## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, HERRING, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Specialist JOSE L. NATAREN United States Army, Appellant

ARMY 20130413

Headquarters, United States Army Alaska Timothy Grammel, Milita ry Judge (arraignment) Stefan R. Wolfe, M ilitary Judge (trial) Colonel Tyler J. Harder, Sta ff Judge Advocate (pretrial) Colonel Erik L. Christiansen, St aff Judge Advocate (post-trial)

For Appellant: Captain Amanda R. McNe il Williams, JA; Mr. Frank J. Spinner, Esquire (on brief); Ca ptain Joshua Grubaugh, JA; Mr. Fr ank J. Spinner, Esquire (on reply brief).

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Captain Christopher A. Clausen, JA; Captain Samuel E. Landes, JA (on brief)

14 September 2016

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SUMMARY DISPOSITION

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PENLAND, Judge:

A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of sexual assault a nd adultery in violation of Articles 120 and 134, Unifor m Code of Military Justic e, 10 U.S.C. §§ 920, 934 (2012) [hereinafter UCMJ]. The panel sentenced appellant to a dishonorable discharge and confinement for twelve years. Following the recommendation of the staff judge advocate to redu ce the sentence by one month to account fo r delays in post-trial processing, th e convening authority approved on ly so much of the sentence extending to a dishon orable discharge and confinement for eleven years and eleven

months.NATAREN—ARMY 20130413

2 We review this case under Article 66(c), UCMJ. Appellant raises two assignments of error, one of which, dilatory post-trial pr ocessing, merits discussion

and relief.

BACKGROUND

Appellant’s trial conclude d on 30 April 2013. Appe llant did not receive the authenticated record of trial, consisti ng of 535 pages of transcript, until 30 September 2014, 518 days afte r the trial. During the interim, appellant’s trial defense counsel filed four requ ests for speedy po st-trial processing , the first on 13 May 2013 and the last on 19 May 2014. Appellant filed his Rule for Court-Martial [hereinafter R.C.M.] 1105 ma tters on 15 October 2014. The staff judge advocate (SJA) completed the addendum to his post -trial recommendation and the convening authority took action on 15 January 2015, 92 days after receiving a ppellant’s R.C.M.

1105 submission. In total, 620 days of post-trial delay at tributable to the government elapse d from trial un til action.

On appeal, appellant seeks re lief for an excessive post -trial delay. Appellant does not assert any particular harm associated with this delay. A memorandum from the convening authority’s chie f of military justice indicat es multiple systemic causes within the SJA’s office, to include a shor tage of court report ers and changes in office leadership, contributed to the delay.

LAW AND DISCUSSION

We review de novo appellan t’s claim that he has been denied his due process right to speedy post -trial review. United States v. Moreno , 63 M.J. 129, 135 (C.A.A.F. 2006). Our superior court has a dopted a four-factor ba lancing test from Barker v. Wingo , 407 U.S. 514, 530 (1972), to determine whether a due process

violation has occurred: “(1) the length of the delay; (2) the re asons for the delay; (3) the appellant’s assertion of the righ t to timely review and appeal; and (4) prejudice.” Id. (citations omitted). “O nce this due process anal ysis is triggered by a facially unreasonable delay, the four factors are bala nced, with no single factor being required to find that post-trial de lay constitutes a due process violation.” Id. at 136 (citing Barker , 407 U.S. at 533). In assessing these factors, we find the delay in this case deprived appellant of due process.

First, under the circumstances of this case, the length of the delay—620 days—is facially unreasona ble under any standard. Moreno established a presumption of unreas onable delay when th e convening authorit y takes action more than 120 days afte r the trial ends. 63 M.J. at 135

. The 535 page record in this case is not particularly comple x or unusual. The 92-day delay between receipt of appellant’s R.C.M. 1105 matter s and the convening authority’s action is particularlyNATAREN—ARMY 20130413

3 troubling when considering 528 days had already lapsed on the post-trial clock. This factor weighs heavily in favor of the appellant.

Second, the government’s explanation for the delay boils down to a lack of

court reporter support and insufficient oversight due to leadership transitions in the

SJA’s office. “To allow caseloads to b ecome a factor in determining whether appellate delay is ex cessive would allow administrative factors to tr ump the Article 66 and due process right s of appellants.” U.S. v. Arriaga , 70 M.J. 51, 57 (C.A.A.F. 2011) (citing Moreno , 63 M.J. at 137) (a dditional citations and quotations omitted). The government marshalled suff icient resources and person nel to bring appellant to trial in a timely fashion. The government’s obliga tion to provide sufficient resources and pers onnel to continue the timely proces sing of this ca se did not end with the bang of the j udge’s gavel upon ad journment of the trial. This factor weighs in appellant’s favor.

Third, appellant asserted his right to speedy trial four times before the transcript was finally completed, authen ticated, and served on the appellant. Appellant’s due process fl ags were not big enough to draw th e government’s attention and action, for his first three requests apparently drew no response. He finally received an authenti cated record of tr ial over four mont hs after his final request. The government’s 92 -day delay between receipt of appellan t’s R.C.M. 1105

matters and action unde rscores the government’s disreg ard of appellant’s asserted right to speedy post-t rial processing. This factor weighs in appellant’s favor.

Fourth, appellant asserts no prejudice and we find none ; however, he has been denied due process. We so conclude after “balancing the other three [ Barker ] factors, [and finding] the de lay is so egregious that to lerating it would adversely affect the public’s perception of the fairness an d integrity of th e military justice system.” United States v. Toohey , 63 M.J. 353, 362 (C.A.A.F. 2006).

“Where we find constitutional error, we grant relief unless [we are] convinced beyond a reasonable doubt that the constitution al error is harmless.” Id. at 363. Considering the totality of the circumstances of this case, we cannot state with confidence that the post-tri al delay was harmless. In Moreno , our superior court provided a non-exclusive range of available remedies, to address an excessive posttrial:

(a) day-for-day reduction in confinement or confinement credit; (b) reduction of forf eitures; (c) set aside of portions of an approved se ntence including punitive discharges; (d) set aside of th e entire sentence, leaving a sentence of no punishment ; (e) a limitation upon the sentence that may be approved by a convening authorityNATAREN—ARMY 20130413

4 following a rehearing; and (f) dismissal of th e charges and specifications with or without prejudice.

Id. at 143. Given this wide range of options, we sha ll reassess the sentence, affirming only so much of th e sentence as provides for a dishonorable discharge and confinement for eleven year s and eight months . This reduction of appellant’s approved sentence to confinement is an appropriate and meanin gful remedy for the government’s post-trial delay.

CONCLUSION

The findings of guilty are AFFIRMED. Reassessing the sent ence, we affirm only so much of the sent ence as provides for a di shonorable di scharge and confinement for eleven years and eight months. All rights , privileges, and property, of which appellant has been deprived by vi rtue of that porti on of the sentence set aside by this decision are ordered restored.

Senior Judge CAMPANELLA an d Judge HERRING concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: