UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             LIND, KRAUSS, and PENLAND
                                Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist MICHAEL A. HOSS
                          United States Army, Appellant

                                   ARMY 20120086

                Headquarters, III Corps and Fort Hood (convened)
                        Headquarters, Fort Hood (action)
                         James L. Varley, Military Judge
             Colonel Stuart W. Risch, Staff Judge Advocate (pretrial;
                        recommendation; first addendum)
      Colonel Richard W. Rousseau, Staff Judge Advocate (second addendum)


For Appellant: Colonel Kevin Boyle, JA; Captain Sara E. Lampro, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major Daniel D. Derner, JA; Captain
Timothy C. Donahue, JA (on brief).


                                  19 December 2014

                              ----------------------------------
                               SUMMARY DISPOSITION
                              ----------------------------------

LIND, Senior Judge:
        A panel of officer and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of one specification of violating a lawful
general order, one specification of aggravated assault with a dangerous weapon, one
specification of reckless endangerment, and one specification of negligent discharge
of a firearm in violation of Articles 92, 128, and 134, Uniform Code of Military
Justice [hereinafter UCMJ], 10 U.S.C. §§ 892, 928, 934 (2006). The panel
sentenced appellant to a bad-conduct discharge, confinement for six months,
forfeiture of all pay and allowances, and reduction to the grade of E -1. The
convening authority approved only five months of confinement and the remainder of
the sentence as adjudged.
      This case is before the court for review pursuant to Article 66, UCMJ.
HOSS—ARMY 20120086

                      Unreasonable Multiplication of Charges

        Appellant’s sole assignment of error alleges that Specification 1 of Charge II
(reckless endangerment by chambering a round in a firearm, pointing the firearm at
another soldier, and squeezing the trigger), Specification 2 of Charge II (negligent
discharge of a firearm), and the Specification of Charge III (violation of a lawful
general order by wrongfully chambering a round in a firearm) constitute an
unreasonable multiplication of charges for findings with the Specification of
Charge I (aggravated assault with a loaded firearm). Appellant asks that we dismiss
Specifications 1 and 2 of Charge II and the Specification of Charge III. The
government concedes only that both specifications of Charge II (reckless
endangerment and negligent discharge of a firearm) are an unrea sonable
multiplication of charges for findings with the Specification of Charge I (aggravated
assault with a loaded firearm) and joins appellant in asking that we dismiss the
specifications of Charge II. The government does not concede that the Specificat ion
of Charge III (violation of a lawful general order by wrongfully chambering a round
in a firearm) is an unreasonable multiplication of charges for findings with the
Specification of Charge I (aggravated assault with a loaded firearm).

       All three charges arose from a single incident in which appellant chambered a
round in his M-9 pistol, pointed the pistol at a fellow soldier’s chest, and negligently
discharged a single round. The round struck the soldier’s chest and resulted in the
soldier’s paralysis from the chest down. Under the facts of this case, we accept the
government’s concession and will grant relief in our decretal paragraph by setting
aside and dismissing Specifications 1 and 2 of Charge II. See United States v.
Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001); Rule for Courts-Martial [hereinafter
R.C.M.] 307(c)(4). 1 We also note that pursuant to our superior court’s recent
jurisprudence, “when a ‘panel return[s] guilty findings for both specifications and it
was agreed that these specifications were charged for exigencies of proof, it [is]
incumbent’ either to consolidate or dismiss a specification. ” United States v.
Elespuru, 73 M.J. 326, 329 (C.A.A.F. 2014) (quoting United States v. Mayberry,
72 M.J. 467, 467-68 (C.A.A.F. 2013) (summ. disp.)). In this case, the military judge
asked whether the government was “essentially charging [the Specification of
Charge I and both specifications of Charge II] under alternative theories,” and trial
counsel answered in the affirmative.

      Contrary to appellant’s assertion, we do not find the charge of violating a
lawful general order is an unreasonable multiplication of charges for findings with
the remaining aggravated assault charge. Each offense is aimed at a distinct

1
  The military judge merged all of the offenses for sentencing. Applying the
reassessment principles of United States v. Winckelmann, 73 M.J. 11, 15-16
(C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986), we
are confident the panel would have adjudged a sentence at least as severe as the
approved sentence.

                                           2
HOSS—ARMY 20120086

criminal interest: the gravamen of the aggravated assault is the bodily harm actually
inflicted upon the soldier that was caused by the negligent firing of a loaded firearm;
the gravamen of the violation of a lawful general order for wrongfully chambering a
round is the blatant disregard of an order issued by the area commander for the
purposes of good order, discipline, and safety.

                                    Post-trial Delay

       Appellant also personally raises additional matters pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982), one of which merits discussion, but no
relief. Appellant personally complains of excessive delay during the post-trial
processing of his case and requests relief in the form of confinement credit.

        Appellant was sentenced on 27 January 2012. The record of trial was
1,049 pages in length. On 8 April 2013, 437 days after completion of appellant’s
trial, defense counsel first received the record for review and promptly completed
his errata within 7 days. The military judge received the record of trial 22 days later
and completed authentication of the record within 16 days on 23 May 2013. The
staff judge advocate’s recommendation was prepared 47 days later on 9 July 2013.
The post-trial recommendation was served on appellant on 16 July 2013. Appellant
submitted his R.C.M. 1105 matters 20 days later on 5 August 2013. In his post-trial
matters, appellant complained that his due process right to speedy post-trial review
was violated. The first addendum was prepared 23 days later on 28 August 2013,
and the staff judge advocate advised the convening authority that “because of the
lengthy delay between time of trial and time of Action, I recommend you grant
clemency” by reducing appellant’s sentence to confinement by one month. 2 The first
addendum, which contained new matter, was served on appellant on 11 September
2013. Five days later on 16 September 2013, appellant submitted a memorandum in
response to the addendum. On 20 September 2013, the staff judge advocate prepared
a second addendum, again recommending that appellant receive one month of
clemency. The same day, the convening authority adopted the recommendation and
took action in appellant’s case. The record of trial was received at this court on
25 October 2013.

       We review claims that an appellant has been denied his due process right to a
speedy post-trial review de novo. United States v. Moreno, 63 M.J. 129, 135
(C.A.A.F. 2006). Our superior court has adopted the four factor test of Barker v.
Wingo, 407 U.S. 514, 530 (1972) to determine whether a due process violation has
occurred: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant's
assertion of the right to timely review and appeal; and (4) prejudice. Id.

      There is a presumption of unreasonable delay when more than 120 days have
elapsed between completion of an appellant’s trial and action by the convening

2
    Appellant had already served his six -month sentence to confinement.

                                            3
HOSS—ARMY 20120086

authority. Id. at 142. A similar presumption is applied where the record of trial is
not received by the service court of criminal appeals within 30 days of convening
authority action. Id. These presumptions trigger analysis of the remaining three
factors. Id. In this case, the total post-trial processing time from sentence to action
was 602 days and the record of trial was docketed with this court 35 days after
action. The government did not provide either a contemporaneous explanation or an
explanation on appeal for the delay. The only explanation we can find for any
portion of the delay in the record is a memorandum for record written by the military
judge explaining the minimal delay of 16 days to authenticate the 1,049-page record.
Given the government’s lack of explanation or justification for the total delay, t he
second factor weighs in appellant’s favor. Turning to the third factor, while
appellant complained of the unreasonable post -trial processing in his case, he waited
to do so until he submitted his R.C.M. 1105 matters , 556 days after completion of
the trial. This was the first time that appellant made an y assertion of his right to
speedy post-trial review. The untimely demand weighs slightly against appellant.
See id. at 138; see also United States v. Canchola, 64 M.J. 245, 246 (C.A.A.F. 2007)
(per curiam). While appellant asserted prejudice in his R.C.M. 1105 matters , he
does not renew his claim of prejudice on appeal. Upon review of the record, we find
no prejudice to appellant. Under Moreno, we hold appellant’s due process right to
speedy post-trial review was not violated.

       However, even when there is no showing of prejudice, we may nonetheless
find a due process violation if “in balancing the other three factors, the delay is so
egregious that tolerating it would adversely affect the public’s perception of the
fairness and integrity of the military justice system.” United States v. Toohey,
63 M.J. 353, 362 (C.A.A.F. 2006). Having considered the lengthy delay, the lack of
any explanation by the government, and appellant’s less than timely assertion of his
right to speedy post-trial review, we hold that the post-trial delay in this case is not
so egregious as to find a due-process violation under Toohey. 3

       Finally, we must also review the appropriateness of appellant’s sentence in
light of the lengthy 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,

3
 Even assuming a due process violation under Toohey, we would find the error
harmless beyond a reasonable doubt. See United States v. Arriaga, 70 M.J. 51, 56
(C.A.A.F. 2011) (citing United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006)).
The convening authority, upon staff judge advocate advice, granted appellant one -
month relief for dilatory post-trial processing. Appellant requests this court to
afford additional confinement credit. We find that further relief is not warranted.
See United States v. Rodriguez-Rivera, 63 M.J. 372, 386 (C.A.A.F. 2006) (even
assuming a due process violation for post-trial delay, “to fashion relief that would be
actual and meaningful in this case would be disproportionate to the possible harm
generated from the delay. Accordingly, we conclude that no additional relief is
appropriate or warranted in this case.”).

                                           4
HOSS—ARMY 20120086

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.”). Upon review of the entire
record, to include, inter alia, the lengthy post-trial delay, the lack of any
documented explanation or justification by the government for the delay, the lack of
timely demand for speedy trial by appellant, the clemency of one-month confinement
credit granted by the convening authority, the nature and seriousness of appellant’s
offenses, the dismissal of Specifications 1 and 2 of Charge II, and the resulting
reassessed sentence, we find appellant’s reassessed sentence is appropriate. See
United States v. Garman, 59 M.J. 677, 683 (Army Ct. Crim. App. 2003) ( holding
that the post-trial delay “was not so egregious under the totality of the circumstances
as to render appellant’s otherwise appropriate sentence inappropriate.”).

                                   CONCLUSION

       The findings of guilty of Charge II and its specifications are set aside and
dismissed. The remaining findings of guilty are AFFIRMED. Reassessing the
sentence on the basis of the errors noted, the entire record, and in accordance with
the principles of Winckelmann, 73 M.J. at 15-16 and Sales, 22 M.J. at 307-08, we are
confident the panel would have adjudged a sentence at least as severe as the
approved sentence. We find this reassessed sentence is appropriate. See UCMJ art.
66(c). The sentence is AFFIRMED. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings set aside by this
decision, are ordered restored.

      Judge KRAUSS and Judge PENLAND concur.

                                       FOR
                                       FORTHE COURT:
                                            THE  COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                       Clerk
                                       Clerkof of
                                               Court
                                                  Court




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