## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class JOSEPH B. CAMPBELL United States Army, Appellant

ARMY 20140305

Headquarters, 1st Ca valry Division Rebecca K. Connally, Military Judge

Colonel R. Tideman Penl and, Jr., Staff Judge Ad vocate (pretrial)

Lieutenant Colonel Alison C. Martin , Staff Judge Advocat e (post-trial)

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

For Appellee: Li eutenant Colonel A.G. Courie, II I, JA; Major Melissa Dasgupta Smith, JA; Captain Christopher A. Clausen, JA (on brief).

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.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

A military judge sitting as a special court-martial, convicted appellant, pursuant to his pleas, of one specificat ion each of conspiracy to commit larceny of military property, lar ceny of military prop erty, housebreaking, and concealing stolen property, in violati on of Articles 81, 121 , 130, and 134 Unifor m Code of Military Justice, 10 U.S.C. §§ 881, 921, 930, 934 (2012) [h ereinafter UCMJ]. The military judge sentenced appellant to a bad-cond uct discharge and co nfinement for five months. In accordance with the pretri al agreement, the convening authority approved only three months of confinement but otherwis e approved the sentence as adjudged.

This case is before the court for review under Article 66, UC MJ. Appellant raises two allegations of error to this court. In the first assignment of errorCAMPBELL—ARMY 20140305

2 appellant asserts the military judge abused her discretion by accepti ng appellant’s guilty plea to the conspiracy, larceny, and housebreaking charges. In the second assignment of error, appellan t asserts that the government was dilatory in post-trial processing. Both assi gned errors warrant di scussion, and both merit at least partial

relief.

BACKGROUND

As part of the pretrial agreement, the pa rties stipulated to the relevant facts in the case. Appellant was assi gned to the 3d Cavalry Regi ment, 1st Cavalry Division, at Fort Hood, Texas. Appe llant’s primary occupationa l specialty (MOS) was 91C, Utilities Equipment Re pair. The charged offenses arose from appellant and two

other soldiers from his unit entering motor pools and motor pool bays on Fort Hood and stealing multiple item s of military property.

On 4 October 2013, appellant and the two other so ldiers “decided to break into unit motorpools 1 at night to take batte ries to sell to a sc rap and metal recycling center in exchange for cash.” The three soldiers had previously stolen military property to sell. That even ing, the three soldiers “traveled to a secluded motorpool” on Fort Hood. At the motor poo l, the soldiers “entered through a fence” and “took approximately 20 large vehicle batteries. ” They also took tools and an air compressor. The next day, the three sold iers sold the batteries to a scrap and recycling center for ca sh and “split the mone y amongst themselves.”

The three soldiers agreed to do the “s ame thing” the foll owing weekend. On 11 October 2013, the three soldiers travel ed to another motor pool on Fort Hood. After hiding their vehicles behind military vehicles, they “cut the lock off the gate and entered the motorpool in order to find batteries to steal.” They entered the “motorpool bay” and took approximately thir ty batteries. They selected the larger batteries “because they were worth more m oney.” The three soldiers also took two sets of jumper cables for military vehicles and three toolboxes . The soldiers stripped the jumper cables do wn to “clean copper to sell to the scrap yard.” Again the next day, the three soldiers sold the ba tteries to a scrap and recycling center for cash and split the money amongst themselves.

Afterward, the three soldiers disagree d on how they woul d split the money received from stolen property in the future . Appellant and one of the other soldiers

decided to exclude the third soldier “the next time they stole property.” On 12

1 The charges and stipulati on of fact reference “motor pool” and “motorpool bay.” The court prefers the spelling “motor pool” and “motor pool bay” but has kept the original spelling fo r consistency when discussing and quoting the language in the charges, specifications, and st ipulation of fact.CAMPBELL—ARMY 20140305

3 October 2013, appellant and one of the soldie rs, went to “their own unit motorpool to steal batteries to sell.” After again hiding their trucks, appellant and the other

soldier cut the lock off the fence and “ent ered the motorpool ba y.” Together, they stole “approximately fifty (50) large vehi cle batteries.” The two soldiers took the batteries to a scrap and recycling center to sell.

As part of the stipulation of fact, appe llant stipulated to the elements of the charged offenses contained in the specifications. Th e military judge advised appellant of the elements of conspiracy, larceny, ho usebreaking, and concealing stolen property offenses. Prior to accepting appellant ’s guilty plea, the military judge conducted a plea in quiry with the appellant.

LAW AND DISCUSSION

We review a military judge’s decision to accept a plea of gu ilty “for an abuse of discretion and questions of law arising from the gu ilty plea de novo.” United

States v. Inabinette , 66 M.J. 320, 32 2 (C.A.A.F. 2008); see also United States v. Murphy , 74 M.J. 302, 305 (C.A.A.F. 2015); United States v. Phillips , 74 M.J. 20, 21- 22 (C.A.A.F. 2015) (“Appellant bears the burden of establishing that the military judge abused [her] discretion.”). “[T]he abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range.” United States v. Gore , 60 M.J. 178, 187 (C.A.A.F. 2004) (citing United States v. Wallace , 296 U.S. App. D.C. 93, 964 F.2d 1214, 1217 n.3 (D.C . Cir. 1992)). A gui lty plea will be set aside on appeal only if an appellant can show a substantial basis in law or fact to question the plea. Gore, 60 M.J. at 187 (citing United States v. Prater , 32 M.J. 433, 436 (C.M.A. 1991)). The court applies this “substantial basis” test by determining whether the record raises a substantial qu estion about the factual basis of appellant’s guilty plea or the law underpinni ng the plea. Gore, 60 M.J. at 187; United States v. Barton , 60 M.J. 62, 65 (C.A.A.F. 2004) (“a guilty plea is less likely to have developed facts.”); see also UCMJ art. 45(a); Rule for Courts-Mar tial [hereinafter R.C.M.] 910(e).

A providence inqu iry into a guilty plea must establish that the accused

believes and admits he is guilty of the offense and the factual circumstances admitted by the accuse d objectively support the guilty plea. United States v.

Garcia , 44 M.J. 496, 497-9 8 (C.A.A.F. 1996); United States v. Davenport , 9 M.J. 364, 367 (C.M.A. 1980); UCMJ ar t. 45(a); R.C.M. 910(e). The record of trial must reflect not only that the el ements of each offense have been explained to the accused, but also "make cl ear the basis for a determin ation by the military trial judge . . . whether the acts or the omissions of the accused constitute the offense . . . to which he is pleading guilty." United States v. Care , 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969) . The stipulation of fact ca n provide an additional factual basis upon which to satis fy this requirement. Id. “If an accused sets up matter inconsistent with the plea at any time during the procee ding, the military judge mustCAMPBELL—ARMY 20140305

4 either resolve the apparent inconsistency or reject the plea.” United States v. Hines

, 73 M.J. 119, 124 (C.A.A .F. 2014) (quoting United States v. Goodman , 70 M.J. 396, 399 (C.A.A.F. 2011)) (interna l quotation marks omitted); see also UCMJ art. 45(a). “A military judge abuses his discretion if he neglects or chooses not to resolve an inconsistency or reject the inconsistent or irregular pleading.” United States v.

Schell , 72 M.J. 339, 345 (C.A .A.F. 2013) (quoting United States v. Hayes , 70 M.J. 454, 457-58 (C.A.A.F. 2012)). The military judge need only re ject the plea when the accused “persists in his statemen ts” that cause the inconsistency. United States v. Thompson, 21 U.S.C.M.A. 526, 5 27, 45 C.M.R. 300, 3 01 (1972). Where the possibility of a defense exis ts, a military judge should secure satisfactory disclaimers by the accused of this defense. Prater , 32 M.J. at 436 (citing United States v. Jemmings , 1 M.J. 414, 418 (C.M.A. 1976)).

“In determining on appeal whether there is a substantial inconsistency, this [c]ourt considers the ‘full context’ of the plea inqu iry, including [a]ppellant’s stipulation of fact.” Goodman , 70 M.J. at 399 (quoting United States v. Smauley , 42 M.J. 449, 452 (C.A.A.F. 1995 )). “This court must find a ‘substantial conflict between the plea and the accu sed’s statements or other evidence’ in order to set aside a guilty plea. The ‘m ere possibility’ of a conf lict is not sufficient.” Hines , 73 M.J. at 124 (quoting United States v. Watson , 71 M.J. 54, 58 (C.A.A.F. 2012)); United States v. Phillippe , 63 M.J. 307, 309 (C.A.A.F. 2006).

