United States v. Hobbs

Contrary to his pleas, a military judge sitting alone as a special court-martial convicted appellant of distributing 5.02 grams of marijuana in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. The military judge sentenced appellant to confinement for 100 days, forfeiture of $200.00 pay per month for 4 months, reduction to E-l, and a bad-*1096conduct discharge. The staff judge advocate’s Rule for Courts-Martial (R.C.M.) 1106, Manual for Courts-Martial (MCM), United States, 1984, recommendation was prepared 72 days after the trial. The convening authority finally approved the findings and sentence 412 days after the trial. This was prior to service of the staff judge advocate’s recommendation on defense counsel. There is no explanation whatsoever in the record of trial for this delay. The Government thereafter improperly attempted to serve the recommendation on two different defense counsel.1 In fact, the recommendation has still not been properly served on a defense counsel in accordance with R.C.M. 1106(f), MCM, 1984.

Appellant asserts that the Government’s indifference to and mishandling of the post-trial processing of his case has deprived him of the right to a speedy review. Furthermore, appellant alleges in an uncontroverted and unchallenged affidavit that he cannot secure gainful employment because of his inability to produce a discharge from the Naval Service.2 Based on the prejudice he has suffered, appellant asks this Court to dismiss the charge and its sole specification. Even though we agree that this is another example of inexcusable and unacceptable post-trial delay that has resulted in prejudice to an appellant,3 we will not grant the relief requested. We will, however, take appropriate corrective action.

The United States Court of Military Appeals held in United States v. Clevidence, 14 M.J. 17 (C.M.A. 1982), that reviewing authorities must take corrective action when an appellant proves he has suffered actual prejudice as a result of improper post-trial delay by the Government. In Clevidence the remedy was dismissal of the charges. However, the Court stated they would hesitate to dismiss if the offenses had been of a more serious nature. 14 M.J. at 19. We agree with appellant that he was prejudiced by the post-trial delay and now must determine the seriousness of the offense of which. appellant was convicted and determine an appropriate remedy under all the circumstances.

This Court has previously held that the offense of distributing a controlled substance such as marijuana is a serious offense. United States v. Vonkageler, 18 M.J. 642 (N.M.C.M.R. 1984). This is especially true when the distribution is made by a first class petty officer, as it was here.4 We find that the distribution of marijuana offense is a “serious offense” under the *1097facts of this case. Accordingly, the relief requested by appellant — dismissal—is inappropriate. However, to provide effective relief for the inordinately long and prejudicial post-trial delay, we find that the appropriate remedy under the circumstances is disapproval of the bad-conduct discharge. Article 66(c), UCMJ, 10 U.S.C. § 866(c). We will not compound the delay by returning the record for proper service of the staff judge advocate’s recommendation on a defense counsel and a new convening authority’s action. No further remedial action by the reviewing authorities below is likely or appropriate.

Therefore, the findings of guilty and only so much of the sentence as provides for confinement of 100 days, forfeiture of $200.00 pay per month for 4 months, and reduction to E-l are affirmed.