           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                            Airman CHRISTOPHER J. MARTIN
                                  United States Air Force

                                        ACM S32035 (recon)

                                            05 August 2014

         Sentence adjudged 1 February 2012 by SPCM convened at Davis-Monthan
         Air Force Base, Arizona. Military Judge: W. Shane Cohen.

         Approved sentence: Bad-conduct discharge and reduction to E-1.

         Appellate Counsel for the Appellant:       Major Matthew T. King;
         Captain Travis K. Ausland; Captain Michael A. Schrama; and Dwight H.
         Sullivan, Esquire.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel C. Taylor Smith; Major Brian C. Mason; Major Daniel
         J. Breen; and Gerald R. Bruce, Esquire.

                                                  Before

                             ALLRED, HARNEY, and MITCHELL
                                 Appellate Military Judges

                                   OPINION OF THE COURT
                                  UPON RECONSIDERATION

                    This opinion is subject to editorial correction before final release.



PER CURIAM:

        At a special court-martial composed of officer members, the appellant was found
guilty, in accordance with his pleas, of willfully disobeying a lawful order, dereliction of
duty, and driving a motor vehicle while drunk, in violation of Articles 90, 92, and 111,
UCMJ, 10 U.S.C. §§ 890, 892, 911. The court sentenced him to a bad-conduct discharge
and reduction to E-1. The convening authority approved the sentence as adjudged.
                                            Procedural History

         On 25 January 2013, The Judge Advocate General of the Air Force appointed
Mr. Laurence M. Soybel to the position of appellate military judge on the Air Force
Court of Criminal Appeals pursuant to Article 66(a), UCMJ, 10 U.S.C. § 866(a). At the
time of this appointment, Mr. Soybel, a retired Air Force officer and former appellate
military judge, was serving as a civilian litigation attorney in the Department of the Air
Force. On 25 June 2013, the Secretary of Defense, “[p]ursuant to [his] authority under
title 5, United States Code, section 3101 et seq.,” issued a memorandum that “appoint[ed]
Mr. Laurence M. Soybel, a civilian employee of the Department of the Air Force, to
serve as appellate military judge on the Air Force Court of Criminal Appeals.”
Memorandum from Sec’y of Def. Chuck Hagel for Sec’y of the Air Force Eric Fanning
(25 June 2013).

      When the appellant’s case was originally before us, the appellant challenged the
providence of his plea of guilty to dereliction of duty.

        On 9 August 2013, we affirmed the approved findings and sentence in the
appellant’s case.1 United States v. Martin, ACM 38107 (A.F. Ct. Crim. App.
9 August 2013) (unpub. op.). The appellant moved this Court to vacate its decision,
asserting, on the basis of Mr. Soybel’s participation, that the case was decided by an
improperly constituted panel. The appellant also filed a petition for grant of review with
our superior court. On 31 October 2013, our superior court converted the appellant’s
motion to vacate, pending before this Court, into a motion for reconsideration, and
dismissed the appellant’s petition for grant of review without prejudice.              On
15 April 2014, our superior court issued its decision in United States v. Janssen,
73 M.J. 221, 225 (C.A.A.F. 2013), holding that the Secretary of Defense did not have the
legislative authority to appoint civilian employees as appellate military judges and that
his appointment of Mr. Soybel to this Court was “invalid and of no effect.”

        In light of Janssen, we granted the appellant’s motion for reconsideration on
29 April 2014 and permitted the appellant to file a supplemental assignment of errors. In
addition to the earlier raised issue that his plea was not provident, the appellant asserts he
is entitled to relief due to unreasonable appellate delay. With a properly constituted
panel, we have reviewed the appellant’s case, to include the appellant’s previous and
current filings and the previous opinions issued by this Court. Finding no error that
materially prejudices a substantial right of the appellant, we affirm.




1
  After the appointment of Mr. Lawrence Soybel by the Secretary of Defense on 25 June 2013, this Court sua sponte
reconsidered its 2 May 2013 opinion and issued a new opinion on 9 August 2013. The panels had identical
members.


                                                       2                                    ACM S32035 (recon)
                                  Providence of the Plea

       “A military judge’s decision to accept a guilty plea is reviewed for an abuse of
discretion.” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). “In reviewing
the providence of Appellant’s guilty pleas, we consider his colloquy with the military
judge, as well any inferences that may reasonably be drawn from it.” United States v.
Carr, 65 M.J. 39, 41 (C.A.A.F. 2007). A military judge abuses this discretion when
accepting a plea if he does not ensure the accused provides an adequate factual basis to
support the plea during the providency inquiry.           See United States v. Care,
40 C.M.R. 247 (C.M.A. 1969). This is an area in which the military judge is entitled to
much deference. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F 2008).

        Our reviewing standard for determining if a guilty plea is provident is whether the
record presents a substantial basis in law or fact for questioning it. Id.; United States v.
Prater, 32 M.J. 433, 436 (C.M.A. 1991). At trial, the military judge must (1) ensure the
accused understands the facts that support his guilty plea (“what” he did); (2) be satisfied
the accused understands the law applicable to his acts (“why” he is guilty); and (3) be
satisfied the appellant actually is guilty. See United States v. Medina, 66 M.J. 21, 26
(C.A.A.F. 2008) (citing Care, 40 C.M.R. 250–51); United States v. Jordan, 57 M.J. 236,
238 (C.A.A.F. 2002).

       During the appellant’s plea inquiry, the military judge explained the elements of
the dereliction of duty offense as follows:

       One, that you had a certain prescribed duty; that is: to refrain from drinking
       alcoholic beverages while under the age of 21 years; Two, that you actually
       knew of the assigned duty; and Three . . . you were derelict in the
       performance of that duty, by drinking alcoholic beverages while under the
       age of 21.

       The military judge told the appellant, “A duty may be imposed by regulation,
lawful order, or a custom of the service,” and the appellant said he understood. The
appellant agreed “the military follow[s] the law of the . . . state where [the member is]
residing with respect to [the] drinking age.” The appellant also said he knew the drinking
age in the state was 21 years, and, as a military member, he had a duty to obey that law
while he was stationed in Arizona.

       After discussing with the appellant the type of drinks and number of times he
drank alcohol, the military judge asked again if the appellant admitted that he had a
prescribed duty to refrain from drinking alcohol while under 21 years of age and that he
knew of this duty. The appellant admitted this was true. The military judge then asked
the appellant to state in his own words what he did to “violate that duty.” The appellant
replied that he drank alcohol when he was 19 years old and stated, “As a military



                                             3                            ACM S32035 (recon)
member, I understand that I have a duty not to drink alcohol if I’m under the age of 21
and stationed in the United States.”

       The appellant argues that his plea of guilty to the specification and charge of
dereliction of duty for underage drinking was improvident based on the case of
United States v. Hayes, 71 M.J. 112 (C.A.A.F. 2012), which was published after the
appellant’s trial.

       In Hayes, the accused pled not guilty to a charge of dereliction of duty by
consuming alcoholic beverages while under the age of 21. The issue in that case was the
sufficiency of the evidence presented by the Government at trial and used to support the
finding of guilty. Id. The Court stated:

       Article 92(3), UCMJ, requires the existence of a duty. The [Manual for
       Courts-Martial, United States (MCM) (2008 ed.)] states that the duty “may
       be imposed by treaty, statute, regulation, lawful order, standard operating
       procedure, or custom of the service.” [MCM, Part. IV, ¶ 16.c.(3)(a)]. It is
       uncontested that consuming alcohol in any saloon, resort, or place where
       alcohol is sold while under the age of twenty-one is a violation of Nevada
       state law. However, even viewed in the light most favorable to the
       prosecution, there is insufficient evidence in the record for any rational trier
       of fact to conclude, for the purposes of Article 92(3), UCMJ, that Appellant
       had a military duty to obey Nevada state law generally.

Id. at 114 (footnotes omitted). The Hayes Court found the proof to be insufficient:

       There is no evidence in the record, and the Government points to none on
       appeal, to support the proposition that Appellant was bound by a military
       duty . . . and subject to sanction under Article 92(3), UCMJ, to obey
       Nevada’s alcohol law, or in the alternative, all state laws in Nevada—an
       obligation imposed on all citizens within the state. . . . In short, Article
       92(3), UCMJ, requires proof of certain military duties, it does not assume
       such duties. We, thus, conclude the evidence is insufficient as a matter of
       law.

Id. at 114–15 (internal citations and footnote omitted).

        The crux of the appellant’s argument is that “nothing established a military duty to
obey state law governing the minimum drinking age.” Specifically, he argues that
“nothing established the source of” the duty not to drink while underage. He also argues
that, like Hayes, there was no proof of any military duty, merely an assumption that a
duty existed.




