UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

TOZZI, CAMPANELLA, and CELTNIEKS

Appellate Military Judges

UNITED STATES, Appellee

v.

Private E1 CHE D. MIDDLETON

United States Army, Appellant

ARMY 20121121

Headquarters, III Corps and Fort Hood

Gregory A. Gross, Military Judge

Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)

Colonel Tania M. Martin, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major M. Patrick 

Gordon, JA; Captain J. David Hammond, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie, III, JA; Major 

John K. Choike, JA; Captain Scott L. Goble, JA (on brief).

30 April 2015

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SUMMARY DISPOSITION

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Per Curiam:

A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of one specification of conspiracy to commit robbery, one 

specification of reckless driving resulting in personal injury, two specifications 

of robbery, one specification of forcible sodomy, and one specification of 

kidnapping, in violation of Articles 81, 111, 122, 125, and 134, Uniform Code of 

Military Justice, 10 U.S.C. § 881, 911, 922, 925, 934 (2006) [hereina fter 

UCMJ]. Contrary to appellant’s pleas, the military judge convicted appellant of 

one novel specification of jumping from a vehicle that was fleeing from the 

police and running away from the police as they were chasing him resulting in 

the police having to use a taser to subdue him more than one time, in violation 

of Article 134, UCMJ. The military judge sentenced appellant to a dishonorable 

discharge, confinement for forty-two years, and forfeiture of all pay and 
MIDDLETON—ARMY 20121121

2

allowances. The convening authority approved twenty years of confinement and 

the remainder of the sentence.

This case is before us for review pursuant to Article 66, UCMJ. 

Appellant raises one assignment of error, which requires discussion and relief. 

Specifically, appellant requests appropriate relief to remedy the dilatory posttrial processing in his case. We agree that relief is appropriate. We also find 

the matters raised personally by appellant pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982) are without merit.

The convening authority took action 567 days after the sentence was 

adjudged. The record in this case consists of two volumes and the trial 

transcript is 217 pages. Although we find no due process violation in the posttrial processing of appellant’s case, we must still review the appropriateness of 

the sentence in light of the unjustified dilatory post-trial processing. See 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 

and sentence ‘should be approved,’ based on all the facts and circumstances 

reflected in the record, including the unexplained and unreasonable post-trial 

delay.”); see also 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 (Army Ct. Crim. App. 2000). 

The staff judge advocate signed the recommendation 218 days after the 

military judge authenticated the record. Appellant raised the issue of dilatory 

post-trial processing in his clemency submission. The staff judge advocate 

acknowledged but did not explain the delay to the convening authority. While 

the government has since explained the reasons for delay, documented reasons 

for delay should be made part of the record and available for review at all 

relevant times, including convening authority action. See United States v. 

Moreno, 63 M.J. 129, 143 (C.A.A.F. 2006) (“We expect convening 

authorities, reviewing authorities and the Courts of Criminal Appeals to 

document reasons for delay and to exercise the institutional vigilance that was 

absent in Moreno's case.”); see also United States v. Canchalo, 64 M.J. 245 

(C.A.A.F. 2007); United States v. Arias, 72 M.J. 501 (Army Ct. Crim. App. 

2013); United States v. Bauerbach, 55 M.J. 501 (Army Ct. Crim. App. 2001). 

We find the reasons offered by the government are unreasonable under 

the totality of circumstances.

CONCLUSION

Upon consideration of the entire record, the findings of guilty are

AFFIRMED. Given the dilatory post-trial processing, however, we affirm 
MIDDLETON—ARMY 20121121

3

only so much of the sentence as extends to a dishonorable discharge, 

confinement for nineteen years and eleven months, and forfeiture of all pay 

and allowances. All rights, 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.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR.

Clerk of Court

FOR THE COURT: