, 296
(C.A.A.F. 2001) (quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). An
appellant bears the burden of demonstrating that any cited cases are “closely related” to
the appellant’s case and the sentences are “highly disparate.” United States v. Lacy,
50 M.J. 286, 288 (C.A.A.F. 1999). Closely related cases include those which pertain to
“coactors involved in a common crime, servicemembers involved in a common or
parallel scheme, or some other direct nexus between the servicemembers whose
sentences are sought to be compared.” Id. If the appellant meets his or her burden to
demonstrate closely related cases involve highly disparate sentences, the government
“must show that there is a rational basis for the disparity.” Id.
We reject the appellant’s invitation to engage in sentence comparison. The cases
he cites do not involve coactors involved in a common crime, servicemembers involved
in a common or parallel scheme, or some other direct nexus between the servicemembers.
Although each case* involved the death of a child, this falls short of the requirement that
the referenced cases be “closely related.” There is no direct nexus between the three
perpetrators (the appellant and the other two cases) in these cases and as such, the
appellant has failed to meet his burden of demonstrating that the cases are closely related.
We next consider whether the appellant’s sentence was appropriate “judged by
‘individualized consideration’ of the [appellant] ‘on the basis of the nature and
seriousness of the offense and the character of the offender.’” United States v. Snelling,
14 M.J. 267, 268 (quoting United States v. Mamaluy, 27 C.M.R. 176, 180–81 (C.M.A.
1959)). We have given individualized consideration to this particular appellant, the
*
In one case, a civilian spouse of an active duty Airman was convicted by a civilian jury in Texas for the starvation
death of her 22-month old-daughter, and received a 30-year prison sentence. The other case involved an active duty
Airman who was convicted of the involuntary manslaughter of his 7-week-old baby and was sentenced to 5 years of
confinement.
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nature and seriousness of the offenses, the appellant’s record of service, and all other
matters contained in the record of trial. We find the approved sentence was clearly
within the discretion of the convening authority, was appropriate in this case, and was not
inappropriately severe.
Appellate Review Time Standards
The appellant asserts he is entitled to relief because the government violated his
due process right to timely post-trial processing of his case when 184 days elapsed after
trial before the convening authority took action.
We review claims that an appellant was denied his due process right to speedy
post-trial processing de novo. United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F.
2006). In conducting this review, we assess the four factors laid out in Barker v. Wingo,
407 U.S. 514, 530 (1972): “(1) the length of the delay; (2) the reasons for the delay;
(3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice.”
Moreno, 63 M.J. at 135 (citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005));
see also United States v. Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004). There is a
presumption of unreasonable delay when the convening authority does not take action
within 120 days of the completion of trial. Moreno, 63 M.J. at 142. As the convening
authority’s action did not take place within 120 days of the completion of trial, the length
of the delay is unreasonable on its face, and we proceed to an analysis of the remaining
three Barker factors.
Through a chronology included within the record of trial, the government provides
reasons for the delay. The appellant’s trial concluded on 28 January 2014. The record of
trial was completed 23 days later but was not authenticated by the military judge until
11 April 2014 (day 73 following trial). The staff judge advocate’s recommendation
(SJAR) was not served on defense counsel until almost a month later (day 98). The
defense requested, and was given, a five-day extension in the deadline for the clemency
submission, making the defense submission due on day 115. The defense submitted its
clemency package on that day, but two weeks later the convening authority requested
additional information from the defense regarding its request for waiver of forfeitures.
The convening authority granted the defense request that he delay action in the case while
the defense gathered the required documentation. The totality of this information was not
produced by the defense until 21 July 2014, and the convening authority took action in
the case 10 days later.
When considered in its totality, the second Barker factor weighs slightly in favor
of the appellant. Although there were delays in the government’s accomplishment of
several steps within the post-trial processing, the primary delay resulted from the defense
gathering material that the convening authority required prior to approving waiver of
forfeitures. We recognize that if the initial processing of the case had been faster, the
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time required for the appellant to meet that requirement would have been within the
120-day time period.
For the third factor, although the government carries the primary responsibility for
speedy post-trial processing, United States v. Bodkins, 60 M.J. 322, 323–24 (C.A.A.F.
2004), the appellant did not assert his right to speedy post-trial processing until now on
appeal, never asserting this right during the time of this initial delay.
Finally, on the fourth factor, the appellant fails to articulate any prejudice in this
case. When there is no showing of prejudice under the fourth factor, “we will find a due
process violation only when, in balancing the other three factors, the delay is 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, 361–62
(C.A.A.F. 2006). Having considered the totality of the circumstances and the entire
record, when we balance the other three factors, we find the post-trial delay in this case to
not be so egregious as to adversely affect the public’s perception of fairness and integrity
of the military justice system. We are convinced the error is harmless beyond a
reasonable doubt.
While we find the post-trial delay was harmless, that does not end our analysis.
Article 66(c), UCMJ, empowers appellate courts to grant sentence relief for excessive
post-trial delay without the showing of actual prejudice required by Article 59(a), UCMJ,
10 U.S.C. § 859(a). United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); see also
United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In United States v. Brown,
62 M.J. 602, 606–07 (N.M. Ct. Crim. App. 2005), our Navy and Marine Court colleagues
identified a “non-exhaustive” list of factors to consider in evaluating whether
Article 66(c), UCMJ, relief should be granted for post-trial delay. Among the
non-prejudicial factors are the length and reasons for the delay; the length and complexity
of the record; the offenses involved; and the evidence of bad faith or gross negligence in
the post-trial process. Id. at 607. Although the record of trial was not long or complex,
we nevertheless find there was no bad faith or gross negligence in the post-trial
processing and the length of delay was minimal. We conclude that sentence relief under
Article 66, UCMJ, is not warranted.
Conclusion
The approved findings and the sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ.
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Accordingly, the approved findings and the sentence are AFFIRMED.
FOR THE COURT
STEVEN LUCAS
Clerk of the Court
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