UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                         CAMPANELLA, HERRING, and PENLAND
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                     Private First Class DUSTIN L. STARNER
                          United States Army, Appellant

                                       ARMY 20140370

       Headquarters, U.S. Army Cyber Center of Excellence and Fort Gordon
           John T. Rothwell and Charles A. Kuhfahl Jr., Military Judges
                  Colonel Scott F. Young, Staff Judge Advocate
          Colonel John A. Hamner, Staff Judge Advocate (new post-trial)

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Ryan T. Yoder, JA (on brief); Major Christopher D. Coleman, JA; Captain
Ryan T. Yoder, JA (on reply brief); Lieutenant Colonel Melissa R. Covolesky, JA;
Captain Ryan T. Yoder, JA (on supplemental brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Steven J. Collins, JA; Major Diara Z. Andrews, JA (on brief); Colonel
Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, JA; Major Anne Hsieh,
JA; Major Diara Z. Giles, JA (on supplemental brief).


                                          3 April 2017
                    ---------------------------------------------------------------
                    MEMORANDUM OPINION ON FURTHER REVIEW
                    ---------------------------------------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

HERRING, Judge:

      Reviewing appellant’s case for the second time, we find the government
again caused error in the post-trial processing by: 1) soliciting a second statement
from the victim, 2) providing to the convening authority a statement from an
acquaintance of the victim; 3) providing incorrect advice to the convening
authority; and 4) exceeding the presumptive timeline for post-trial processing.

      A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of rape, sexual assault, and forcible sodomy, in violation of
Articles 120 and 125, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925
STARNER—ARMY 20140370

    (2012) [hereinafter UCMJ]. The convening authority approved the adjudged
    sentence of a dishonorable discharge, confinement for six years, and reduction to
    the grade of E-1.

       On 25 July 2016, this court set aside the convening authority’s initial action
and returned this record of trial for a new staff judge advocate recommendation
(SJAR) and action by the same or different convening authority. United States v.
Starner, ARMY 20140370, 2016 CCA LEXIS 456 (Army Ct. Crim. App. 25 Jul.
2016) (summ. disp.). We did so because we could not determine from the record
whether the victim’s statement was provided to the convening authority or whether
appellant was provided an opportunity to comment on the victim’s statement at any
time prior to action. The government, instead of following this court’s clear
direction to ensure the convening authority reviewed the victim’s statement,
solicited a second statement from the victim. In response, the government received
a new statement from the victim as well as one from an acquaintance of the victim.
Both of these supplemental statements and the SJAR were provided to the convening
authority, who took action on 15 November 2016. The record is now before us for
further review and appellant raises two assignments of error, both of which warrant
discussion and relief. We find the matters raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) to be meritless.

                               Matters Submitted by Victim

          Here the government was already in possession of a statement from the
    victim submitted in accordance with Rule for Courts-Martial [hereinafter R.C.M.]
    1105A. This case was returned to the convening authority because it was unclear
    from the record whether this statement had been provided to the convening
    authority and the appellant. We did not ask for, nor anticipate, the government
    contacting the victim to obtain an additional statement. In fact, the government
    appears to have further traumatized the victim by this misstep as well.

      The plain language of R.C.M. 1105A makes it abundantly clear it is the crime
victim who has the right to submit a statement–not other individuals. *
Consequently, it was error for the government to provide the letter from the
acquaintance to the convening authority.


*
 R.C.M. 1105A(a) states: A crime victim of an offense tried by any court-martial
shall have the right to submit a written statement to the convening authority after the
sentence is adjudged. R.C.M. 1105A(b) defines “crime victim” as: “a person who
has suffered direct physical, emotional, or pecuniary harm as a result of the
commission of an offense of which the accused was found guilty, and on which the
convening authority is taking action under R.C.M. 1107.


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STARNER—ARMY 20140370

       The government defends its decision to include matters submitted by someone
other than the accused and the victim of his crime by explaining that the crime
victim’s statement “specifically incorporates by reference the statement from [the
third party that she] met in WTB.” The government argues appellant “did not
provide an adequate legal basis for why R.C.M. 1105 did not apply. Nor does he do
so on appeal.” However, neither R.C.M. 1105 nor R.C.M. 1105A apply to
individuals other than the accused (R.C.M. 1105) and the crime victim (R.C.M.
1105A) if the victim is at least eighteen years of age.

      We are troubled that both the second statement from the victim and the
statement from the acquaintance refer to additional trauma caused by the
government contacting the victim for an additional statement. The statement from
the acquaintance is almost solely focused on how the victim reacted when she
received the letter from the government requesting another statement. We find
appellant was prejudiced by having this information go to the convening authority
without explanation. Appellant should be punished for the consequences of his
criminal conduct, not the government’s erroneous actions. Accordingly we will
grant appropriate relief in our decretal paragraph.

                   Erroneous Advice to the Convening Authority

      The addendum to the second SJAR, dated 15 November 2016, did not address
defense counsel’s objections to the additional material submitted by the victim and
her acquaintance. Additionally, the addendum stated the convening authority
could not disapprove of any finding of guilty and referenced a version of R.C.M.
1107 inapplicable to appellant’s case, which the government conceded was error.
However, we find this error to be harmless. Appellant was not requesting any of
the actions on which the convening authority was erroneously advised. The
appellant’s clemency request was a straightforward request for his sentence to be
reduced from six years confinement to three years. There was nothing in the
erroneous advice that would lead the convening authority to believe he did not
have the authority to grant the requested relief. Under these facts, we find no
colorable showing of prejudice from this erroneous advice.

                                 Post-Trial Delay

      Between the initial action on 7 October 2014 and the initial docketing with
our court on 9 February 2015, 125 days elapsed. Then, between the current action
on 15 November 2016 and the current docketing with our court on 22 December
2016, thirty-seven days elapsed. The government declined to address the reasons for
the combined 162 days it took this court to receive the record of trial after the
convening authority took action. (Gov’t Br. at 11).



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STARNER—ARMY 20140370

        There is a presumption of unreasonable delay where a record of trial is not
docketed by the service Court of Criminal Appeals within thirty days of the
convening authority’s action. United States v. Moreno, 63 M.J. 129 (C.A.A.F.
2006). Post-trial delay in the administrative handling and forwarding of the record
of trial and related documents to an appellate court is the “least defensible” type of
post-trial delay and “worthy of the least patience.” United State v. Dunbar, 31 M.J.
70, 73 (C.M.A. 1990).

       Although we find no due process violation in the post-trial processing of
appellant’s case, we must still review the appropriateness of the sentence in light of
the dilatory post-trial processing. UCMJ art. 66(c); United States v. Tardif, 57 M.J.
219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ, 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.”). See United States v. Collazo, 53 M.J. 721, 727
(Army Ct. Crim. App. 2000). We find relief from this court is appropriate. As such
this court provides relief in our decretal paragraph.

                                   CONCLUSION

      The findings of guilty are AFFIRMED. On the basis of the errors noted we
AFFIRM only so much of the sentence as provides for a dishonorable discharge,
confinement for five years and eight months, and reduction to the grade of E-1.

      Senior Judge CAMPANELLA and Judge PENLAND concur.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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




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