A. The Conspiracy Charge

On appeal, appellant contends that the military judge did not elicit sufficient facts to support that the conspiracy “was to commit not only a larceny but a larceny of military property greater than $500.” As a result, “[W]ithout these two statutory sentencing enhancers, the maximum punishme nt would have been six months and a bad-conduct discharge as opposed to ten years and a dishonorable discharge.”

The military judge went over the stipulation of fact with the appellant. The military judge also advise d appellant of the elements of conspiracy to commit larceny which in cluded larceny of milita ry property of a value over $500. However, the military judge neve r explicitly elicited from appellant whether the criminal agreement at inception included an agreem ent to steal more th an $500 of military property. Appellant describe d to the military ju dge that after the initial agreement on 4 October 2013, he remain ed party to the conspiracy and never attempted to withdraw from the conspiracy or abandon th e plan to steal mili tary property from motor pools.

The stipulation of fact established that prior to entering in to the agreement on 4 October 2013 appellant and the other two soldiers had previously “stolen military property to sell.” As a result, they would have gene rally known and understood the

value of the additional milita ry property they planned to steal. Base d on his dutyCAMPBELL—ARMY 20140305

5 location and assigned unit, appellant understood the items stored within a motor pool bay were military pr operty which belonged to the government.

On 4 October 2013, as pa rt of the conspiracy, ap pellant and the other two soldiers drove their vehicles to the motor p ools to haul away the items they sold to scrap and metal recycling cent ers. Appellant an d the other soldiers entered a motor pool and stole twenty large batteries, tools, and an air compress or. Appellant and the

other soldiers hauled these items of mi litary property to the scrap and metal recycling centers and sold the items knowing they were military property. After 4 October 2013, appellant criminal conspiracy continue d after the init ial agreement and they agreed do the “same thing” the fo llowing weekend as desc ribed earlier.

Overall, during the course of their co nspiracy, appellant and his counterparts cut gate locks, entered motor pools and motor pool bays, and stole approximately 100 “large” batteries, tools, three tool boxes, air comp ressors, and two sets of jumper cables. Appellant and the other so ldiers stripped the cables “down to clean copper” to sell the cables to scrap and me tal recycling centers. Appellant and the

other soldiers sold the batteries alone fo r approximatel y $6,000, an amount far in excess of $500 and 12 00% above the legal threshold for increased punishment.

Appellant’s statements during th e providence inquiry for larceny, supplemented by the stipulation of fact, es tablished that he und erstood the value of the items that they conspired to steal wa s over $500 and were in fact military property. During the providence inquiry fo r the larceny charge, which was the object of the conspiracy , the military judge ex plicitly elicited from ap pellant that he knew the property stolen was more than $500 in value and was military property.

The conspiracy specificati on alleged all the elements of the offense charged, appellant pleaded guilty to the specification, the providence inqui ry established that the appellant believed he was guilty, and the f actual circumstances revealed by the appellant objectively support the guilty plea. Having exam ined the “full context” of the plea inquiry, to include appellant’s responses during the entire colloquy to the larceny charge, and the stipul ation of fact, and appellant’s sentencing case, we find no substantial basis to question his plea of guilty. Theref ore, the appellant's plea to the Specification of Ch arge I was provident.

As the appellant has shown no substantial basis in law or fact to question his pleas of guilty, we co nclude that the military judge did not abus e her discretion in accepting appellant’s pleas. See Inabinette , 66 M.J. at 322.

B. The Larceny Charge

Appellant contends that th e military judge abused he r discretion in finding appellant provident to the larceny charge. Appellant states that the stipulation ofCAMPBELL—ARMY 20140305

6 fact was separated into three separate larcenies while appellant pleaded guilty to one larceny “event” consis ting of all the st olen items (batteries, tool boxes, air compressors and jumper cables). Appellant contends that it was error for him to plead guilty to stealing spec ific items of mili tary property duri ng one transaction while he stipulated to different items during different times.

It is correct the stipulation of fact was broken into thre e paragraphs that addressed the factual bases for three separa te larcenies (on or about 4 Oct ober 2013, 11 October 2013, and 12 October 2013). It is also correct that the single charge

covered all the items of U.S. Army property stolen betw een on or about 4 October

2013 to 17 October 2013. No rmally, this cour t is confronted with the opposite criticism about the g overnment’s charging decision. If the government had charged all three larcenies separately, it may ha ve prompted a clai m of unreasonable multiplication of charges. 2

Instead, we now address whether the charges were duplicitous. “One specification should not allege more than one offense.” R.C.M. 307(c)(3) discussion (G)(iv). However, if two acts or a series of acts constitutes one offense, they may be alleged conjunctively. Id. The remedy for a duplicitous specification is to file a motion to sever the specifications into two or more specifications. R.C.M. 906(b)(5). Prior to entering his guilty pl ea, appellant never raised to the trial court any objections to the larceny charge as drafted or ob jections to the wording of the stipulation of fact. “An un conditional guilty pl ea generally waives all pre-trial and trial defects that are not jurisdictional nor a deprivation of due process of law.”
United States v. Schweitzer , 68 M.J. 133, 136 (C.A .A.F. 2009) (quoting United

States v. Rehorn , 9 U.S.C.M.A. 487, 488-89, 26 C. M.R. 267, 268-69 (1958). We do not find any error or prejudice in how the government drafted th e larceny charge.

2 See, e.g., the explanatory text of Article 121 in the Manual of Courts-Martial provides guidance on what the government should consider when charging a “multiple article larceny”:

When a larceny of several articles is committed at substantially the same time and place, it is a single larceny even though the articles belong to different persons. Thus, if a thief steals a suitcase containing the prop erty of several persons or goes into a room and takes property belonging to vari ous persons, ther e is but one larceny, which shou ld alleged in but one specification.

Manual for Courts-Martial

, United States (2012 ed.) [hereinafter MCM ], Part IV, para. 46(c)(i) (ii)CAMPBELL—ARMY 20140305

7 Not severing the specification into three la rcenies was not prejudicial to appellant. 3
Regardless, reviewing the full context of the plea inquir y, to include appellant’s responses during the entire co lloquy to the larceny charge , the stipulat ion of fact, and appellant’s sentenci ng case, we find no substantia l basis to questi on his plea of guilty. The milit ary judge did not find any inconsistencies between the charged and admitted conduct and his guilty plea inquiry, and neither do we.

We find the appellant’s plea inquiry ade quately established he was guilty of the larceny charge. Both in the stipulatio n of fact and the pl ea inquiry, appellant established he stole U.S. Army property on three different da tes. Appellant’s providence inquiry esta blished he was guilty of steali ng batteries, to ol boxes, air compressors, and jumper cable s that were the pr operty of the U.S. Army. Appellant informed the military judge he worked in the motor pool, maintained vehicles, and knew the items were military property that belonged to th e U.S. government. In fact, appellant used the tools, batteries, and ju mper cables at the mo tor pool to maintain

the vehicles.

The specification alleged all the elem ents of the offense charged, the appellant pleaded guilty to the specificati on of larceny of milit ary property of a value more than $500, the providence inquiry established that the appellant believed he was guilty, and the fact ual circumstances revealed by the appellant objectively support the guilty plea. Theref ore, the appellant's plea to the Specification of Charge II was provident.

As the appellant has shown no substantial basis in law or fact to question his pleas of guilty, we co nclude that the military judge did not abus e her discretion in accepting appellant’s plea to the larceny charge. See Inabinette , 66 M.J. at 322.

C. The Housebreaking Charge

Appellant contends that th e military judge abused her discretion in accepting appellant’s plea to the Article 130, UCMJ, housebreaking charge because he never stated he unlawfully entere d a structure. In appella nt’s case, the housebreaking charge included an unlawful en try into both a “motorpool” and “motorpool bay” with the intent to commit a larceny. Article 130, UCMJ, pr ovides: “A ny person subject to this chapter who unlawfully en ters the building or structure of another

with intent to commit a criminal offense therein is guilty of hou sebreaking . . . .”

MCM , Part IV, para. 56c(4), discusse s the offense of housebreaking:

'Building' includes a room, shop, store, office, or apartment in a

3 The same analysis would ap ply to an argument that the housebreaki ng charge was duplicitous and should have been severed into three separate specifications.CAMPBELL—ARMY 20140305

8 building. 'Structure' refers only to those structures which are in the nature of a building or dwelling. Examples of these structures are a stateroom, hold, or other compartm ent of a vessel, an inhabitable trailer, an in-closed tr uck or freight car, a tent , and a houseboat. . . .

Our superior court recently decided the question of whether a motor pool can be the subject of an Article 130, UCMJ, ho usebreaking charge. United States v.

Wilson , 76 M.J. ___ (C.A.A.F. 2 017). The CAAF conclude d a fenced motor pool is

not a structure for house breaking purposes. Id . at *2. The Court of Appeals for the Armed Forces (CAAF) did aver that a motor pool bay can constitute a structure for housebreaking purposes: “Nei ther are [fenced motor pools ] ‘permanent structures,’

as the fences can be easi ly moved or removed, unli ke a motor po ol bay.” Id . at *6. We will modify appellant’ s housebreaking charge acc ordingly by excepting the words “a motor pool and” in our decretal paragraph. We hold the military judge did elicit the factual predi cate to rightly conclude that a “motor pool bay” in appellant’s case is a building structure for housebrea king purposes. We include definition and

discussion of “motor pool” to delineate the term fr om “motor pool bay,” which we also discuss in-depth.

A motor pool 4 is a customary military term used to describe an area, normally fenced, where military vehicles and e quipment are stored, accounted for, and

maintained. 5 A motor pool can include buildings and struct ures contained within the perimeter or gated area of th e motor pool. A “bay” is a customary military term that the Army uses to describe open areas cont ained within building s that are used for

4 Dep’t of the Army, Pam. 750-3, Soldier’s Guid e to Field Mainte nance Operations, para. 5-9 (18 Sept. 2013) (discusses motor pool safety, standard operating procedures (SOPs), security, and maintenance. For example, under para. 5-9, while in garrison, “vehicles and generators are ge nerally stored in un it motor po ols” and access to a motor pool is li mited.); Army Reg. 405-70, Utilization of Re al Property (12 May 2006) (“inside parking areas” is ga rage space that is used for parking of motor vehicles including mo tor pools and “light industr ial areas” are areas are normally not “directly associated with office space and attendant storage requirements incl uding....motor pool service areas.”).

5 Our superior court gives deference to the service courts’ interpretation of regulations issued by their own departments. United States v. Shavrnoch , 49 M.J. 334, 338 n.2 (C.A.A.F . 1998) (“giving sign ificant deference to the Courts of Criminal Appeals in the interpretation of the regulations issues by their own departments.”); United States v. Manuel , 43 M.J. 282, 29 7; (C.A.A.F. 1995); United

States v. Moultak , 24 M.J. 316, 318 (C.M.A. 1987); United States v. Johanns, 20 M.J. 155 (C.M.A). cert. denied . 474 U.S. 850 (1985).CAMPBELL—ARMY 20140305

9 habitation, storage, or to perform work functions. 6 Generally, a motor pool bay 7 is a building within the mo tor pool area where vehicles and equipment are also stored and protected from outside exposure and maintenance and repa irs are performed on military vehicles. As distinguished from fenced outside motor pool areas, motor pool bays are completely enclosed by wall s, roofs, and usua lly floors and the enclosed motor pool bay area is climate controlled with heating and air conditioning. 8

The charge of houseb reaking and stipulat ion of fact were unambiguously clear in describing appellant’s en try into both the motor pool and mo tor pool bay with intent to commit larceny. During the prov idence inquiry, the military judge clearly

made a distinction between un lawful entry into the motor pool and motor pool bay. The military judge, in explaining the elements, was clear that housebreaking required an unlawful entry into a building or structure. She defined a building as a room, store, or office and st ructures as including enclosur es similar to buildings and

6 See Army Reg. 420-1, Army Facilities Management, Rapid Action Revision (RAR) Issue Date 24 Augus t 2012 (An “open-bay fa cility” is a large r oom housing thirty to sixty people. Table 3-7, “open bay” living areas are authorized for E-1 through E-4 attending AIT/ASI and the “ope n bay comprises all the [sp ace] within the peripheral walls.”; National Guard Pam. 415-2, Army National Guard Fac ilities Allowances, dated 25 January 2015 (“Gene ral Purpose Work Bays (G PWB) are those in which mechanics repair, replace, or adjust the operational m echanisms of vehicles and equipment.” All work bays at a facility will be the same size (32 fe et x 64 feet) to

facilitate desi gn and construction); Army Regulation 140-483, Army Reserve Land

and Facilities Mana gement (24 July 2007) (“Work bays are au thorized ba sed on the number of automotive (wheeled and tracked) and engineer eq uipment mechanics.”).

7 The customary military term for “bay ” is consistent with the civilian meaning of “bay” as a building with an enclosed area. Merria m-Webster defines “bay” as “(1) a principal compartment of the walls, roof, or othe r part of a building or of the whole building; (2) a main division of a structure; (3) any of various compartments or sections used for a special purpose (as in an airplane, spacecraft, or service stat ion).” Merriam-Webster’s Co llegiate Dictionary 104 (11th ed. 2014).

8 When occupied as active working spaces “maintenance bays” will be heated or cooled to sixty degr ees Fahrenheit. Dep’t of the Ar my Pam. 415-28, Guide to Army Real Property Cate gory Codes (10 July 2013) (“Fo r facilities measurements of maintenance type facilities, a ‘single bay’ is 32 feet x 32 feet an d a ‘double bay’ is 64 feet x 32 feet.”). Th is guidance further supports that maintenance bays are enclosed buildings.CAMPBELL—ARMY 20140305

10 dwellings. Appellant stated he underst ood the elements of housebreaking required unlawful entry into a building or structure. Appellant in the stipulation of fact and providence inquiry admitted th at he entered three motor poo ls that were all fenced areas. For two of the motor pools, appell ant and the other soldiers had to cut locks off the gates in order to ente r. On two occasi ons, once inside th e fenced motor pool areas, appellant admitted to separately entering the moto r pool bay buil dings through

unlocked doors.

Appellant worked in the motor pool and maintained vehicles; he clearly

understood the distinction be tween a “motor pool” and “motor pool bay” when agreeing to the lang uage of the stipulation of fact and during his providence inquiry. 9 In his providence inquiry, appellant stated one of the motor pools and motor pool bays was his pl ace of duty duri ng the day, where hi s unit conducted formations, and his unit kept their property. Appellant elaborated on his familiarity with motor pool bays when he described in his unsworn statement that on his second deployment to Iraq he spent most of his ti me “in the shop worki ng the bay fixing air

conditioners.” The unlawf ul entry to commit larcen y in his unit’s motor pool and motor pool bay was also in cluded in the stipulatio n of fact.

The housebreaking specifi cation alleged all the el ements of the offense charged, the appellant plea ded guilty to the specificat ion, the provid ence inquiry established that the appellant believed he was guilty of un lawfully entering a building (“motor pool bay”) to commit a larceny, and th e factual circumstances

9 We do not and did not consider allied do cuments outside the record of trial to determine the factual or legal sufficiency of an appellant’s plea of guilty. United

States v. Cade , 75 M.J. 923 (Army Ct. Crim. App. 2016) (record of trial does not normally include allied documents). However, our interpretation he re is consistent with the pretrial investigat ion contained in the allied documents. Appellant made a sworn statement to CID and distinguished between motor pools an d motor pool bays. In the sworn statement, appellant stated on 11 October 2013, he and the other soldiers cut the locks to the back gate of a “motor pool.” Th e back door of the motor pool building was unlo cked. Appellant and the ot her soldiers entered the building, looked thro ugh the “bays,” and stol e batteries. On or about 12 October 2013, appellant and anot her soldiers cut the lock to another motor pool gate. They

entered an unlocked d oor to a building and searched a trailer in the “bay” for tools and equipment to steal. Appellant’s unadm itted sworn statement to CID in the allied documents, is an example of how a contested trial could have develope d additional facts about appellant’s unla wful entry into the moto r pool and mo tor pool bay.

United States v. Barton , 60 M.J. 62, 65 (C.A .A.F. 2004) (“a guilty plea is less likely to have developed facts”).CAMPBELL—ARMY 20140305

11 revealed by the appellant objectively su pport the guilty plea. Therefore, the appellant's plea was provid ent to “motorpool bays.”

In light of Wilson , we except the words “a motorpool and” in the Specification of Charge III in our decretal paragraph.

D. Dilatory Post -Trial Processing

The convening authority took action 347 days after the sentence was adjudged, all of wh ich are attributable to the government. The record in this case consists of two volumes, and the trial transc ript is 130 pages. The overall post-trial processing from sent ence to receipt by this court was particularly slow. For example, it took twenty-nine days to comple te the staff judge ad vocate’s Post-Trial Recommendation (SJAR), seventy-si x days to serve appellant the record of trial, and twenty-five days to complete the SJAR Addendum. 10 The time from action until the record was received by this court was 43 days. This am ounts to 227 days beyond the point where we presume unrea sonable delay in po st-trial processing at action and thirteen days more than is expected for receipt of th e record by this court. United

States v. Moreno , 63 M.J. 129, 142 (C.A.A.F. 2 006). The gover nment concedes there is no reasonable explan ation for the delay in either transcribing the record or in serving the authenticated record on appellant.

Appellant’s sentence to three months confinement was comp leted before he had an opportunity to submit his matters pu rsuant to R.C.M. 1 105/1106 [hereinafter Post-Trial Matters]. However, given his short sentence, appella nt would also have likely been released from confinement prior to action if the g overnment complied

with the Moreno post-trial processing standards. Although we find no due process violation in the post -trial processing of appellant’s case, we will review the appropriateness of the sentence in light of unj ustified dilatory post -trial processing. UCMJ art. 66(c). See generally United States v. Toohey , 63 M.J. 353, 362-63 (C.A.A.F. 2006); United States v. Tardif , 57 M.J. 219, 224 (C.A.A.F.2002)

10 Appellant’s defense counsel took nineteen days to comple te review of the record of trial. The military judge took twenty -one days to complete the review of the record of trial. Contrary to the government’s position on appeal, we do not find the nineteen days shou ld be deducted from the government’s post-tr ial processing time. A reasonable length of time for review of the record of tr ial by defense counsel would normally be built in as part of the Moreno -presumed reasonable processing time of 120 days. If the amount of time defense counsel took to review the record was unreasonable, th en the government would not have to wait to comp lete post-trial processing once the r ecord of trial was authenticated by the military judge. Either way, the nineteen days wa s not deducted from the ov erall 390 day post-trial processing from sentence to receipt of the reco rd by this court.CAMPBELL—ARMY 20140305

12 (“[Pursuant to Article 66(c), UCMJ, service courts are] required to determine what findings and sentence “should be ap proved,” based on all the facts and

circumstances reflected in the record, includi ng the unexplained and unreasonable post-trial delay.”); United States v. Ney , 68 M.J. 613, 616–17 (Army Ct. Crim. App. 2010); United States v. Collazo , 53 M.J. 721, 727 (Army Ct . Crim. App. 2000).

The record of trial is only 130 pages and the case involves charges and matters of no great complicat ion. The government’s lack of explanation for its excessive delay in processing, in combination with the excessive time it took to deliver the record to this court, when cons idered in light of th e record as a whole,

convinces us that re lief is warranted. The governmen t concurs that appellant is

entitled to some relief. The unexplained delay betwee n announcement of sentence and action is simply too long. Thus, we find relief is ap propriate under the facts of this case and grant appellant th irty days confinement credit. 11

CONCLUSION

In light of Wilson , we AFFIRM the Specification of Charge III and Charge III

as follows:

In that [appellant ] did, at or near Fort Hood, Texas,

between on or about 4 Octo ber 2013 and on or about 17 October 2013, unlawf ully enter a moto r pool bay, the property of the U.S. Arm y, with intent to commit a criminal offense, to wit: larceny, therein.

We AFFIRM the remaini ng findings of guilty.

11 The co-accused in this ca se similarly received thirty days confinement credit for the unexplained and unreasonable post -trial delay in their cases. United States v.

Krause , 2015 CCA LEXIS 189, ARMY 20140388 (Army Ct . Crim. App. 9 Apr. 2015) (sum. disp.) (thirty days confinement credit for 204 days post-trial delay from sentence to action to process a 124-page reco rd of trial); United States v.

Bettencourt , 2016 CCA LEXIS 28. ARMY 20140284 (Army Ct . Crim. App. 21 Jan 2016) (sum. disp.) (thirty days confinement credit for 293 days post-trial delay from sentence to action to process a ninety-seven page record of trial) (sum. disp). Private First Class (PFC) Bettencourt and Private (PV2) Krause were tr ied by general courtmartial. Private First Clas s Bettencourt was c onvicted and his a pproved sentence included a bad-conduct discharge, twenty-six (26) months confinement, total forfeiture of all pay and al lowances and reduction to the grade of E-1. Private

Krause was convicted and his approved se ntence included a bad- conduct discharge, confinement for eight months, and re duction to the grade of E-1.CAMPBELL—ARMY 20140305

13 We are able to reassess the sentence on the basis of the errors noted and do so after conducting a thorough analysis of the totality of circum stances presented by appellant’s case and in accordance with th e principles articulat ed by our superior

court in United States v. Sales , 22 M.J. 305 (C .M.A. 1986) and United States v.

Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013) . After considering the entire record and given the dilatory post-trial processing, however, we AFFIRM only so much of the sentence as provides for a bad-conduct discharge and confinement for two months. All rights, pr ivileges, and property, of which appellant has been deprived by virtue of that portion of the findings a nd sentence set aside by this decision, are orde red restored. See UCMJ arts. 58a(b), 58b(c) and 75(a).

Senior Judge MULLIGAN concurs.

Judge WOLFE concurring in part and dissenting in part.

I approach the issue of po st-trial delay differently from my colleagues, and

therefore reach a different result. This case, perhaps uniqu ely, exemplifies our differing approaches. I ad dress here only cases of post-trial delay that do not
amount to a violation of the due process ri ghts of appellant.

Under Article 66(c), UCMJ, as I understa nd it, this court may only approve a sentence that “should be ap proved.” A sentence may be correct in law and fact but still be inappropriate. As our review is no t omnidirectional, it essentially means that we reduce sentences that in our judgement are too high. In other words, when we conduct a sentence appr opriateness review we are, in e ffect, only reviewing to see if

a sentence is too severe. 12

If the sentence is just outright too seve re, our duty is to lower the sentence such that it “should be approv ed.” In such a cas e, no allegation of error is required to trigger a remedy. Although such relief is empirically rare, it is a review we conduct in each and every case regardless of whether there is an issue of post-trial delay.

In the case where there is unreasonable post-trial dela y, we then face a second question: Did the unre asonable delay turn what was an appropriate sentence for appellant’s crimes into an inappropriate sent ence? Or, in this ca se, is three months

of confinement too severe a punishment given appellant’s offenses, the sentencing evidence, and the unreasonable delay by the convening authority?

12 Taking into account that th e trial court saw and heard the witnesses. UCMJ, art. 66(c).CAMPBELL—ARMY 20140305

14 The majority, by contrast, appears to tr eat post-trial delay ak in to Article 13, UCMJ, credit. An unreasonab le delay of a cert ain amount equates to some degree of

sentence reduction. This approach has the advantag e of initially appearing consistent. However, to me this case illustrate s why the majority’s approach is an inconsistent application of Article 66(c), UCMJ.

In a related case, this co urt approved a sentence for PFC Bettencourt that is over twelve times longer than the sent ence we approve today. Perhaps this difference can be explained by differences in the record. Or, the discrepancy could reflect that judges on this court must exercise judgment an d will naturally not always arrive at the same decision. If, on the other hand, we arrive at these differences in approved sentences because we have been treating relief for post-trial sentencing as akin to Article 13, UCMJ, credit; then I th ink this misstates our role under Article 66, UCMJ. If a two-month sentence (or thereabouts) should be approved here, then absent some difference in the record it should have been the approved sentence for PFC Betancourt. Or , alternatively, if twenty-five months was an appropriate sentence for PFC Betancourt ev en considering the post-trial delay in his case, than we should approve appellant’ s three month sentence. As PFC Bettencourt’s case is not before us, I compare the cases only to illustrate the differences in approach and reach no actual conclusion on any case other than the

one at bar.

Accordingly, I take the following approach in this case. I review the appropriateness of appellant’s sentence holistically. I do not find appellant’s sentence of three months confinement to be inappropriate, given his offenses, the evidence introduced at trial, and even co nsidering that there was unreasonable posttrial delay in this case. Wh ile the unreasonable post-trial delay in this case reflects poorly on those who caus ed it by action or indifference, it did not make appellant’s

sentence of three months confinement and a bad-conduct discharg e inappropriate. I

would affirm the senten ce as approved by th e convening authority.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: