United States v. Devins

OPINION OF THE COURT Before CLAUSEN, CARNE and COOK, Appellate Military Judges. CARNE, Senior Judge: Appellant asserts prejudicial error in the disposition of his case by reason of the fact that he served 95 days in post-trial confinement awaiting the convening authority’s [499] action in violation of the Court of Military-Appeals’ mandate in Dunlap.1 Appellant was tried on 18 February 1977, in Seoul, Korea. His trial defense counsel departed Korea on 1 March 1977, for rotation to a new assignment in the United States with an approved leave en-' route until 4 April 1977. Prior to his departure the trial defense counsel prepared a Request for Suspension of Discharge which was submitted to the convening authority before he took his action in the case. We take judicial notice of Department of Army orders that the defense counsel’s new assignment was Vint Hill Farms Station, Virginia, and that the post is a distance of approximately 7,000 miles from the trial location. On 28 March 1977, a packet purporting to contain a copy of the authenticated record of trial and a copy of the post-trial review with a certificate of service and letter of transmittal was sent by certified mail to the trial defense counsel for his review pursuant to United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975). He received this packet on 6 April 1977, but in a letter dated 8 April, he stated that he did not receive a copy of the post-trial review with the packet. This letter was received by the staff judge advocate in Korea on 18 May 1977, which was 89 days after the trial. On the same date another copy of the post-trial review was sent to the trial defense counsel by certified mail. Five days later, on 23 May 1977, the convening authority acted on the case, approving the sentence and ordering it executed, but in consonance with the recommendation of the trial judge and the clemency petition of the defense counsel, the bad-conduct discharge was suspended for 12 months with provision for automatic remission. Under these facts we find no violation of the Dunlap mandate. The time consumed by the Government from completion of the record until preparation of the review was only 12 days and the overall processing was handled expeditiously except for the period it took the postal service to transmit a letter from the trial defense counsel in the United States to the staff judge advocate in Korea. Following the rationale of the United States Court of Military Appeals in United States v. Bryant, 3 M.J. 396 (C.M.A. 1977), we conclude that the delay caused by the postal service constituted a circumstance which removes this case from application of the Dunlap presumption. On 27 December 1977, this Court ordered appellate government counsel to obtain copies of all correspondence between the subject command and the trial defense counsel regarding the post-trial processing of this case. Those communications make it clear that the post-trial review was inadvertently omitted from the case packet mailed to trial defense counsel on 28 March 1977. Trial defense counsel did not receive a copy of the review until 25 May 1977, two days after the convening authority had taken his action. Accordingly, there was not compliance with the service requirement of Goode. This was error. Failure to serve the review prior to the convening authority’s action, to warrant the ordering of a new review and action, must result in prejudice to the appellant.2 In this case the trial defense counsel had already submitted a request for the suspension of the punitive discharge, noting the [500] recommendation of the military judge to that effect, and the convening authority complied. Moreover, once the post-trial review was served on trial defense counsel, no errors were raised which could have operated to the prejudice of the appellant.3 Accordingly, while there was procedural error, there was no prejudice in this case warranting a new review and action. The findings of guilty and the sentence are AFFIRMED. Footnotes [1] Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974). [2] The remedy in United States v. Goode, supra, allowed for either reassessment of the sentence or the ordering of a new review and action. The service requirement adopted therein, designed to eliminate delay in determining the validity of errors in post-trial reviews, allows for waiver of those errors, United States v. Barnes, 3 M.J. 406 (C.M.A.1977), and did not fashion a per se rule. Accordingly, a test for prejudice is appropriate. Article 59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a); United States v. Barrett, No. CM 434237 (A.C.M.R. 31 January 1977) (unpublished); United States v. Veilleux, 1 M.J. 811 (A.F.C.M.R. 26 February 1976); United States v. Schooler, 1 M.J. 674 (N.C.M.R.1975) (en banc); see United States v. Staley, 2 M.J. 903 (A.C.M.R. 1976); cf. United States v. Hill, 3 M.J. 295 (C.M.A.1977) (compliance required to prevent possible prejudice from consideration of adverse comments). [3] In his letter after receipt of the post-trial review, dated 27 May 1977, the trial defense counsel alleged that the staff judge advocate improperly advised the convening authority as to the maximum legally imposable sentence. A review of the record does not support the allegation. All parties agreed at trial that the maximum sentence included six years and six months of confinement (R. 16-17). The military judge neither ruled that Charges II and III were multiplicious, nor announced that the proper maximum sentence included only five years and six months of confinement. We also do not find that those charges were multiplicious for sentencing purposes.