## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 CARLOS A. GONZALES-GOMEZ United States Army, Appellant

ARMY 20121100

Headquarters, III Co rps and Fort Hood Patricia H. Lewis, Mili tary Judge (arraignment) Gregory A. Gross, Mi litary Judge (trial) Colonel Stuart W. Risch, Sta ff Judge Advocate (pretrial) Colonel Ian Corey, Staff Judge Advocat e (post-trial)

For Appellant: Li eutenant Colonel Ch arles D. Lozano, JA ; Major Aaron R. Inkenbrandt, JA; Captain Nichol as J. Larson, JA (on brief).

For Appellee: Colonel Mark A. Sydenham, JA; Major Daniel D. Derner, JA; Captain Christopher A. Clause n, JA (on brief).

30 November 2016

-------------------------------- OPINION OF THE COURT

-------------------------------- MULLIGAN, Senior Judge:

For the same act, the gov ernment charged appellant with forcible sodomy, abusive sexual contact, and wrongful sexua l contact. After the panel returned a guilty verdict to all three specifications, the government moved that the sexual

contact offenses be dismisse d as being unreason ably multiplied. The military judge

denied the motion. In his fi rst assignment of erro r, appellant asks us to do what the trial judge did not. The gov ernment on appeal does not oppose appellan t’s requested

relief.

In his second assignmen t of error, appellan t asks this court to provide relief for the 641 days it took to complete the post-trial processi ng of his case. This delay,

which is over five times wh at is presumptively reasonab le, reflected the six months

it took to mail appellant his copy of the record of trial and draft an d sign the staff judge advocate recommendation (SJAR). The government agr ees appellant is

entitled to relief.GONZALEZ-GOMEZ – ARMY 20121100

2 BACKGROUND

A panel convicted ap pellant, contrary to his pl eas, of one specification of willfully disobeying a noncommissioned office r, four specifications of false official statement, one specificatio n of engaging in an indecen t act, one specification of abusive sexual contact, one specificatio n of wrongful sexua l contact, and one specification of forcible so domy in violation of Arti cles 91, 107, 120, and 125, Uniform Code of Military Ju stice [hereinafter UCMJ], 10 U.S.C. §§ 891, 907, 920, 925 (2006 & Supp. IV 2011). The panel se ntenced appellant to a dishonorable discharge and confinement fo r six years. The convening authority approved the adjudged sentence.

Appellant, a twenty year-o ld soldier on his first deployment to Afghanistan,

befriended and formed a close relationship with the vict im, Private (P V1) DHR. The two soldiers were apparently initially draw n together as non-native English speakers (appellant is from Mexico whereas PV1 DHR is from Peru). Duri ng the deployment they were virtually inseparable. The deployment caused PV1 DHR some psychological issues and his unit eventu ally redeployed him back to the rear detachment at Fort Hood. Ap pellant, distraught that hi s friend was gone, made three attempts at suicide by taking a combination of Motrin and Tylenol. After the third suicide attempt, appellant’ s command redeployed him back to Fort Hood and assigned him to the rear detachment.

The rear detachment back at Fort Hood had six soldiers, including appellant and the victim. The commander, determin ing that appellant and the victim were likely to get each other in to trouble in the lightly-supervised rear detachment, directed a “No Contact” order that prohi bited appellant and PV1 DHR from having

contact with each other. The order was is sued, poorly enforced, and had little effect on keeping the two soldiers apart or out of trouble. Appellan t and the victim ate together, went to the gym together, spent ni ghts together in each other’s rooms, and traveled together on holidays to visit eac h other’s families.

