Army Court of Criminal Appeals

United States v. Pettry

Another stern warning.

Sentenced on 2 August 2022, entry of judgment on 27 Sep 2022. The trial counsel completed the precertification review on 3 Apr 2023. Military judge's authentication on 11 Apr 2023. The government then forwarded the record to the court without any explanation for the post-trial processing delay. The record was docketed at this court on 28 April 2023, 269 days after adjournment and 213 days after the entry of judgment. The government obtained and requested to attach a post-trial delay memo dated 24 October 2023, but that motion was denied.

Visiting each basis for granting relief for post-trial delay, ACCA finds no Due Process violation. But visits Article 66(d)(2).

In determining whether relief is appropriate, this court considers the totality of the circumstances "balancing the interplay between factors such as chronology, complexity, and unavailability, as well as the unit's memorialized justifications for any delay." See United States v. Winfield, 83 M.J. 662, 666 (Army Ct. Crim. App. 2023).
. . .
In Winfield, this Court reinforced the requirement to provide an explanation, stating "we will scrutinize even more closely the unit-level explanations for post- trial processing delays." 83 M.J. at 665.

After reviewing the entire record and considering the totality of the circumstances, similar to our decision in United States v. Bionaz, the unexplained 188 days between entry of judgment and the trial counsel precertification review was excessive [a]ccordingly, we find that 15-day reduction to the confinement sentence is appropriate.

A Pyrrhic victory as the Appellant will have served his initial 180 days of confinement.

Judge Penland

fully concur[s] with the ultimate relief in this case but write separately to express my view that the Fifth Amendment's Due Process Clause is an additional basis for it. Even though appellant has not shown prejudice, the government offers no timely explanation for the post-trial delay. This gap in information plainly conflicts with our decisions requiring the government to explain such dilatory behavior. See United States v. Grant, 82 M.J. 814, 819 (Army Ct. Crim. App. 14 November 2022); United States v. Wagner, ARMY 20210336, 2022 CCA LEXIS 634, at *8-9 (Army Ct. Crim. App. 21 October 2022) (mem. op.); United States v. Cooper, ARMY 20200614, 2022 CCA LEXIS 399, at *3-4 (Army Ct. Crim. App. 7 July 2022) (summ. disp.); United States v. Winfield, 83 M.J. 662, (Army Ct. Crim. App. 27 April 2023). The delay and disregard for binding precedent rise to a level of egregiousness such that it would adversely affect the public's perception of the fairness and integrity of the military justice system, violating appellant's right to due process. United States v. Toohey II, 63 M.J. 353, 362 (C.A.A.F. 2006).

The court notes no demand for speedy review in its due process analysis--this is an easy fix. For example, 

MJ: Counsel, are there any further matters?
DC: Your honor, we want to put it on the record that Seaman Guppy demands speedy post-trial processing of his case.
MJ: Government, did you hear that?
TC: Huh?

There are more steps as time passes, but the initial notice starts to build a record. While a DCs post-trial actions have become less over the years, she still represents the client until an appellate counsel takes over. Making a record for post-trial delay would clearly fall within Palenius's dictate. I appreciate it is the Government's duty post-trial and DC should not have to police the Government. But that is how the system works.

After trial and conviction of the accused, the trial defense attorney should and can with honor be of much more assistance to his client and to the court. First, the trial defense attorney should advise his client concerning the appeal process including the various intermediate reviews subsequent to the trial and prior to transmittal of the record to the Court of Military Review. Additionally, he should take action on behalf of his client as necessary during the intermediate reviews contemplated by the Uniform Code of Military Justice.

Second, the trial defense attorney should familiarize himself with the grounds or issues, if any, which should be argued during the appeal before the Court of Military Review. These should be discussed with his client and passed on to the appellate defense counsel when that counsel enters the case.

Third, the trial defense attorney can and should remain attentive to the needs of his client by rendering him such advice and assistance as the exigencies of the particular case might require.

Finally, the prevailing practice among some trial defense attorneys of ceasing all activity on behalf of their clients and, in effect, terminating the relationship of attorney and client without the permission of their clients or of the courts can no longer be countenanced. The trial defense attorney can with honor and should maintain the attorney-client relationship with his client subsequent to the finding of guilty while performing the duties we set forth today until substitute trial counsel or appellate counsel have been properly designated and have commenced the performance of their duties, thus rendering further representation by the original trial defense attorney or those properly substituted in his place unnecessary.

United States v. Palenius, 2 M.J. 86 (C.M.A. 1977).

The Army Criminal Law Deskbook addresses post-trial matters, citing Palenius, and includes a reference to Strickland.