                                              4                             ACM S32035 (recon)
       While it is true the military judge never asked the appellant whether he knew the
duty was imposed by regulation, lawful order, or custom of the service, that type of detail
is not necessary for a provident plea. It is enough that an accused recognize that a
military duty existed and he was derelict in the performance of that duty by drinking
alcoholic beverages while under the age of 21. Cf. Carr, 65 M.J. at 41 (The Care inquiry
only had to establish that the accused generally lacked training and qualifications to
administer gynecological exams and did not have to detail “how his actual skills were
inferior to those of a real physician, and to confirm that they were.”).

       Importantly, the appellant’s admissions and statements went much further in this
case than the proof did in the Hayes case, where the Government only proved what the
state drinking age was, without any evidence the accused had a military duty to obey it.
Essentially, in Hayes, the appellant was found guilty merely on the proof that would be
needed to show a violation of the state drinking age. There was no proof of a violation of
any independent military duty. Here, the appellant admitted a military duty existed; there
was no omission of this issue during the Care inquiry nor was there the mere assumption
of a military duty as occurred in Hayes.

       We believe this case is further distinguishable from the Hayes case. The legal
standards applicable to the Government in Hayes to sufficiently prove every element of
an offense in a contested case are vastly different than a judge’s obligation to ensure that
an accused understands the law and the facts during his own guilty plea. The two are not
comparable. Accordingly, we find no “substantial basis” in law or fact for questioning
the guilty plea. See Prater, 32 M.J. at 436

                            Appellate Review Time Standards

        We review de novo “[w]hether an appellant has been denied [his] due process
right to a speedy post-trial review . . . and whether [any] constitutional error is harmless
beyond a reasonable doubt.” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006).
A presumption of unreasonable delay arises when appellate review is not completed and
a decision is not rendered within 18 months of the case being docketed before this Court.
See United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). The Moreno standards
continue to apply as a case continues through the appellate process. United States v.
Mackie, 72 M.J. 135, 135–36 (C.A.A.F. 2013). The Moreno standard is not violated
when each period of time used for the resolution of legal issues between this Court and
our superior court is within the 18-month standard. See id. at 136; United States v.
Roach, 69 M.J. 17, 22 (C.A.A.F. 2010).

       This case was docketed for appeal on 2 April 2012, and this Court rendered a
decision on 9 August 2013, within the 18-month standard established in Moreno. As
stated supra, our superior court recently decided one of the judges who participated in
that decision was not properly appointed. See Janssen, 73 M.J. at 222. Accordingly, we


                                             5                            ACM S32035 (recon)
have considered the appellant’s court-martial before a properly constituted panel and
have issued this decision. The time between our superior court’s action and this decision
has not exceeded 18 months; therefore, the Moreno presumption of unreasonable delay is
not triggered. See Mackie, 72 M.J. at 136.

        Additionally, Article 66(c), UCMJ, 10 U.S.C. § 866(c), empowers appellate courts
to grant sentence relief for excessive post-trial delay without the showing of actual
prejudice required by Article 59(a), UCMJ, 10 U.S.C. § 859(a). United States v. Tardif,
57 M.J. 219, 224 (C.A.A.F. 2002); see also United States v. Harvey, 64 M.J. 13, 24
(C.A.A.F. 2006). In United States v. Brown, 62 M.J. 602, 606–07 (N.M. Ct. Crim. App.
2005), our Navy and Marine Court colleagues identified a “non-exhaustive” list of factors
to consider in evaluating whether Article 66(c), UCMJ, relief should be granted for
post-trial delay. Among the non-prejudicial factors are the length and reasons for the
delay; the length and complexity of the record; the offenses involved; and the evidence of
bad faith or gross negligence in the post-trial process. Id. at 607. We find there was no
bad faith or gross negligence in the post-trial processing. The reason for the delay was to
allow this Court and our superior court to fully consider a constitutional issue of first
impression, namely, whether the Secretary of Defense has the authority under the
Appointments Clause2 to appoint civilian employees to the service courts of criminal
appeals. We conclude that sentence relief under Article 66, UCMJ, is not warranted.

                                           Conclusion

       The approved findings and sentence are correct in law and fact and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ. Accordingly, the approved findings and sentence are

                                           AFFIRMED.

Senior Judge HARNEY participated in this decision prior to her retirement.



                      FOR THE COURT


                      STEVEN LUCAS
                      Clerk of the Court




2
    U.S. CONST. art. II, § 2, cl. 2.


                                               6                          ACM S32035 (recon)
