## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant TI MOTHY D. WORLDS United States Army, Appellant

ARMY 20150134

Headquarters, U.S. Army Alaska
Samuel A. Schube rt, Military Judge
Colonel Erik L. Christia nsen, Staff Judge Advocate

For Appellant: Colone l Mary J. Bradley, JA; Major Christopher D. Coleman, JA; Captain Joshua G. Grubaugh, JA (on brief).

For Appellee: Li eutenant Colonel A.G. Courie III, JA; Major Michael E. Korte, JA (on brief).

22 September 2017

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

FEBBO, Judge:

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises three assignments of error, two of which merit a brief discussion, none merit

relief.

A military judge sitting as a general court-martial convicted appellant, contrary to his plea s, of aggravated assault and fi ve specifications of assault consummated by battery in violation of Article 128, Unifor m Code of Military Justice, 10 U.S.C. § 928 (2012) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, co nfinement for twenty-three months, and

reduction to E-1. The military judge awarded appe llant 400 days of pretrialWORLDS-ARMY 20150134

2 confinement credit. 1 The convenin g authority approved the adjudged sentence and appellant’s 400 days of pretrial confinement.

BACKGROUND

On 1 August 2014, ap pellant was placed into pretrial confinement. On 18 August 2014, appellant was char ged with multiple offenses to include assaulting his spouse and assaulting a non-commissioned o fficer. After the initial preliminary hearing officer was replaced due to a re-assignment, th e Article 32(b) hearing was scheduled for 15 September 2014. The government reques ted a delay of the hearing until 18 September and the defense requested a delay until 23 September 2014.

On 22 September 2014, based on appellant ’s diagnosis of Graves Disease, the special court-martial convening authority (SPCMCA) ordered an inquiry into the mental capacity and me ntal responsibility of the accused (sanity board) pursuant to

Rule for Courts-Martial [hereinafter R.C.M.] 706. 2 The SPCMCA ordered the sanity board to be completed as so on as possible but no la ter than 24 November 2014. Appellant ultimately waived the Article 32(b) heari ng on 29 September 2014.

On 26 November 2014, the findings of the sanity board were completed and

released. Prior to the release of thos e findings, appellant’s defense counsel submitted four requests for speedy tria l and asked for the case to be referred prior to

the conclusion of th e sanity board.

On 9 December 2014, appellant’s case was referred to a general court-martial. On 11 December 2014, the tr ial court received the referred charges. On 15 December 2014, appellant file d a motion to dismiss the charges and specifications with prejudice “pursuant to Article 10, Un iform Code of Militar y Justice . . . for violation of the speedy trial requireme nts of R.C.M. 707(c)(2) and the Sixth

Amendment to the United States Constitution.” On 17 Decembe r 2014, the SPCMCA signed a Memorandum for Record (MFR) explicitly approving the pretrial

1 In addition to appellant’s 145 days of pretrial confinemen t, the parties stipulated to an additional 255 days of Article 13, UCMJ confinem ent credit for appellant’s
conditions while in a civilia n confinement facility.

2 We note that the SPCMCA’s memorandum requesting the sanity board only listed appellant’s Graves Disease as a basis for the mental inquiry. In the stipulated chronology, the parties incl ude Traumatic Brain Injury and Post Traumatic Stress Disorder, along with Graves Disease as prompting the gover nment request for the mental inquiry. Graves Disease is an autoimmune disease that, the parties stipulated, can resu lt in “uncontrolla ble mood swings.”WORLDS-ARMY 20150134

3 delay for the time it took to conduct the sa nity board. On 23 December 2014, appellant was arraigned and the militar y judge released hi m from pretrial

confinement.

The military judge schedu led trial to begin 20 Janu ary 2015. Appellant’s defense counsel reques ted a continuance until 11 Fe bruary 2015. The government did not oppose the request and the milita ry judge granted the defense requ est for a continuance. The chronology below was stipulated to by the parties. After reviewing the record, we likewise adopt th is chronology; however we find that the speedy trial clock sto pped on 11 December 2014. 3

Date Action Day # 01-Aug-14 Accused or dered into pretri al confinement 0 02-Aug-14 Speedy trial clock begins 1 18-Aug-14 Preferral of charges 17 22-Sep-14 R.C.M. 706 Board appointed at G overnment request 56

26-Nov-14 R.C.M. 706 Bo ard findings released 117

29-Nov-14 Speedy trial clock @ Day 120 without excluding delay 120

09-Dec-14 Referral of case to General Court-Martial 130 11-Dec-14 Military Judge re ceives referred charges 132

15-Dec-14 Defense moti on to dismiss (Art. 10 and R.C.M. 707) 136 17-Dec-14 SPCMCA approves de lay for R.C.M. 706 board 138 23-Dec-14 Appellant arraigned 144

23-Dec-14 Speedy trial clock stops 144

LAW AND DISCUSSION

A. Speedy Trial

“The conclusion whether an accused received a speedy trial is a legal question

that is reviewed de novo . . . .” United States v. Wilder, 75 M.J. 135, 138 (C.A.A.F. 2015)(quoting United States v. Leahr , 73 M.J. 364, 367 (C.A .A.F. 2014)). The military judge’s ruling on a R.C.M. 707 speedy trial motion is reviewed under an

3 The trial court received th e referred charges on 11 De cember 2014. For speedy trial purposes, once the trial court receives the referred charges from the convening authority, the trial court is responsible for time between receipt of the referred charges and ar raignment. United States v. Hawkins , 75 M.J. 640 (Army Ct. Crim. App. 2016).WORLDS-ARMY 20150134

4 abuse of discretion standard. United States v. Lazauskas , 62 M.J. 39, 41-42 (C.A.A.F. 2005) (citing R.C.M. 707 (c)). This court is “bound by the f acts as found by the military judge unl ess those facts are clearly erroneous.” United States v. Cooley , 75 M.J. 247, 259 (C.A .A.F. 2016) (quoting United States v. Cossio , 64 M.J. 254, 256 (C.A.A.F. 2007)).

Appellant avers the governme nt violated his right to a speedy trial by taking 131 days to refer his case to trial and an additional 14 days for arraignment. Appellant posits that the 65 days it took to comp lete the sanity board was not properly excluded by either the SPCMCA or the military judge. At trial and on appeal, appellant emphasizes that he did no t request the sanity board, did not agree to any excludable dela y for the sanity board, and sent four sp eedy trial requests to the government. Appellant also reques ted that the convening authority refer appellant’s charges and specifications prior to completion of th e sanity board.

The military judge adopted the partie s stipulated chronology as outlined above. Since the parties stipulated to th e chronology and facts, the military judge’s use of the chronology in fo rming his factual findings was not clearly erroneous. After reviewing the record, this court also adopts the stipulated chronology; however as discussed previously, we find that the speedy trial cloc k stopped on 11 December

2014.

As a starting point, R.C.M. 707(c) allo ws for the exclusion of pretrial delay when approved by a military judge or convening authority. Furthe r, the decision to grant or deny such a de lay is left to the sole discretion of the person authorized to grant it. Enumerated in the discussion as a reas on to grant a delay includes “time to allow examination into the mental capaci ty of the accused. ” R.C.M. 707(c)

discussion. That is exactly what happened in this case. The SPCMCA ordered an inquiry into the mental capacity of the accused on 22 September 2014. Being fully cognizant of the importa nce of time, he delibe rately wrote “[t]ime is of the essence,” and ordered the completion of the board “as soon as poss ible... no later than 24 November 2014.” The completi on of the sanity board nece ssarily required pretrial delay, a delay gr anted by the very c onvening authority authorized to grant excludable delay. It is axiomatic this delay is excludable.

