## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, HERRING, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class JOSE M. MELENDEZ United States Army, Appellant

ARMY 20140314

Headquarters, 1st Ca valry Division Rebecca Connally, Military Judge
Colonel R. Tideman Penl and, Jr., Staff Judge Advocate (pretrial)
Lieutenant Colonel Michael D. Jones, Acting Staff J udge Advocate (post-trial)

For Appellant: Lieutenant Colonel Ch arles D. Lozano, JA; Major Aaron R. Inkenbradt, JA; Captain Amanda R. McNeil, JA (on brief).

For Appellee: Major A. G. Courie, III, JA; Major Steven J. Collins, JA ; Captain Tara E. O’Brien, JA (on brief).

30 October 2014

--------------------------------- SUMMARY DISPOSITION

---------------------------------

Per Curiam:

A military judge sitting as a special court-martial convicted appellant, consistent with his pleas, of two specif ications of attemptin g to sell military property of a value more than $500, one spec ification of cons piracy to commit larceny of military property of a value mo re than $500, one speci fication of larceny military property of a value more than $50 0, and one specification of unlawful entry, in violation of Articles 80, 81, 121, and 1 34 Uniform Code of M ilitary Justice, 10 U.S.C. §§ 880, 881, 912, 934 (2012) [hereinafter UCMJ] . In accordan ce with the pretrial agreement, the convening authorit y approved the findi ngs and the adjudged sentence of a bad-conduct discharge and confinement for three months.

This case is before us pursuant to Article 66, UC MJ. Appellant raises one assignment of error, which me rits discussion and relief.MELENDEZ—ARMY 20140314

2 BACKGROUND

Appellant’s court-martial concluded on 23 April 2014. Defense counsel
received the record of trial for review on 26 August 2014 and comple ted review the next day. The military j udge authenticated the record of trial on 23 October 2014 after returning the record of trial to the cour t reporter to corr ect numerous errors. The staff judge advocate signed his reco mmendation (SJAR) on 29 October 2014 and served it in conjunction with the authentica ted record of trial on appellant’s defense
counsel on 6 December 2014. The government received po st-trial matters on behalf of the appellant nine days later. The staff judge advocate si gned the ad dendum on
22 December 2014 and th e convening authority took action the same day. This court
received the record of trial on 20 February 2015.

LAW AND DISCUSSION

In United States v. Moreno , our superior court established timeliness
standards for various stages of the post-tr ial and appellate proc ess. 63 M.J. 129, 142-43 (C.A.A.F. 2006). The Moreno standard ap plicable in this case is that a convening authority should take action with in 120 days after the trial is completed.
Id . at 142. Additionall y, the record of tr ial should be dockete d with this court within thirty days of the convening authority’s action.  Id. Failure to satisfy any of these standards creates a “p resumption of unreasonable de lay,” prompting this court to apply and balance the four factors set out in Barker v. Wingo , 407 U.S. 514, 530 (1972), in order to determin e whether appellant’s due proc ess rights were violated by the delays. See Moreno , 63 M.J. at 136.

Taking over 300 days to process appe llant’s case from tr ial completion to docketing at this court is presumptively un reasonable and violates both the standard
for timeliness from trial to init ial action and initial action to docketing at this court.
Id. at 142. In the face of this lengthy delay, our next step is to apply and balance the
four factors set out in Barker , in order to determine whether appellant’s due process rights were violated. Id. at 136.

The post-trial processing tim e in appellant’s case is 2 43 days from sentence to action. The government served defense counsel with the eighty-sev en page record of
trial for review 1 25 days after the conclusi on of appellant’s tria l. The lack of any delay on the part of the defense rests the dila tory post-trial processing at the feet of the government. See Rule for Courts-Martial 1106(f)(5) and United States v. Garman, 59 M.J. 677 (Army Ct. Crim. App. 2003)

. Another 61 days passed from action to receipt by this court. The delay from tria l to initial actio n is more than
double both the time where this court presumes unreas onable delay in post-trial

 One other standard—t imeliness of appell ate review before this court—is not relevant in appellant’s case. Moreno , 63 M.J. at 142-43.MELENDEZ—ARMY 20140314

3 processing between sentence and action and what is exp ected for receipt of this
record of trial by this court. See Moreno , 63 M.J. at 142 (recognizing a presumption
of unreasonable dela y in cases where acti on is not take n within 120 days of the completion of trial and where th e record of trial is not docketed at this court within 30 days of action). This facially unreasonab le delay triggers our review of the remaining Moreno factors: reasons for th e delay; timely assert ion of the right to speedy post-trial review; and prejudice. Id. at 135-36.

The explanation by the senior installa tion court reporter outlines several
reasons for the de lay to include: heavy caseload, transcription back-ups, the military judge’s corrections to the re cord, and operational deploym ents. Our superior court has held that “personnel and administrative issues . . . are not legitimate reasons justifying otherwise unreasonable post-trial delay.” United States v. Arriaga , 70 M.J. 51, 57 (C.A.A.F. 2011). Operational deployments under certain circumstances can justify a delay. United States v. Bauerbach , 55 M.J. 501, 507 (Army Ct. Crim. App. 2001). There is no spec ific explanation provided by the government for the delay in this court receiving the case. Th e reasons for the dela y weigh in favor of appellant.

The third Moreno factor weighs in fa vor of the appellant; he asserted his right to speedy post-trial proc essing multiple times. Turning to the fourth Moreno factor, appellant fails to demonstrate prejudice. Although we find no due process violation
after consideration of the Moreno factors, we review the appropriateness of the sentence in light of the dilatory post- trial processing. UC MJ art. 66(c). See
Moreno , 63 M.J. at 138-42; United States v. Toohey , 63 M.J. 353, 362 (C.A.A.F. 2006); United States v. Tardif , 57 M.J. 219, 224 (C.A .A.F. 2002). After consideration of the entire record, we conc lude appellant’s case warrants relief in the form of a thirty day reduction in confinement und er Article 66(c), UCMJ, for the unreasonable post-trial delay. See Tardif , 57 M.J. at 224.

CONCLUSION

The findings of guilty are AFFIRMED. After consid ering the entire record, we AFFIRM only so much of the sentence as provides for a ba d-conduct discharge
and confinement for two mont hs. All rights, privileges, and pr operty, of which appellant has been deprived by virtue of th at portion of the sentence set aside by this
decision are orde red restored. See UCMJ arts. 58b(c) and 75(a).

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: