## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CAMPANELLA, and CELTNIEKS Appellate Military Judges

UNITED STATES, Appellee

v. Specialist JOSH HARRIS United States Army, Appellant

ARMY 20120922

Headquarters, III Corps an d Fort Hood (pretrial) Headquarters, Fort Hood (post-trial)

Gregory A. Gross, Military Judge Colonel Stuart W. Risch, Staff Judge Advo cate (advice and recommendation) Colonel Richard W. Rousseau, St aff Judge Advocate (addendum)

For Appellant: Colone l Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA; Major Vincent T. Shuler, JA; Major Ja ired D. Stallard, JA (on brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L. Varley, JA; Major Steven J. Collins, JA; Captain Carling M. Dunham, JA (on brief).

28 August 2014

---------------------------------- SUMMARY DISPOSITION

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Per curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to hi s pleas, of one specif ication of conspiracy to commit robbery, two specifications of robbery, on e specification of forcible sodomy, on e specification of assault, and one specificatio n of kidnapping, in violatio n of Articles 81, 122, 125, and 128, Uniform Code of Mi litary Justice, 10 U.S. C. §§ 881, 922, 925, 928, 934 (2006). The military judge sentenced ap pellant to a dishonorable discharge, confinement for fifty-two years, forfeiture of all pay and allo wances, and reduction to the grade of E-1. The convening auth ority approved nine ye ars of confinement

and the remainder of the sentence.

This case is before us for review pursuant to Arti cle 66, UCMJ. Although not raised by the parties, we find that appellant improvidently entere d a guilty plea toHARRIS—ARMY 20120922

2 kidnapping in violation of Ar ticle 134, UCMJ, un der a Clause 1 theo ry of liability.

We affirm that conviction solely on the basis of service-discred iting conduct under Clause 2. Additionally, appella nt, in his sole assignment of error, asks this court to provide appropriate re lief to remedy the dilatory post -trial processi ng of his case. 1
We agree that relief is appropriate in this case and grant 30 days confin ement credit.

LAW AND DISCUSSION

A. Appellant’s Guilty Plea to Kidnapping under a Clause 1 Theory of Liability.

“During a guilty plea inquir y the military judge is ch arged with determining whether there is an adequa te basis in law and fact to support th e plea before accepting it.” United States v. Inabinette , 66 M.J. 320, 321– 22 (C.A.A.F. 2008) (citing United States v. Prater , 32 M.J. 433, 436 (C.M.A. 1991)). We review a military judge’s decision to accept a plea for an abuse of discre tion by determining

whether the record as a whole shows a substantial basis in law or fact for questioning the guilty plea. Id. at 322; UCMJ art. 45; Ru le for Courts-Martial 910(e).

Appellant pleaded guilty, among other offenses, to kidn apping and “said conduct was to the pr ejudice of good order and discipline in th e armed forces and was of a nature to bring discredit upon th e armed forces,” a vi olation of Clauses 1 and 2 of Article 134, UCMJ. 2 See Manual for Courts–Martial, United States (2008 ed.) [hereinafter MCM ], pt. IV, ¶¶ 60.c.(2), (3). As our superior court recently reiterated, “[t]he . . . clauses of Article 13 4 constitute ‘. . . distinct and separate parts.’” United States v. Fosler , 70 M.J. 225, 230 (C.A.A.F. 2011) (quoting United
States v. Frantz , 2 U.S.C.M.A. 161, 163, 7 C.M.R. 37, 39 (1953)) . It follows, then that “[v]iolation of on e clause does not nece ssarily lead to a violation of the other . .

. .” Id . More pertinent to the cas e before us, the court in Fosler went on to state that “disorders and neglects to the prejudice of good or der and discipline” are not synonymous with “conduct of a nature to bring di scredit upon the ar med forces . . .

.” Id . Thus, if a specification alleges both Clause 1 and 2, then there must be a

substantial basis in fact in the record to support a finding of guilty as to both.

