United States v. Private E1 LAMONT K. GOODWIN

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before GALLUP, TOZZI, and HAM Appellate Military Judges UNITED STATES, Appellee v. Private E1 LAMONT K. GOODWIN United States Army, Appellant ARMY 20080816 Headquarters, I Corps and Fort Lewis John Head, Military Judge Colonel Jeffrey C. McKitrick, Staff Judge Advocate For Appellant: Major Grace M. Gallagher, JA; Captain Jess B. Roberts, JA (on brief) For Appellee: Pursuant to A.C.C.A Rule 15.2, no response filed. 21 April 2009 ----------------------------------- SUMMARY DISPOSITION ----------------------------------- Per Curiam: On 5 September 2008, a military judge convicted appellant, pursuant to his pleas, of making a false official statement and larceny in violation of Articles 107 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 890 and 921 [hereinafter UCMJ]. The military judge sentenced appellant, inter alia, to pay the United States a fine of $3800 but recommended the fine be disapproved by the convening authority if full restitution was made prior to action. Two weeks later, on 19 September 2008, appellant’s trial defense counsel submitted a request for deferment of automatic and adjudged forfeitures to the convening authority via the Staff Judge Advocate. The convening authority, however, did not act on appellant’s request for deferment until 22 January 2009; the same day he took action on appellant’s case. Ultimately, the convening authority denied appellant’s request for deferment and approved a sentence that included the $3800 fine. This case is before the court for review pursuant to Article 66, UCMJ. Appellant asserts, in matters he submitted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), that his ability to pay restitution was inhibited by the failure of the government to process the deferment request in a timely manner and, therefore, the convening authority could not have properly considered the military judge’s recommendation to waive the adjudged fine. We agree. Our court has held that “requests for deferment of confinement, forfeitures, or reductions in grade must be processed expeditiously.” United States v. Kolodjay, 53 M.J. 732 , 734-35 n. 5 (Army Ct. Crim. App. 1999). In this case, over four months elapsed between the submission of the request for deferment and presentation of the request to the convening authority. During that time, appellant’s trial defense counsel repeatedly requested a status on the request. Trial defense counsel was initially informed the request was misplaced and then told that the convening authority would take action on the request in December 2008. Finally, the convening authority was incorrectly informed the request, dated 19 September 2008, was submitted by appellant’s defense counsel on 21 January 2009. The processing of appellant’s request was neither efficient nor expeditious. Furthermore, we find appellant articulated harm and demonstrated a “colorable showing of possible prejudice” to a substantial right. United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998). Because the government failed to present the deferment request until action, appellant was precluded from making an argument for clemency with respect to the $3800 fine. We will exercise our “broad power to moot claims of prejudice by ‘affirming only such findings of guilty and the sentence or such part or amount of the sentence, as [we find] correct in law and fact and determine[], on the basis of the entire record, should be approved.’” Wheelus, 49 M.J. at 288 (citing Art. 66(c), UCMJ). The findings of guilty are affirmed. Reassessing the sentence after considering the entire record, including the error noted herein, the court affirms only so much of the sentence as provides for a bad-conduct discharge and confinement for eight months. All rights, privileges, and property of which appellant has been deprived by virtue of that portion of his sentence set aside by this decision are ordered restored. See UCMJ arts. 58b(c) and 75(a). FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court