UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         COOK, CAMPANELLA, and HAIGHT
                             Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                        Captain RYAN K. TOMLINSON
                         United States Army, Appellant

                                 ARMY 20110034

                              Headquarters, 8th Army
                          T. Mark Kulish, Military Judge
                Colonel Jeffrey C. McKitrick, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA; Captain
Kristin McGrory, JA (on motion to stay the proceedings; motion for sanity board );
Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA; Captain Kristin McGrory,
JA (on motion for consideration of order denying appellant’s request for a sanity
board; motion to stay the proceedings; motion for sanity board; to stay the
proceedings; motion for sanity board); Major Jac ob D. Bashore, JA; Captain Kristin
McGrory, JA (on motion to abate proceedings; motion to stay proceedings; motion
for sanity board); Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA;
Captain Kristin McGrory, JA (on motion to abate proceedings); Col onel Patricia A.
Ham, JA; Major Jacob D. Bashore, JA; Captain Brian J. Sullivan, JA (on motion for
reconsideration of order denying motion to abate proceedings); Colonel Kevin
Boyle, JA; Major Vincent T. Shuler, JA; Captain Brian J. Sullivan, JA (on motion
for reconsideration of order denying motion to abate proceedings; motion for
reconsideration of order denying motion for R.C.M. 706 board for the time of the
alleged offenses).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Julie A. Glascott, JA;
Captain Daniel H. Karna, JA (on reply in opposition to defense motion to stay the
proceedings; motion for sanity board); Major Robert A. Rodrigues, JA; Captain
Daniel H. Karna, JA (on reply to defense motion for reconsideration of order
denying appellant’s request for sanity board); Lieutenant Colonel Amber J. Roach,
JA; Major Robert A. Rodrigues, JA; Captain Daniel H. Karna, JA ( on reply to
defense motion to abate proceedings; motion to stay proceedings; motion for sanity
board); Major Robert A. Rodrigues, JA; Captain Daniel H. Karna, JA (on reply to
defense motion for reconsideration of order denying motion to abate proceedings);
Major Robert A. Rodrigues, JA; Captain Daniel H. Karna, JA (on response to this
court’s order dated 15 January 2013); Colonel John P. Carrell, JA; Lieutenant
Colonel James L. Varley, JA; Major Robert A. Rodrigues, JA; Captain Daniel H.
Karna, JA (on reply to defense motion for reconsideration of order denying motion
TOMLINSON—ARMY 20110034

to abate proceedings and defense motion for reconsideration of order denying motion
for R.C.M. 706 board for the time of the alleged offenses).

                                     13 December 2013

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

COOK, Senior Judge:

       A military judge, sitting as a general court -martial, convicted appellant,
contrary to his pleas, of failure to report (eight specifications), disrespect towards a
superior commissioned officer (twelve specifications), willful disobedience of a
lawful order (four specifications), dereliction of duty (one specification), and
making a false official statement (one specification), in violation of Articles 86, 89,
90, 92, and 107, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 889, 890, 892,
907 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a
dismissal from the service. The convening authority approved the sentence as
adjudged.

      Today, for the reasons below, we abate the proceedings ab initio.

                           PROCEDURAL BACKGROUND

       The case before us has a lengthy and complex procedural background that is
best described in detail.

       On 5 June 2012, appellate defense counsel submitted a motion on be half of
appellant requesting this court order a sanity board to determine appellant’s ability
to assist in the preparation of his appellate case and whether appellant lacked mental
responsibility at the time the offenses were committed. Appellate defense counsel
further requested this court issue a stay pending the outcome of the sanity board.

      On 12 June 2012, appellate government counsel filed a reply opposing
appellant’s motion.

      On 13 July 2012, this court ordered appellate government counsel, in
accordance with United States v. Massey, 27 M.J. 371, 373-74 (C.M.A. 1989) and
Rule for Courts-Martial [hereinafter R.C.M.] 1203(c)(5), to arrange with a proper
authority to initiate proceedings to determine appellant’s mental capacity to
currently understand and cooperate in his pending appellate proceedin gs, but
otherwise denied appellate defense counsel’s motion.



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TOMLINSON—ARMY 20110034

       The special medical board appointed in accordance with R.C.M. 706 convened
on 21 September 2012 and determined appellant was currently suffering from a
severe mental disease or defect, and due to this mental disease or defect, was unable
to understand the nature of the appellate proceedings or unable to cooperate
intelligently in his pending appeal.

       On 16 October 2012, appellate defense counsel submitted a motion on behalf
of appellant requesting this court to: stay the proceedings; abate the proceedings;
and order a sanity board to determine if appellant lacked mental responsibility at the
time of the alleged offenses.

      On 17 October 2012, appellate government counsel replied, concurring with
appellate defense counsel that the proceedings should be stayed until such time as
appellant was able to understand and cooperate in appellate pr oceedings, but
otherwise opposing appellant’s motion.

       On 15 January 2013, this court granted appellate defense counsel’s request to
stay the proceedings. In addition, we ordered government appellate counsel, in
accordance with Massey, 27 M.J. at 373-74 and R.C.M. 1203(c)(5), to arrange with
proper authority to initiate proceedings to determine appellant’s ment al capacity to
currently understand and cooperate in his pending appeal. Specifically, the special
medical board appointed as a result of this order was to be composed of at least
three individuals, at least one of whom would be a psychiatrist, with the r emaining
members being physicians and/or clinical psychologists.

       Further, this court directed that the board would be initiated no later than
15 January 2014, and that the board would make specific findings with respect to
various dimensions of appellant’s mental health and his ability—currently or with
further treatment—to participate in appellate proceedings. This court directed
appellate government counsel to provide a written statement containing the board’s
ultimate conclusions to the specific quest ions posed by this court no later than
15 April 2014.

       On 15 January 2013, appellate defense counsel filed an additional motion to
abate proceedings, and also moved to attach Defense Appellate Exhibit D, a
statement from a psychiatrist, Lieutenant Colonel (LTC) David Johnson, who was a
part of appellant’s 21 September 2012 sanity board, and who evaluated appellant and
reviewed various documents pertaining to appellant’s court-martial and medical
history. Lieutenant Colonel Johnson concluded that appellan t currently suffered
from a severe mental disease or defect —namely Schizoaffective Disorder, Bipolar
Type—that prevented him from understanding or participating in his pending appeal.
Additionally, LTC Johnson opined that “it is my medical opinion that, despite his
psychiatric and medical evaluations prior to trial, [appellant] possibly suffered from
a severe mental disease or defect such that he was unable to understand the nature



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and wrongfulness of his actions.” Lieutenant Colonel Johnson also stated t hat it was
“possible that [appellant] was unable to comprehend the nature of the proceedings at
the time of trial.”

       On 22 January 2013, this court denied appellate defense counsel’s motion to
abate the proceedings and to attach LTC Johnson’s statement as a defense appellate
exhibit.

      On 22 February 2013, new appellate defense counsel filed a motion for
reconsideration of this court’s 22 January 2013 order denying its motion to abate the
proceedings, along with another motion to attach various statements of mental
healthcare providers expressing opinions and conclusions about appellant’s
condition and prognosis, as well as other concerns. On 13 March 2013, this court
denied appellate defense counsel’s motion to abate the proceedings, but granted the
motion to attach the statements as Defense Appellate Exhibits D -F.

       On 22 October 2013, appellate government counsel responded to this court’s
15 January 2013 order, and submitted the medical board’s ultimate conclusions to
the specified questions contained in that order. Among its conclusions, the board
found that:

      a. appellant suffers from Schizophrenia, Paranoid type ;

      b. appellant currently suffers from a severe mental disease or defect ;

      c. appellant is currently unable to understand the nature of the appellate
      proceedings and/or is unable to cooperate in his pending appeal as a result of
      a severe mental disease or defect; and

      d. in the absence of changes to appellant’ s current treatment, his present
      condition is likely to be his best functio ning, and improvements in appellant’s
      current mental capacity—through medication or otherwise—were unlikely but
      not impossible.

      On 28 October 2013, appellate defense counsel filed a motion for
reconsideration of this court’s order denying its motion to abate proceedings.
Defense appellate counsel alternatively requested an R.C.M. 706 board evaluate
appellant’s mental state at the time of the offenses . Appellate defense counsel
argued that based on the unanimous results of the R.C.M. 706 boards ordered by this
court—each concluding appellant suffers from a severe disease or defect —as well as
“definitive[]” statements from his daily mental health providers that appellant will
“not improve and never be able to meaningfully participate in his appeal,” this court
should abate the current proceedings. Appellate defense counsel further argued that




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in the absence of the requested relief, “appellant faces the prospect of having his
case languish in an indefinite stay status with no prospective resolution.”

       On 1 November 2013, government appellate counsel res ponded, requesting
this court grant a “continuation or stay in the proceedings until such time that
appellant can be evaluated by a Medical Evaluation Board and Physical Evaluation
Board under the Army Physical Disability Evaluation System.” The government
elaborated that, “In the event that appellant is recommended for medical separation
from the Army . . . based on his current mental condition, the government would
then move this court to dismiss the charges against appellant or abate the
proceedings ab initio at the time of his medical retirement or separation.”

       On 20 November 2013, we held a status conference with government and
defense appellate counsel to discuss the posture of the case in light of the m ost
recent sanity board findings and subsequent pleadings of the parties. Defense
appellate counsel reiterated their position that the appellate proceedings should be
abated ab initio and this court should set aside the findings of guilty and the
sentence. Government appellate counsel maintained their position as well, and
provided additional details about the current status of appellant’s physical and
mental evaluations. Government counsel acknowledged that the evaluations were
near their completion, and that appellant was well along the path towards medical
separation, and therefore it was not opposed to the court’s abatement ab initio of the
proceedings.

                                         LAW

        Following a conviction at court-martial, “an appeal to the Courts of Criminal
Appeals is an appeal of right.” United States v. Rorie, 58 M.J. 399, 407 (C.A.A.F.
2003). See also UCMJ art. 66(b). On occasion, military appellate courts have been
confronted with the scenario in which an appellant passes away following conviction
at trial, but while the appellate process is still unfolding. When an appellant dies
prior to completion of his appeal, he is generally entitled to an abatement of the
proceedings ab initio. United States v. Ribaudo, 62 M.J. 286, 287 (C.A.A.F. 2006)
(citing Rorie, 58 M.J. at 400). In Ribaudo, the Court of Appeals for the Armed
Forces held that once “a Court of Criminal Appeals issues its decision under Article
66(c), UCMJ, an appellant has received his appeal of right and is no longer entitled
to application of the policy of abatement ab initio.” 62 M.J. at 287.

      In addition to those unfortunate cases in which an individual died before the
completion of his Article 66(b), UCMJ, appeal of right, this court has recently
addressed a situation more analogous to appellant’s case. In United States v.
Burleson, we abated a pending appeal ab initio after Specialist Burleson suffered a
massive brain stem stroke, rendering him quadriplegic and unable to communicate or




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effectively participate in his appeal. ARMY 20020262 , (Army Ct. Crim. App.
17 Feb 2011) (mem. op.). Specifically, this court concluded:

              Appellant’s profound impairments, documented in full by
              multiple medical assessments, as well as two experienced
              appellate defense counsel who personally met with
              appellant, foreclose the possibility of appellant ever being
              able to “consult with his lawyer with a reasonable degree
              of rational understanding,” and thus, preclude a
              meaningful appeal before this court.

Id. slip op. at 10 (citations omitted).

       Furthermore, with respect to the mental faculties of an appellant with a
pending appeal of right before this court, R.C.M. 1203(c)(5) provides that if there is
“substantial evidence” that an appellant lacks “the capacity to understand and
conduct or cooperate intelligently in the appellate proceedings,” we “may not affirm
the proceedings.” Rather, “If the accused does not have the requisite menta l
capacity, the appellate authority shall stay the proceedings until the accused regains
appropriate capacity, or take other appropriate action.” R.C.M. 1203(c)(5).

                                      DISCUSSION

       Here, the unique facts and procedural posture of appellant’s case leave us
with little practical choice but to abate the proceedings. Currently, appellant does
not possess the requisite mental capacity called for by R.C.M. 1203(c)(5). His
severe mental health impairments, which have persisted for well over a year —if not
much longer—preclude him from understanding, or meaningfully participating and
cooperating in his appeal. * Further, the prognoses from various highly qualified
treating mental health professionals suggest there is slim, if any, hope of appellant
recovering or regaining the requisite mental capacity in the foreseeable future such
that this appeal could move forward with his active involvement and understanding.

       Additionally, it appears appellant is now eligible to be medically separated
from the Army based on the same debilitating mental health conditions that have
precluded this court from proceeding with our review of his case pursuant to Article
66(c), UCMJ. Both defense and government appellate counsel are amenable to this
way ahead. However, the government has acknowledged that in order for appellant

*
  We will not speculate as to appellant’s mental health at the time of his offenses or
trial. Our decision to abate the proceedings is based exclusively on appellant’s
current and prospective mental health condition, and the unlikelihood that his appeal
of right before this Court can be effectively completed.



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to proceed any further in the medical separation proc ess, he must not be pending any
further action pursuant to the UCMJ. While we recognize this could seemingly place
this court in a “chicken-or-the-egg” conundrum, the government has agreed that
based on the unique circumstances of appellant’s case, abatement ab initio is now
the appropriate course of action for this court.

                                      CONCLUSION

       We conclude there is little possibility of appellant being able to “consult with
his lawyer with a reasonable degree of rational understanding,” thus, precluding a
meaningful appeal before this court. See generally United States v. Barreto, 57 M.J.
127, 130 (C.A.A.F. 2002) (quoting United States v. Proctor, 37 M.J. 330, 336
(C.M.A. 1993)).

       The proceedings are abated ab initio. The findings of guilty and the sentence
are set aside, and the charges are DISMISSED. All rights, privileges, and property
of which appellant was deprived by virtue of the findings of guilty and the s entence
will be restored. See UCMJ arts. 58b(c) and 75(a), 10 U.S.C. §§ 858b(c) and 875(a).

      Judge CAMPANELLA and Judge HAIGHT concur.



                                        FOR THE COURT:




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




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