Appellant contends that th e SPCMCA improperly exclud ed the 65 days for the sanity board after referral. Appellant points to the SPCMCA’s 17 December 2014 MFR as proof that the 65 da ys pretrial delay for the sanity board was improperly

authorized after referral. It matters not on what date the MFR was written, or that it

was written at all. The SPCMCA was authorized to both order a sanity board and grant excludable delay for that purpose. It is evident that is what he did. The MFRWORLDS-ARMY 20150134

5 simply reduced to writing, to clarify for the record and motions hearing, the

aforementioned facts.

Appellant contends the military judge al so erred in his ru ling by not himself excluding the 65 days pretrial for the sanity boar d, which he was au thorized to do. In the military judge’s written ruling, he did not specif ically exclude th e 65 days it took to complete the sanity board. In stead, the military judge concluded that although the more than tw o months was not “optimum ,” the government acted reasonably in waiti ng between 22 September 2014 and 26 November 2014 for completion of the R.C.M. 706 sanity board. Overall, in analyzing pretrial delay prior to arraignment, the military judge fo und that the government acted reasonably between 1 August 2014 and 11 December 2014 when the court received the referred charges. After receiving the charges on 11 December 2014 and considering the transportation of appellant from the Joint Base Lewis-McChord Joint Confinement Facility to Alaska, the military judge found that ap pellant’s arrai gnment was timely and denied appellant’s motion to di smiss for violating speedy trial.

In reviewing the record, we also conclude that appe llant was not denied his right to a speedy trial. The delay for completion of the sanity board was reasonable

and is an aut horized reason for a delay under R.C.M. 707. United States v. Denner

, 24 M.J. 731 (Army Ct. Crim. App. 1987) (time li mits “could have a tendency to limit proper mental examinati ons of patients who have been charged with offenses.”) Therefore, we find 65 days of pretrial delay is exclud able for completion of the sanity board. The cour t also finds 7 days of pretrial delay is excludable for the defense request to delay th e Article 32(b) hear ing (between 15 September 2014 and the SPCMCA’s 22 September 2 014 sanity board request). After excluding 65 days for the sanity board process and the 7 da ys pretrial delay fo r the Article 32(b) hearing, this court finds it took 60 days for the government to bring appellant to

trial. 4 We also note that afte r arraignment, appe llant requested a co ntinuance of the trial date. Appellant was not denied his right to speedy trial.

B. Dilatory Post-Trial Processing

Appellant asserts there was dilatory post-trial processing of appellant’s case. Since appellant did not request any delays to submit R.C.M. 11 05 matters, the entire 330 days between trial and th e convening author ity action is attr ibutable to the government. The record in this case consis ts of ten volumes, an d the trial transcript

4 There were a total of 132 days between 2 August 2014 and 11 December 2014 (less 65 days excludable delay for the sanity boar d results and 7 days of defense delay for the Article 32(b) hearing).WORLDS-ARMY 20150134

6 is 781 pages. The go vernment took 76 days to transcri be the record of trial and to

serve the record fo r authentication.

Although we find no due process violation in the post-trial processing of appellant’s case, we must still review the ap propriateness of the sentence in light of the post-trial processi ng. 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 an d sentence ‘should be approved,’ base d on all the facts

and circumstances reflected in the r ecord, including th e 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 (A rmy Ct. Crim. App. 2000).

Considering the seriousnes s of the charges for whic h he was found guilty, appellant’s sentence is appropriate. Furthermore, during the 120 days between appellant being served the authenticated record of tr ial and Staff Judge Advocate Recommendation (SJAR) and appellant’s submission of R.C.M. 1105 matters, appellant did not request sp eedy post-trial proces sing. Based on all the facts and

circumstances reflected in the record of trial, to include appellant’s choice to take 120 days to submit R.C.M. 1105 matters, we do no t find the post-tri al processing of appellant’s case renders the a pproved sentence inappropriate. Thus, we find relief is not appropriate under th e facts of this case.

CONCLUSION

The findings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: