CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
KRIMBILL, BROOKHART, and FLEMING
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Sergeant First Class COREY L. BRUNER
United States Army, Appellant

ARMY 20190276

Headquarters, 8th Theater Sustainment Command
Kenneth W. Shahan, Military Judge
Lieutenant Colonel Michael C. Friess, Staff Judge Advocate

For Appellant: Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D.
Pond, JA; Major Angela D. Swilley, JA; Captain Paul T. Shirk, JA (on brief);
Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D. Pond, JA; Major
Joseph C. Borland, JA; Captain Paul T. Shirk, JA (on reply brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Captain Brian D. Jones, JA; Captain Karey B. Marren, JA (on brief).

12 August 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent,
BROOKHART, Senior Judge:

A military judge sitting as a general court-martial tried appellant on 22 April
2019. Pursuant to his pleas, appeliant was found guilty of one specification of
attempted larceny, one specification of violating a lawful general regulation, one
specification of wrongfully distributing a controlled substance, one specification of
wrongfully using a controlled substance, and six specifications of larceny, in
violation of Articles 80, 92, 112a, and 121, Uniform Code of Military Justice, 10
U.S.C. §§ 880, 892, 912a, and 921 [UCMJ]. Contrary to his pleas, appellant was
found guilty of one specification of attempted robbery, in violation of Article 80,
UCMJ. Appellant was sentenced to be discharged from the service with a bad-
BRUNER—ARMY 20190276

conduct discharge, to be confined for twenty-seven months, and to be reduced to the
grade of E-1.! The convening authority approved the adjudged sentence on 26
November 2019.7

BACKGROUND

Several weeks after trial, the court reporter discovered a malfunction in the
recording equipment. As a result, approximately seventeen minutes of the
government’s closing argument on the one contested specification was not recorded
and unavailable for transcription, leaving the record incomplete. The court reporter
inserted a Memorandum for the Record into the record of trial where the
transcription was missing. The memorandum generally explained what was missing.
The military judge then authenticated the record of trial. Appellant did not raise the
issue in his post-trial matters and the staff judge advocate (SJA) made no mention of
the missing portion of the record in his post-trial advice to the convening authority.
Appellant on two occasions requested speedy post-trial processing. The SJA
included a timeline of the post-trial processing of the case along with his post-trial
advice. However, the SJA offered no explanation for the delay and provided no
comment on appellant’s request for speedy processing.

On appeal, appellant raises three assignments of error, two of which we will
address. In his first assignment of error, appellant contends the convening authority
improperly approved appellant’s sentence without a substantially verbatim transcript
in violation of Rule for Courts-Martial [R.C.M.} 1103(f). In his third assignment of
error, appellant avers he is entitled to relief where the government took 216° days
from sentencing until action to process his record of trial. We agree with appellant
on both counts.*

 

' Appellant was sentenced on 24 April 2019. The military judge awarded appellant
189 days of confinement credit.

* The convening authority’s action fails to account for appellant’s 189 days of
judicially awarded confinement credit. Insofar as appellant has not already received
such credit, he shall be credited 189 days against his sentence. See Army Reg. 27-
10, Legal Services: Military Justice, para. 5-32.a (11 May 2016); United States
v. Arab, 55 M.J. 508, 510 n.2 (Army Ct. Crim. App. 2001).

7 As noted below, we find 196 of those days attributable to the government.
* Appellant’s second assignment of error alleges the record is incomplete because of

a missing court-martial convening order. Appellate government counsel moved to
attach the convening order to the record of trial. That motion was granted.
BRUNER—ARMY 20190276

LAW AND DISCUSSION

Whether a transcript is substantially verbatim is a question of law which we
review de novo. United States v. Davenport, 73 M.J. 373, 376 (C.A.A.F. 2014),

In accordance with R.C.M. 1103(b)(2)(B), the record of trial in any case in
which the sentence adjudged includes twelve or more months of confinement or a
bad-conduct discharge must include a verbatim transcript of all sessions except
closed deliberations and voting. See R.C.M. 1103(f);° Davenport, 73 M.J. at 377 (a
record is not verbatim if omitted material is qualitatively or quantitatively
substantial). The discussion to R.C.M. 1103(b)(2)(B) further clarifies that a
verbatim transcript includes “all proceedings, including sidebar conferences,
arguments of counsel, and rulings and instructions by the military judge.” In this
case, the parties agree the scale of the missing transcript renders the transcript non-
verbatim under the quantitative standard. See Davenport, 73 M.J. at 377. We
concur.

In Davenport, our Superior Court held where the record of trial is incomplete
because the transcript is not verbatim, the procedures found in R.C.M. 1103(f)
control. 73 M.J. at 378. In accordance with R.C.M. 1103(f), there are two options
available to address qualifying cases in which the transcript is not verbatim. After
preparing a summarized report of the proceedings, the convening authority may
approve a sentence that includes six months or less of confinement and no discharge.
R.C.M. 1103(f)(1). In the alternative, the convening authority may order a rehearing
as to any offense of which appellant was found guilty, provided the evidence in the
summarized record supports such a finding. R.C.M. 1103(f)(2). Traditionally, when
appellate courts determined a transcript was not verbatim, the case was returned to
the convening authority for action pursuant to R.C.M. 1103(f). See Davenport, 73
M.J. at 379 (returning the case to the convening authority “for action consistent with
R.C.M. 1103(f)”); United States v. Roberts, ARMY 20150023, 2018 CCA LEXIS
437, at *12 (Army Ct. Crim. App. 7 Jun. 2018) (mem. op.) (returning the case “to
the convening authority under R.C.M. 1103”).

Unfortunately, as this court noted in United States v Steele, ARMY 20170303,
2019 CCA LEXIS 95, at *6-9 (Army Ct. Crim. App. 5 Mar. 2019) (mem. op.), the
amendment to Article 60, UCMJ, pursuant to the MJA of 2016, effectively prevents
the convening authority from exercising either of the options delineated in R.C.M.

 

> The charges in this case were referred prior to 1 January 2019. Therefore, the
version of the R.C.M. in effect on the date of referral control. The court recognizes
the Military Justice Act (MJA) of 2016 brought significant changes to the R.C.M.
governing preparation and certification of the record of trial.
BRUNER—ARMY 20190276

1103(f). This limitation creates a situation where such cases might be forever stuck
in a version of appellate limbo. In Steele, where a significant portion of the
sentencing hearing was missing, a different panel of this court broke free of the “do-
loop” created by the new Article 60, UCMJ, by setting aside the sentence, which the
convening authority could not do, before returning the case to the convening
authority for action consistent with R.C.M. 1103(f). Steele, 2019 CCA LEXIS 95, at
*8-10. We agree with the logic of Steele insofar as it calls for this court to take the
action which the convening authority cannot due to the changes to Article 60.
However, as this case is postured differently, further discussion is required.

In this case, missing from the transcript is the bulk of the government’s
argument on findings for the one contested specification. Certainly, the missing
transcript affects the finding of guilt on that charge, as well as the sentence, which
included punishment for the contested finding as well as the charges to which
appellant pleaded guilty.© However, there is no indication the guilty plea portion of
appellant’s court-martial, which took place a day earlier, was impacted at all by the
missing portions of the transcript. Accordingly, both parties urge the court to set
aside only the finding of guilty to the contested specification and the sentence, and
leave standing the offenses of which appellant was convicted pursuant to his pleas.

Despite the urgings of the parties, we conclude that act is not within our
power. Davenport makes clear if a record is incomplete because of a non-verbatim
transcript, then the remedies are limited to those found in R.C.M. 1103. Davenport,
73 M.J. at 378. As that rule states, a complete transcript includes all sessions of the
court-martial. R.C.M. 1103(b)(2)(B). Neither R.C.M. 1103 nor Davenport make
room for any parsing among sessions or offenses in evaluating the completeness of a
record and we will not engage in any in this case. See United States v. Seeto, ACM
39247, 2018 CCA LEXIS 518, at *19 n.7 (A.F. Ct. Crim. App. 26 Oct. 2018)
(unpublished). Appellant’s record of trial is non-verbatim; therefore, we must set
aside all of the findings of guilty and the sentence before returning the case for the
convening authority’s action consistent with R.C.M. 1103(f)(2)}. We will do so in
our decretal paragraph.’

 

© Appellant’s sentence was not segmented.

7 As we noted in Steele, the best time to rectify an incomplete transcript is as soon as
the error is discovered. Steele, 2019 CCA LEXIS 95, at *4 n.7 (citing Davenport, 73
M.J. at 377-78). This is particularly true given the changes to the R.C.M., which
apply to all cases referred after 1 January 2019. Rule for Courts-Martial 1112 now
covers certification of the record of trial and addresses situations where the
recording of all sessions is not substantially verbatim. The rule specifically calls for
correction by the military judge. R.C.M. 1112(d). Options available include
reconstructing the missing portions of the record, or if necessary, proceeding anew

(continued . . .)
BRUNER—ARMY 20190276

Appellant also alleges he is entitled to relief as a result of the dilatory post-
trial processing of his case. We agree.

When confronted with post-trial delay, this court has two distinct
responsibilities. United States v. Simon, 64 M.J. 205, 207 (C.A.A.F. 2006) (citing
Toohey v. United States, 60 M.J. 100, 103-04 (C.A.A.F. 2004)). First, this court
reviews de novo whether claims of excessive post-trial delay resulted in a due
process violation. Jd. (citing U.S. Const. amend. V; Diaz v. Judge Advocate General
of the Navy, 59 M.J. 34, 38 (C.A.A.F. 2003)). Second, even if we find no error as a
matter of law, we may grant an appeilant relief for excessive post-trial delay using
our broad authority to determine sentence appropriateness under Article 66, UCMJ.
Id. (citing United States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002)).

A presumption of unreasonable post-trial delay exists when the convening
authority fails to take action within 120 days of completion of trial. United States v.
Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). In Toohey, our Superior Court adopted
the four-factor balancing test from Barker v. Wingo, 407 U.S. 514, 530-32 (1972),
which we employ when a presumption of unreasonable post-trial delay exists, to
determine whether the post-trial delay constitutes a due process violation: “(1)
length of the delay; (2) reasons for the delay; (3) the appellant’s assertion of his
right to a timely appeal; and (4) prejudice to the appellant.” 60 M.J. at 102. In
assessing the fourth factor of prejudice, we consider three sub-factors: “(1)
prevention of oppressive incarceration pending appeal; (2) minimization of anxiety
and concern of those convicted awaiting the outcome of their appeals; and (3)
limitation of the possibility that a convicted person’s grounds for appeal, and his or
her defenses in case of reversal and retrial, might be impaired.” Moreno, 63 M.J. at
138-39 (quoting Rheuark v. Shaw, 628 F.2d 297, 303 n.8 (Sth Cir. 1980)).

Considering the facts of this case, where appellant twice demanded speedy
trial and where there was an obvious error that needed correction, we find appellant
is entitled to relief. While the circumstances of this case might justify relief under
the Moreno test, we are confident relief is warranted pursuant to our broad authority
to assess an appropriate sentence under Article 66.

Typically, after finding an appellant is entitled to relief for dilatory post-trial
processing, we would take action to provide specific relief based on the violation.
Given that we return this case to the convening authority for the possibility of a
rehearing on both findings and sentence, we do not believe providing specific

 

{... continued)
by recalling witnesses or having counsel re-make their arguments. R.C.M.
1112(d)(3) discussion.
BRUNER—ARMY 20190276

sentence relief is appropriate at this point in the proceedings. Instead, should this
case come back to us for appellate review a second time, we will consider the
government’s dilatory post-trial processing of this case as part of any subsequent
appellate review and provide any appropriate sentence relief at that time. See UCMIJ
art. 66.

CONCLUSION
Based upon the forgoing, the findings of guilty and the sentence are SET
ASIDE. A rehearing may be ordered by the same or different convening authority.®
See R.C.M. 1103(f}(2).
Chief Judge KRIMBILL and Judge FLEMING concur.

FOR THE COURT:

$b Ge K

MALCOLM H. SQUIRES, JR.
Clerk of Court

 

® Appellant will be credited with the 189 days of confinement credit awarded by the
military judge at his first trial, and any credit for confinement served pursuant to the
sentence we set aside herein.