Appellant planned to go with PV1 DHR to New York City for New Year’s Eve. When appellant submit ted his pass request, he fals ely told his fi rst sergeant that he was going to Austin, Texas. Appe llant had duty on New Year’s Day and, to avoid detection of his absence, paid anothe r soldier to cover hi s duty. When that soldier failed to appear for duty, the unit noti ced appellant’s absence and attempted to reach him. Appellant, who was in the New Jersey/N ew York metropolitan area,

lied to a noncommissioned officer several ti mes as he attempted to conceal his actual

location. He first stated th at he was in Austin but stra nded without a ride. When the unit informed him they were sending a driver for him, he changed his story to state

he was in California at his father’s house. Appell ant attempted to fly home on a stand-by basis to avoid detect ion but returned to his unit on his pr eviously scheduled return flight on 2 January 2012.GONZALEZ-GOMEZ – ARMY 20121100

3 While appellant was in the New York area, he and th e victim attended a $200

all-inclusive food and drink New Year’s Eve party. Appellant “d id not drink a lot,”

while the victim drank to exce ss. When they returned to their lodging after a late night of partying and drinking, the vic tim laid down fully clot hed and “passed out.” While PV1 DHR was unconscious, appell ant licked PVT DHR’s anus and then inserted his penis into PV1 DHR’s rectum. The victim was unawar e at the time this

sexual activit y occurred.

Several months later, appellant was di agnosed with anal warts. Appellant then told the victim that “maybe he shou ld get checked [for a sexually transmitted infection.]” The victim demanded to know why he should get checked. After learning about the anal sex over New Year’s Ev e, the victim drove appellant to the military police station and reported a sexual assault.

LAW AND DISCUSSION

A. Unreasonable Multip lication of Charges

After the panel announced findings, the government ma de a motion to dismiss the alleged abusive sexual co ntact and wrongful sexual co ntact, Specifications 2 and 3 of Charge III. The gov ernment argued the specifi cations were unreasonably multiplied with the finding of guilt for forcible sodomy, the Specific ation of Charge IV. Although not expl icitly stated, the gove rnment charged the two sexual contact offenses as quasi-lesse r-included offenses to the forcible sodomy. 1

While denying the government’s motion to dismiss the specifications, the military judge merged all three specifica tions for purposes of sentencing. The military judge stated his re ason for merging and not dismissing the specifications was to preserve the conviction s of the sexual contact offens es for appeal in the event the forcible sodomy offe nse was found to be insufficient. That is, had the military judge set aside the sexual co ntact offenses, he was conc erned that if a future reviewing or appellate auth ority dismissed the forcible sodomy charge the accused would receive an appellate windfall. Given that this court conducts a de novo review for factual and lega l sufficiency, such concer ns are not unfounded.

Although the military judg e may have avoided the po ssibility of an unjust appellate windfall, by not di smissing the specifications at trial, he created new problems. When appellant’s trial ended, he stood convicted of three specifications

of sexual misconduct for one act. There appears to be universal agreement that only a single specification was appr opriate and legally correct.

1 Strictly speaking, they are not lesser-included offenses, see United States v.

Jones , 68 M.J. 465 (C.A .A.F 2010), hence why they needed to be separately charged.GONZALEZ-GOMEZ – ARMY 20121100

4 Recently our sister court addressed this same conundru m and provided the following guidance to military judges:

When a military judge is pr esented with findings that

reflect an unreasonable mult iplication of charges that cannot be adequately addresse d by merging the charges for sentencing purposes, the milit ary judge must then decide

whether to consolidate or dismiss the affected specifications. This is a signific ant decision that should be carefully considered by the military judge. Specifically, consideration should be give n to what happens if, on appeal, the remaining offense is set aside.

United States v. Thomas , 74 M.J. 563 (N-M. Ct. Crim. App. 2014). We agree. But

we note several da ngers in saving the issue for appeal.

First, military justice practitioners can not assume uncorrected issues of unreasonable multiplication of charges will be corrected on appeal. Appellate review may be waived or withdrawn. See UCMJ art. 61. Depending on the approved sentence, this court may not ha ve appellate jurisdiction over the courtmartial. See UCMJ art. 66(b). Moreover, we do not presume the appellate process, robust as it may be in military appeals, will catch every error.

Second, even assuming we correct the issue on appeal, during the pendency of the appeal appellant stands convicted of more offenses than is just under the

circumstances.

Third, by not ruling on the motion on its merits, the military judge deprived

this court of his an alysis of the substa ntive issue. While we conduct a de novo

review of the record of trial under Ar ticle 66(c), UCMJ, it does not me an our review is not informed by the decisi ons and analysis of the trial court. A military judge presiding over the trial is often better po sitioned to address, for example, whether the specifications were charged in the alte rnative, represent go vernment overreach, or adequately address appellant’s crimes. See United States v. Quiroz , 55 M.J. 334 (C.A.A.F. 2001).

Lastly, as a matter of judicial economy, it is ine fficient to intentionally save for appellate litigatio n issues that can be ea sily addressed at tria l. One of the most common assignments of error at this court are claims of unreasonable multiplication of charges. What can easily be resolv ed at trial through a motion by parties intimately familiar with the record becomes, on appeal, the routine requirement to

address these issues with the not insubstan tial attention of appell ate counsel and this court. To the extent that appellate resour ces are not infinite, this factor weighs in favor of saving for appeal only thos e issues where there is a matter in dispute.GONZALEZ-GOMEZ – ARMY 20121100

5 The Navy Court in Thomas revived a possible solution:

Dismissal of [the unreasonably multiplied] offense in favor of the remaining greater offense may be the appropriate remedy where the unreasonably multiplied offenses stand in a greater-lesser relationship. In other cases, consolidation may be the more appropriate remedy as “the findings of gu ilty as to [consolidated] specifications are not affected because they still apply to the portions of the specificati ons added to the remaining specification . . . .” United States v. Sorrell, 23 M.J. 122, 122 n.1 (C.M.A. 1986) . Consolidation is accomplished by simply combining the oper ative language from each specification into a single specification that adequately

reflects each conviction.

When consolidation is impracticable, such as when the guilty findings involve viola tions of different UCMJ articles, military judges should consider a conditional dismissal of one or more findings. Conditional

dismissals “become effective when direct review becomes final in the manner described in Article 71(c), UCMJ” and therefore “protect the inte rests of the Government in the event that the remaining charge is dismissed during [appellate] review.” United States v. Britton , 47 M.J. 195, 203-05 (C.A.A.F. 1997) (Effron, J., concurring).

Thomas , 74 M.J. at 569.

We agree with the Thomas court’s solution. The mi litary judge’s action in

this case does not strike us as unusual. As a routine issu e presented to the court, and because the possibility of repe titive harm is not slight, we determin e that appropriate action for a trial judge when presented with a motion fo r unreasonable multiplication of charges that cannot be ad equately addressed by merger may be to “conditionally dismiss” the suspect specifications. A cond itional dismissal of a specification is a dismissal of a specification conditioned on the remaining specifi cation(s) surviving final appellate review. See UCMJ art. 76 (“Finality of pr oceedings, findings and sentences”); UCMJ art. 71(c) (definition of final judgment as to legality of proceedings). Of course, noth ing in this opinion should be construed as preventing a military judge from dismissing a specifi cation outright when warranted. Whether a

dismissal for unreason able multiplication of charges should be conditional lies within the sound discretion of the trial judge.

A conditional dismissal ensures the promulgating order appropriately reflects appellant’s crimes, preserves the governmen t’s interests on appe al, and serves the interests of judicial economy. A conditional dism issal also places an appellant onGONZALEZ-GOMEZ – ARMY 20121100

6 notice of the consequences if, for exampl e, the remaining specification does not survive appellate review (i .e. the condition is met). 2 Recently, for example, in United States v. Parker, 75 M.J. 603 (N-M. Ct. Cr im. App. 2016), the court dismissed a rape conviction and revived a conditionally dismissed specification alleging a sexual assault.

The threshold issue discus sed above involved the act ions of the military judge. We find the three specifications at issue to be unrea sonably multiplied. See Quiroz , 55 M.J. at 337. Accordingly, we di smiss two of them in our decretal paragraph.

B. Dilatory Post-Trial Processing

The convening authority took action on appellant’s case 641 days after the panel sentenced appellant on 30 November 2012. The re cord of trial contains no explanation why the transcri ption of the 765-p age, six volume record of trial required 406 days. It required an additi onal 180 days to pl ace the authenticated

record of trial in the mail to be served on appellant. The SJAR was not signed until 1 September 2014, 610 days after appellant’s court- martial. The government concedes on appeal it ha s no reasonable explanation for the delay in either transcribing the record or in serving the authenticated record on appellant. 3

Although we find no due process viol ation in the post-trial processing of appellant’s case, we must still review th e appropriateness of the sentence in light of the unjustified dilatory post-tri al processing. 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 determin e what findings and sentence ‘should be approved,’ based on all the facts and ci rcumstances reflected in the record, including the unexplained and un reasonable 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 (Arm y Ct. Crim. App. 2010); United States v. Collazo , 53 M.J. 721, 727 (Army Ct. Crim. App. 2000).

