On August 12, 2020, ACCA set aside the conviction and sentence of Sergeant First Class Corey L. Bruner (Appellant). Opinion here.
Pursuant to his pleas, appellant was found guilty of one specification of attempted larceny, one specification of violating a lawful general regulation, one specification of wrongfully distributing a controlled substance, one specification of wrongfully using a controlled substance, and six specifications of larceny, in violation of Articles 80, 92, 112a, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 892, 912a, and 921 UCMJ. Contrary to his pleas, appellant was found guilty of one specification of attempted robbery, in violation of Article 80, UCMJ. Appellant was sentenced to be discharged from the service with a bad-conduct discharge, to be confined for twenty-seven months, and to be reduced to the grade of E-1.
Several weeks after trial, the court reporter discovered a malfunction in the recording equipment. As a result, approximately seventeen minutes of the government's closing argument on the one contested specification was not recorded and unavailable for transcription, leaving the record incomplete. Appellant did not raise the issue in his post-trial matters and on two occasions requested speedy post-trial processing. On appeal, Appellant argued the convening authority improperly approved his sentence without a substantially verbatim transcript in violation of Rule for Courts-Martial (R.C.M.) 1103(f). Appellant also argued that he was entitled to relief because the government took 216 days from sentencing until action to process his record of trial. After reviewing Appellant’s raised issues, ACCA agreed on both counts, and returned the case to the convening authority for the possibility of a rehearing on both findings and sentence.
As to Appellant’s first argument, the parties agreed the scale of the missing transcript rendered the transcript non-verbatim, and the court concurred. Specifically missing from the transcript was the bulk of the government's argument on findings for the one contested specification. However, the guilty plea portion of Appellant's court-martial, which took place a day earlier, was not impacted at all. Both parties urged the court to set aside only those specifications contrary to his pleas, not those in accordance, given what was missing from the transcript. However, ACCA concluded that “neither R.C.M. 1103 nor Davenport make room for any parsing among sessions or offenses in evaluating the completeness of a record” and declined to do so here.
Appellant also alleged he is entitled to relief as a result of the dilatory post-trial processing of his case. ACCA agreed. Following Moreno, the court held that a presumption of unreasonable post-trial delay existed given that the convening authority failed to take action within 120 days of completion of trial, and applied the four factor balancing test from Barker v. Wingo to determine whether the post-trial delay constituted a due process violation. Given that Appellant twice demanded speedy trial, and there was an obvious error that needed correction, ACCA found Appellant entitled to relief.. Interestingly, the court found Moreno sentencing relief may be appropriate, but instead relied on the broader powers granted by Art. 66 and encouraged appellant to raise the issue if the case is raised again to the ACCA on a rehearing.
See United States v. Seeto, ACM 39247, [2018 BL 403565], 2018 CCA LEXIS 518, at*19 n.7 (A.F. Ct. Crim. App. 26 Oct. 2018) (unpublished).
United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006)
“(1) length of the delay; (2) reasons for the delay; (3) the appellant's assertion of his right to a timely appeal; and (4) prejudice to the appellant." Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F. 2004)
ACCA noted that typically, after finding an appellant is entitled to relief for dilatory post-trial processing, the court would take action to provide specific relief based on the violation. However, given that the case was to be returned to the convening authority for the possibility of a rehearing, ACCA has declined to provide specific sentence relief at this point in the proceedings.