United States v. Gammage

U NITED S TATES A IR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM S32731 (f rev) ________________________ UNITED STATES Appellee v. Tyrone GAMMAGE Airman (E-2), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Upon Further Review Decided 15 December 2023 ________________________ Military Judge: Colin P. Eichenberger; Christopher D. James (remand).

Sentence: Sentence adjudged on 17 May 2022 by SpCM convened at Francis E. Warren Air Force Base, Wyoming. Sentence entered by mili- tary judge on 8 June 2022: Bad-conduct discharge, confinement for 6 months, forfeiture of $1,190.00 pay per month for 6 months, and reduc- tion to E-1.

For Appellant: Major Samanth P. Golseth, USAF; Jacob P. Frankson, Legal Extern. 1 For Appellee: Colonel Matthew P. Talcott, USAF; Lieutenant Colonel Thomas J. Alford, USAF; Major Brittany M. Speirs, USAF; Captain Olivia B. Hoff, USAF; Captain Jocelyn Q. Wright, USAF; Mary Ellen Payne, Esquire; Abigail E. Thomas, Legal Extern. 2 Before ANNEXSTAD, GRUEN and KEARLEY, Appellate Military Judges.

Senior Judge ANNEXSTAD delivered the opinion of the court, in which Judge GRUEN and Judge KEARLEY joined.

United States v. Gammage, No. ACM S32731 (f rev)

________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ ANNEXSTAD, Senior Judge: On 17 May 2022, Appellant was tried by a special court-martial at Francis E. Warren Air Force Base, Wyoming. In accordance with his pleas and pursu- ant to a plea agreement, a military judge found Appellant guilty of one specifi- cation of failure to obey a lawful order, one specification of destruction of non- military property, two specifications of domestic violence, and one specification of disorderly conduct, in violation of Articles 92, 109, 128b, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 909, 928b, 934.3 The mili- tary judge sentenced Appellant to a bad-conduct discharge, confinement for six months, forfeiture of $1,190.00 pay per month for six months, and reduction to the grade of E-1. The convening authority took no action on the findings or sentence.

On 5 May 2023, Appellant submitted his assignment of error brief in which he raised one issue: the record of trial was incomplete in that it was missing all eight attachments to the stipulation of fact, which was admitted as a pros- ecution exhibit during his court-martial. On 5 June 2023, we remanded this case to the Chief Trial Judge, Air Force Trial Judiciary, to address the missing attachments to Appellant’s stipulation of fact. United States v. Gammage, No. ACM S32731, 2023 CCA LEXIS 240, at *2 (A.F. Ct. Crim. App. 5 Jun. 2023) (order).

On 23 June 2023, Appellant’s case was re-docketed with this court. On 18 August 2023, Appellant submitted another assignment of error brief and again alleged that the record of trial was incomplete, in that it still was missing four of ten photographs that were part of Attachment 6 to the stipulation of fact.

Appellant also raised one additional issue: whether the Government’s submis- sion of an incomplete record of trial to this court subjected Appellant to unrea- sonable post-trial delay. On 29 September 2023, we remanded this case a sec- ond time to the Chief Trial Judge, Air Force Trial Judiciary, specifically to ad- dress the missing photographs that were part of Attachment 6 to Appellant’s stipulation of fact. United States v. Gammage, No. ACM S32731 (f rev), 2023 CCA LEXIS 421, at *2 (A.F. Ct. Crim. App. 29 Sep. 2023) (order).

United States v. Gammage, No. ACM S32731 (f rev)

On 13 October 2023, Appellant’s case was again re-docketed with this court.

Appellant submitted another assignment of error brief and agreed that the rec- ord of trial was complete. Appellant did not raise any new issues. As both par- ties agree that the record of trial is complete, we find that issue is resolved, and no further discussion is warranted.

We discuss the remaining issue regarding unreasonable post-trial delay be- low. Finding no error that materially prejudiced a substantial right of Appel- lant, we affirm the findings and sentence.

I. BACKGROUND Appellant’s court-martial concluded on 17 May 2022, and the entry of judg- ment was signed by the military judge on 8 June 2022. Appellant’s case was originally docketed with this court on 11 July 2022. Subsequently, and as dis- cussed above, Appellant’s case was remanded twice, with the final docketing date occurring on 13 October 2023.

II. DISCUSSION Appellant contends that the Government’s submission of an incomplete rec- ord of trial with this court subjected him to unreasonable post-trial delay be- cause a complete record of trial was not docketed with this court in compliance with United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) and United States v. Livak, 80 M.J. 631 (A.F. Ct. Crim. App. 2020). We disagree, and find no relief is warranted.

We review the question of whether an appellant’s due process rights are violated because of post-trial delay de novo. Livak, 80 M.J. at 632. In Moreno, the United States Court of Appeals for the Armed Forces identified thresholds for facially unreasonable delay during three particular segments of the post- trial and appellate process. 63 M.J. at 141–43. Specifically, our superior court established a presumption of facially unreasonable delay where: (1) the con- vening authority did not take action within 120 days of the completion of trial, (2) the record was not docketed with the Court of Criminal Appeals (CCA) within 30 days of the convening authority’s action, or (3) the CCA did not ren- der a decision within 18 months of docketing. Id. at 142.

In Livak, this court recognized that “the specific requirement in Moreno which called for docketing to occur within 30 days of action no longer helps us determine an unreasonable delay under the new procedural rules.” 80 M.J. at 633. In acknowledgment of this fact, this court established an aggregated sen- tence-to-docketing 150-day threshold for facially unreasonable delay in cases, like Appellant’s, that were referred to trial on or after 1 January 2019.

United States v. Gammage, No. ACM S32731 (f rev)

“In the absence of a due process violation, this court considers whether re- lief for excessive post-trial delay is warranted consistent with this court’s au- thority under Article 66(d), UCMJ, 10 U.S.C. § 866(d).” Id. at 632; see also United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); United States v. Gay¸ 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016).

Appellant’s primary argument on appeal is that a complete record of trial in his case was not docketed with this court until 13 October 2023—over 500 days after Appellant was sentenced—and well past the 150-day threshold es- tablished by this court in Livak. However, we do not find a facially unreasona- ble delay under Livak or Moreno. We are not aware of any authority where our superior court has articulated that only a complete record of trial will forestall a presumption of post-trial delay. In Appellant’s case, the record of trial was docketed with this court on 11 July 2022, some 55 days after Appellant was sentenced. As this was well below the 150-day standard, we find that the Gov- ernment categorically complied with this court’s decision in Livak, and that no facially unreasonable post-trial delay occurred. Furthermore, since this court’s decision is being rendered within 18 months of original docketing (11 July 2022), we find no facially unreasonable delay of appellate review has occurred.

Additionally, we conclude that Appellant’s due process rights have not been violated.

While we recognize that records of trial are remanded on occasion due to omissions or other defects, we decline to create a new requirement for cases that are docketed, remanded, and later re-docketed with this court. We find the original standards announced in Moreno, and its progeny, adequately pro- tect “an appellant’s due process right to timely post-trial and appellate review.”

Livak, 80 M.J. at 633.

Finally, recognizing our authority under Article 66(d), UCMJ, we have also considered whether relief for excessive post-trial delay is appropriate even in the absence of a due process violation. See Tardif, 57 M.J. at 225. After consid- ering the factors enumerated in Gay, 74 M.J. at 744, we conclude it is not.

III. CONCLUSION The findings and sentence as entered are correct in law and fact and no error materially prejudicial to the substantial rights of Appellant occurred. Ar- ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).

United States v. Gammage, No. ACM S32731 (f rev)

Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court