2 The military judge should clearly state whether a dismissal is conditional. Assuming the convening authority appr oves the findings as adjudged, the promulgating order should reflect th at the dismissal as conditional.

3 There are two key parts to post-trial proc essing. Part one is the production of a record of trial and the authentication by the military judge. Once the record is authenticated, the staff judge advocate owns and controls the second part of the process, which starts with service of the SJAR on the accused. The 410 days required to produce this record of trial does not in any way justify the additional 190 days to sign the SJAR. The only plausible explanation for this extraordinary delay is a total lack of rigor and accountability in th e SJA’s office.GONZALEZ-GOMEZ – ARMY 20121100

7 The government concurs appellant is entitled to some relief. The unexplained delay between announcement of sentence and action is simply too long, and could “adversely affect the public’s perception of the fairness and integrity of military jus tice system . . . .” Ney , 68 M.J. at 617. Thus, we find relief is appropriate under the facts of this case and we w ill accordingly reduce appellant’s sentence by 180 days.

CONCLUSION

The findings of guilty of Specificatio n 2 and 3 of Charge III are set aside and DISMISSED. Upon consideration of th e entire record, the remaining findings of guilty are AFFIRMED. Given the dilato ry post-trial pro cessing, however, we affirm only so much of the sentence as provides for a dishonorable discharge and confinement for sixty-six months. All ri ghts, privileges, and property, of which appellant has been deprived by virtue of this decision setting aside portions of the findings and sentence, are ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

Judge FEBBO concurs.

Judge WOLFE concurring:

I join the majority opini on fully in all but one aspect. I would find that the

unreasonable and unexplained delay in this case constituted a violation of the due process rights of appellant. Although ade quately stated by the majority, the facts bear repeating.

It took 180 days after authentication to mail the case to appellant. An

administrative task that should take at most a few hours instead to ok six months. It took 190 days after authentication to draf t a two-page, routin e legal memorandum.

These delays reflect a lack of leadership, not resources. It is care lessness so

stark the United States does not even try to defend it. Given the egre giousness of the delay, and the lack of any effort to explain it, I would fi nd this convening authority and his staff violated appellant’s due process rights. United States v.

Moreno , 63 M.J. 129, 135 (C.A.A.F. 2006).

More broadly, faced with numerous case s of excessive post-t rial delay, I am concerned this court’s routine granting of sentence reductions ma y be causing more harm than good. Specifically, by granti ng sentencing relief in such cases we engender a moral ha zard where such relief is as sumed and expe cted—thereby diminishing the impetus to get it right in the first instance. There is scant evidence

that our routin e reduction of justly-earned sentences serves to spur pr oper post-trial process or deter lethargic post-trial pro cessing. The opposite may be the more likely—we may be greasing the wheels of apathy.GONZALEZ-GOMEZ – ARMY 20121100

8 Additionally, this court often enforces deadlines, tests counsel’s effectiveness at trial, and, when warranted, holds indivi duals accountable for the performance of their duties in the military justice system. See United States v. Banks , 75 M.J. 476 (Army Ct. Crim. App. 2016) (holding defense counsel to their statutory allowed time for post-trial). I see little reason no t to do so here. 4 See Army Reg. 27-26, Legal

Services: Rule for Pr ofessional Conduct fo r Lawyers, Appx. B, R.1.1 (Competence), R.1.3 (Diligence) (1 May 1992 ) (“A lawyer shall act with reasonable diligence and promptness in representing a cl ient and in ev ery case.”).

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

4 As usual, the header of our opinion refl ects the name of the SJA who issued the pretrial advice and the SJA who signed th e recommendation. However, in cases

such as this one where several SJAs ca me and went between referral and action, it omits the names of the SJAs who presided over substantial periods of the delay. MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: