              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                  Before
                   R.Q. WARD, J.A. FISCHER, D.C. KING
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      CARLTON WILDER, JR.
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                           NMCCA 201400118
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 12 November 2013.
Military Judge: LtCol C.M. Greer, USMC.
Convening Authority: Commanding General, 2d Marine
Division, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj J.N. Nelson,
USMC.
For Appellant: CAPT Bree Ermentrout, JAGC, USN.
For Appellee: LT James Belforti, JAGC, USN; LT Ann Dingle,
JAGC, USN.

                            12 August 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge, sitting as a general court-martial,
convicted the appellant, in accordance with his pleas, of one
specification of attempted sexual assault of two children, one
specification of distributing and one specification of
possessing child pornography, and one specification of
distributing harmful pictures to a minor, in violation of
Articles 80 and 134, Uniform Code of Military Justice.1 The
military judge sentenced the appellant to confinement for 13
years and four months, forfeiture of all pay and allowances,
reduction to pay grade E-1, and a dishonorable discharge. The
convening authority (CA) approved the sentence as adjudged, but
suspended execution of confinement in excess of 84 months,
pursuant to the pretrial agreement (PTA).

     On appeal, the appellant asserts that a PTA condition
requiring him to withdraw his motion to dismiss for a violation
of his right to a speedy trial was impermissible. He urges us
to void this condition and grant him relief for the violation.
The Government concedes that the condition was impermissible,
but claims that the appellant failed to preserve the issue since
he did not litigate the issue at trial and then pleaded guilty
unconditionally. In the alternative, the Government argues that
the appellant has failed to make a colorable claim that relief
is warranted.

     Having examined the record of trial, the assignments   of
error, and the pleadings of the parties, we conclude that   the
findings and the sentence are correct in law and fact and   that
no error materially prejudicial to the substantial rights   of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                                Background

     On 08 November 2012, the appellant posted an online
advertisement searching for a “dirty taboo couple.” Prosecution
Exhibit 1. An undercover agent (UCA) of the Naval Criminal
Investigative Service contacted the appellant posing as the wife
of a Marine with two daughters, aged four and seven years old.
The appellant and UCA communicated via email wherein the
appellant offered to pay for the children’s underwear and
pictures of child pornography, and for the opportunity to engage
in sexual activity with the children.

     On 13 November 2012, the appellant met and provided another
UCA, purportedly the father of the children, with $45.00 in
exchange for what he believed were items of children’s
underclothing and a disc purporting to contain child
pornography. The UCA then drove the appellant to a house where
the appellant believed he was going to engage in sexual activity
with the children. Police were waiting at the home and arrested

1
    10 U.S.C. §§ 880 and 934.
                                    2
the appellant upon his arrival. The appellant admitted to the
arresting officer that he intended to engage in sexual
intercourse with the children and that he had received,
possessed, and distributed child pornography. The appellant
also admitted having sent R.R., a 15-year-old girl he met while
speaking to her High School Junior ROTC class, a picture of his
penis from his cell phone.

     On 14 November 2012, the appellant was ordered into
pretrial confinement solely for the offenses that had occurred
the day before, namely, attempted rape and sexual assault of two
children and child pornography.2 These charges were preferred on
04 December 2012 and the appellant, represented by civilian
defense counsel, was arraigned on 23 April 2013. An agreed upon
trial date was established for 27 Aug 2013.3

     On 16 April 2013, the Government preferred a second set of
charges, alleging that the appellant indecently exposed his
penis to R.R. and a separate specification of possessing child
pornography. These charges were later entitled Additional
Charges I and II. On 17 July 2013, the Government preferred yet
another charge alleging that the appellant wrongfully
distributed a picture of his penis to R.R., later entitled
Additional Charge III. On 05 August 2013, the appellant was
arraigned at a separate general court-martial on Additional
Charges I-III where he objected to joinder of all charges at a
single court-martial. The appellant was not represented by his
civilian defense counsel on these additional charges. At
arraignment, the parties agreed to a “Pretrial Information
Report” (PTIR) that established a full trial schedule, including
a deadline of 11 September 2013 for motions and a trial date of
19 November 2103.

      Notwithstanding the motions deadline, on 18 September 2013
the appellant filed a motion to dismiss Additional Charges I-III
based upon violations of his right to a speedy trial under RULE
FOR COURT MARTIAL 707, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.), Article 10, UCMJ, and the Sixth Amendment. The Government
responded on 03 October 2013. Citing progress on pretrial
negotiations, the defense requested two one-week continuances to
the Article 39(a), UCMJ, motion hearing. However, on 18 October


2
  The appellant remained in pretrial confinement until he was sentenced on 12
November 2013.
3
  The appellant did not contend (either at trial or on appeal) that his speedy
trial right was violated as to the original charges.
                                      3
2013, prior to litigating the motion, the appellant entered into
a PTA with the CA, which contained the following provision:

     I agree to withdraw the currently pending “Defense
     Motion to Dismiss.” I understand that if this
     agreement becomes null and void, I will be able to re-
     file any such withdrawn motion.

Appellate Exhibit XV, ¶ 14(g).

     On 12 November 2013, the appellant agreed to joinder of all
charges, withdrew his motion to dismiss, and entered pleas of
guilty consistent with the terms of the PTA.

                                Discussion

     Whether a condition of a PTA is impermissible is a question
of law reviewed de novo. See United States v. Tate, 64 M.J.
269, 271 (C.A.A.F. 2007). “A term or condition in a [PTA] shall
not be enforced if it deprives the accused of . . . the right to
a speedy trial . . . .” R.C.M. 705(c)(1)(B). This unequivocal
rule is buttressed by decades of controlling case law holding
that PTAs may not be conditioned on the accused's waiver of his
statutory and constitutional right to speedy trial. See United
States v. Cummings, 38 C.M.R. 174, 176 (C.M.A. 1968); see also
United States v. Mizgala, 61 M.J. 122 (C.A.A.F. 2005) and cases
cited therein. This is so because speedy trial rights are
“fundamental rights” that must not be subject to bargaining.
Mizgala, 61 M.J. at 124 (citing United States v. Parish, 38
C.M.R. 209, 214 (C.M.A. 1968)); see R.C.M. 705(c)(1)(B),
Analysis at A21-40.

     Whether the parties style the PTA condition as “withdrawal”
or “waiver” matters not since the former, followed by an
unconditional guilty plea, operates as the latter.
Additionally, the record is clear that the parties understood
the withdrawal to act as waiver.4 Accordingly, we find this
condition is impermissible. Tate, 64 M.J. at 271.



4
  In an exhibit entitled, “Sentencing Memo (Continuation of Lance Corporal
Wilder’s unsworn statement through counsel),” the civilian defense counsel
argued: “The conviction will stick. There were motions pending and waived by
this plea that could have resulted in charges being dismissed, perhaps with
prejudice. Even if the motions were denied, there would be appellate issues
that would have kept this case active for years, perhaps resulting in a
retrial. Pleading guilty removed the real possibility charges would be
dismissed and removed realistic appellate issues.” Defense Exhibit B at 1.
                                     4
     Despite the illegal PTA provision requiring the appellant
to withdraw his speedy trial motion, the Government urges us to
apply waiver by virtue of the appellant’s unconditional guilty
plea and failure to litigate his Article 10 motion. Government
Answer of 7 Jul 2014 at 12-14. We decline to do so. In the
event we do not find waiver, the appellant must set forth a
“prima facie showing or a colorable claim that he is entitled to
relief.” United States v. McLaughlin, 50 M.J. 217, 219
(C.A.A.F. 1999) (citations omitted). We find he has done so.
Accordingly, we will strike the impermissible provision and
provide the appellant that to which he was entitled at trial:
review of whether the Government violated his right to a speedy
trial.5

                                 R.C.M. 707

     Initially, we must determine when the speedy trial clock
began on the additional charges. R.C.M. 707(b)(2) explains that
“[w]hen charges are preferred at different times, accountability
for each charge shall be determined from the appropriate date
under subsection (a) of this rule for that charge.” R.C.M.
707(a) states, in relevant part, that the speedy trial clock
commences upon the preferral of charges or the imposition of
restraint. Since the appellant was not ordered into pretrial
confinement on the additional charges, a plain reading of this
rule indicates the speedy trial clock on each set of these
charges commenced on the dates of preferral.

     However, citing United States v. Bray, 52 M.J. 659
(A.F.Ct.Crim.App. 2000) for the proposition that the speedy
trial clock began to run “when the Government had in its
possession substantial information on which to base the
preference of that charge,”6 the appellant argues that the R.C.M.
707 speedy trial clock commenced on 14 November 2013, the date
pretrial confinement began. Appellant’s Brief at 5.

5
  The appellant’s brief and motion (AE VII) aver sufficient facts to
constitute a “prima facie” claim of speedy trial violation. Despite the lack
of findings at the trial level, the record contains the appellant’s motion to
dismiss and the Government’s reply, as well as attached exhibits with a
detailed chronology of pertinent events. Neither side desired to call
witnesses on the motion and the timeline associated with the speedy trial
motion is uncontested. Therefore, applying our fact-finding ability under
Article 66, UCMJ, we are confident the record contains adequate information
to obviate the necessity for remand.
6
  Bray, 52 M.J. at 662 (citing United States v. Talavera, 8 M.J. 14 (C.M.A.
1979)).


                                      5
     This “substantial information” rule originated in United
States v. Johnson, 48 C.M.R. 599 (C.M.A. 1974). In that case,
the Court of Military Appeals held that, for offenses discovered
after the accused was placed into pretrial confinement, “the
delay should commence when the Government had in its possession
substantial information on which to base the preference of
charges.” Id. at 601. However, we find the appellant’s
reliance on this test misplaced. Johnson created a judicial
rule as part of the Court of Military Appeals jurisprudence that
established the presumption of an Article 10 violation when
pretrial confinement exceeded three months. United States v.
Burton, 44 C.M.R. 166 (C.M.A. 1971). Since then, the President
has promulgated R.C.M. 707, which contains extensive procedural
rules relating to the right to a speedy trial and Burton was
thus overruled in favor of R.C.M. 707. United States v.
Kossman, 38 M.J. 258, 261 (C.M.A. 1993).

     We find that the Court of Military Appeals’s holding in
Kossman voids the Johnson rule as well.7 See United States v.
Robinson, 28 M.J. 481, 482-83 (C.M.A. 1989) (not error to
decline to apply Burton-based precedent in light of R.C.M. 707).
We hold that R.C.M. 707(a)(1) establishes the commencement of
the speedy trial clock for the additional charges as the dates
of preferral. Since the accused was arraigned on Additional
Charges I and II 111 days after preferral, and on additional
charge III 19 days after preferral, we conclude that the
appellant’s rights under R.C.M. 707 were not violated.

                                 Article 10

     We turn next to whether the Government violated Article 10,
UCMJ, which provides: “When any person subject to this chapter
is placed in arrest or confinement prior to trial, immediate
steps shall be taken to inform him of the specific wrong of
which he is accused and to try him or to dismiss the charges and
release him.” Here, the appellant declares that “Article 10 is
triggered in this case because the accused was confined.”
Appellant’s Brief at 8. This is an incomplete statement of the
law. Pretrial confinement triggers Article 10 only to those
charges upon which pretrial confinement was ordered. See United
States v. Proctor, 58 M.J. 792, 797 (A.F.Ct.Crim.App. 2003)
(when already serving pretrial confinement, speedy trial clock

7
  We also find more persuasive than Bray the more recent Air Force case of
United States v. Proctor, 58 M.J. 792, 797 (A.F.Ct.Crim.App 2003), decided
after Bray, which held that the speedy trial clock for additional charges not
the basis of pretrial confinement began on the date of preferral, in
accordance with R.C.M. 707(a)(1).
                                      6
does not begin to run on new charges until date of preferral);
see also United States v. Nelson, 28 M.J. 922, 928 (N.M.C.M.R.
1988) (If a person suspected of one offense is placed in
pretrial confinement pending investigation of that offense,
speedy trial clock starts with respect to that offense when he
is confined; no Article 10 clock was triggered for subsequent
offenses for which he was not confined).

     We glean from the record that the appellant was placed in
pretrial confinement for attempted rape of the notional children
and receiving, possessing, and distributing child pornography
from a period of time between 07 August 2012 and 28 October
2012.8 Therefore, we hold that, under these circumstances,
Article 10 was inapplicable to the additional charges to which
the appellant pleaded guilty.

                         Sixth Amendment

     Finally, we turn to whether the Government violated the
appellant’s Sixth Amendment right to a speedy trial. The Sixth
Amendment provides, inter alia, “[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial .
. . .” U.S. CONST. amend. VI. In the military context, the
Sixth Amendment speedy trial right applies upon preferral or
imposition of pretrial restraint. United States v. Vogan, 35
M.J. 32, 33 (C.M.A. 1992) (citing United States v. Marion, 404
U.S. 307, 320 (1971)) (additional citation omitted). For Sixth
Amendment purposes, the speedy trial clock continues to run
until the trial actually commences. United States v. Cooper, 58
M.J. 54, 60 (C.A.A.F. 2003).

     As discussed, the appellant was not subjected to pretrial
restraint on the additional charges, thus his Sixth Amendment
speedy trial right also began on the date of preferral. See
Vogan, 35 M.J. 33 (Sixth Amendment protection of the right to
speedy trial does not apply when accused is already confined for
other reasons). Therefore, the relevant time period for Sixth
Amendment analysis is between preferral and 13 November 2013,
the trial date. In examining whether the appellant's Sixth
Amendment speedy trial right has been violated, we apply the
four factors set forth in Barker v. Wingo, 407 U.S. 514, 530
(1972): (1) the length of the delay; (2) the reasons for the
delay; (3) the appellant's assertion of the right; and (4)
prejudice to the appellant. United States v. Tippit, 65 M.J.
69, 73 (C.A.A.F. 2007). “Unless the delay is facially

8
    AE IX at 25, 30.
                                7
unreasonable, the full due process analysis will not be
triggered.” United States v. Merritt, 72 M.J. 483, 489
(C.A.A.F. 2013) (citation and internal quotation marks omitted).
If the due process analysis is triggered by a facially
unreasonable delay, we balance our analysis of the factors to
determine whether there has been a due process violation. Id.

1. Length of Delay. The accused was arraigned on Additional
Charges I and II 111 days after preferral and pleaded guilty 92
days after that. Under these circumstances, we find the delay
sufficient to trigger a full Barker analysis.

2. Reason for Delay. The additional charges required the
standard processing for a general court martial. The Article
32, UCMJ, hearing was held three days after preferral and the
report returned 12 working days later. The record indicates the
defense requested an expert, initially objected to joinder of
charges, and agreed to a PTIR on 05 August 2013. The PTIR set
forth deadlines for the parties that culminated in an agreed
upon motions date of 11 September 2013 and a trial date of 19
November. Notwithstanding the agreed upon motions date, trial
defense counsel filed a speedy trial motion on 18 September
2013, claiming that the need for coordination with civilian
defense counsel on the “parallel general court-martial” was good
cause for his untimely submission. The parties then entered
into PTA negotiations, took steps to merge the charges, and
coordinated schedules (to include that of a civilian defense
counsel) for an Article 39(a) session where the accused would
enter pleas and be sentenced. The defense requested two
continuances during this time frame, both of which stated the
request was “in the best interests of the accused.”

3. Demand for a Speedy Trial. Prior to the speedy trial
motion, the appellant did not demand a speedy trial. Once
demanded, the defense submitted two continuance requests. As
our superior court has recognized, “[s]tratagems such as
demanding speedy trial now, when the defense knows the
Government cannot possibly succeed, only to seek a continuance
later, when the Government is ready, may belie the genuineness
of the initial request.” Kossman, 38 M.J. at 262. Here, the
defense did not make a demand for speedy trial until over one
hundred days beyond preferral and in the course of what appears
to have been pretrial negotiations.

4. Prejudice to the Appellant. The Supreme Court has
established the following test for prejudice in the speedy trial
context:

                                8
             Prejudice, of course, should be assessed in the
        light of the interests of defendants which the speedy
        trial right was designed to protect. This Court has
        identified three such interests: (i) to prevent
        oppressive pretrial incarceration; (ii) to minimize
        anxiety and concern of the accused; and (iii) to limit
        the possibility that the defense will be impaired. Of
        these, the most serious is the last, because the
        inability of a defendant adequately to prepare his
        case skews the fairness of the entire system.

Mizgala, 61 M.J. at 129 (quoting Barker, 407 U.S. at 532
(footnote omitted)).

     The appellant has not established prejudice under these
criteria. A bald assertion that the appellant was “confined in
a facility not designed for long-term confinement” and “had to
live under the threat and uncertainty of a court martial”9 is
insufficient. First, the appellant was not confined on the
charges upon which the speedy trial violations are alleged.
Therefore, it cannot be said he suffered any pretrial
incarceration prejudice. Even if he did, the appellant would
receive day-for-day confinement credit and there is no evidence
that the appellant’s anxiety exceeded the norm, that he wasn’t
paid, or that his conditions were unduly harsh. Most
importantly, the appellant’s defense was not impaired in any
way. Accordingly we find the appellant was not prejudiced by
any delay.

                              Conclusion

     After balancing the Barker factors, we conclude that the
appellant suffered no violation of his right to a speedy trial,
and the findings and the sentence as approved by the CA are
affirmed.

                                     For the Court



                                     R.H. TROIDL
                                     Clerk of Court




9
    Appellant’s Brief at 10
                                     9