Here, the military judge properly defined prejud icial to good order and discipline as “conduc t which causes a reasona bly direct and obvious injury to good order and discipline.” See also MCM , Part IV, ¶ 60.c.(2)(a). The stipulation of fact

is silent as to how appellant’s conduct viol ated either Clause 1 or Clause 2. When

1 The matters personally submit ted by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982 ) are without merit.

2 This offense cons tituted Specification 1 of Charge VI.HARRIS—ARMY 20120922

3 asked why his conduct violated Clause 1, appellant answered, “B ecause I know what I did was wrong.” Immediat ely thereafter, the military judge replied, “I think probably here what would be most appropriate would be the ‘discredit upon the armed forces.’” When asked why his cond uct was service-disc rediting, appellant responded that it could “make people afraid of [s]oldiers . . .” and might hurt the reputation of the service. The military judge found appellan t guilty of kidnapping

under both Clause 1 and Clause 2 theo ries of liability.

Given this providen ce inquiry and stipulation of fact, we find a substantial basis in fact to question th e providence of appellant’s guilty plea to kidnapping under a Clause 1 theory of liability. Ap pellant’s statement “I know what I did was wrong” does not establish a reasonably direct and obvious injury to good order and discipline. On the other hand, the record establishes the prov idence of his guilty plea to kidnapping un der a Clause 2 theory of liability, and we accordingly affirm

his conviction on those grounds.

B. Dilatory Post-T rial Processing

The convening authority took action 380 days after the sentence was adjudged. The record in this case consists of one volume, and th e trial transcript is 113 pages. 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 unjustified dilatory post-trial processing. UC MJ 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 find ings and sentence ‘should be approved,’ based on all the facts and circum stances reflected in the record, including the unexplained and unreasonable post-trial delay.”). See generally Unit ed States v. Toohey , 63 M.J. 353, 362-6 3 (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 (Army Ct. Crim. App. 2000). It took 226 days to transcribe th e record in this case. Appellant requested speedy po st-trial processing, and the convening authority took

action over six months later. Furthermore, it took ne arly two months after action to

mail the record to this court. While th e government has expl ained the reasons for delay, we find that thes e reasons are unreasonable under the totality of

circumstances.

CONCLUSION

Upon consideration of the entire reco rd, including the matters submitted
pursuant to Grostefon , we affirm only so much of Specification 1 of Charge VI as

follows:

In that [appellant], U.S. Arm y, did, at or near Killeen, Texas, between on or about 3 August 2012 and 4 AugustHARRIS—ARMY 20120922

4 2012, willfully and wrongfully seize, confine, and hold Ms. [MM], a person not a minor, against her wi ll, and that

said conduct was of a nature to brin g discredit upon the

armed forces.

The remaining findings of guilty are AFFIRMED. We are able to reassess the

sentence on the basis of th e amended findings, and do so after conducti ng a thorough analysis of the totality of circumstance s presented by appellant’s case and in accordance with the prin ciples articulated in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales , 22 M.J. 305 (C .M.A. 1986). In evaluating the Winckelmann factors, we first find no change in the penalty landscape or the grav amen of appellant’s criminal conduct. Second, appellant pleaded guilty in a judge-alone court-martial. Ultimately, we ar e convinced that the military judge would have adjudged the same sentence had he only convicted appellant of kidnapping unde r a Clause 2 theory of criminality.

However, given the dilatory post-trial processing, we affirm only so much of

the sentence as extends to a dishonorable discharge, conf inement for eight years and eleven months, total forfeiture of all pay and allowances, and re duction to the grade of E-1. All rights, pr ivileges, and property, of which appellant has been deprived by

virtue of this decision sett ing aside portions of the findi ngs and sentence are ordered

restored. See UCMJ arts. 58a(b), 58b (c), and 75(a).

FOR THE COURT:

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

Clerk of Court FOR THE COURT: