## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before YOB, KRAUSS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 CHRISTOPHER T. BURKS United States Army, Appellant

ARMY 20111177

Headquarters, III Co rps and Fort Hood James Varley an d Jeffrey Hart, Military Judges Lieutenant Colonel Craig E. Merutka, Ac ting Staff Judge Advo cate (pretrial and addendum) Colonel Stuart W. Risch, Staff Judge Advocate (recommendation)

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Ca ptain J. Fred Ingram, JA (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Captain Chad M. Fisher, JA (on brief).

28 January 2013

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

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KRAUSS, Judge:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of one specification of absence without leave, one specification of wrongful use of marijuana and one specifi cation of wrongful use of cocaine, in violation of Arti cles 86 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 912a (2006) [hereinafter UCMJ]. Th e military judge sentenced appellant to a bad-conduct discharge, co nfinement for ten mont hs, forfeiture of $978.00 per month fo r ten months, and reduction to the grade of E-1. In accordance with the terms of a pretri al agreement, the conveni ng authority approved eight

months confinement and the remai nder of the adju dged sentence.

This case is before the court for review under Article 66, UC MJ. Appellant asserts excessive post-trial delay warran ts relief and personal ly raises mattersBURKS

— ARMY 20111177

2 pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). We have

considered the record of tr ial, appellant’s assignment of error, th e government’s answer, and the matters raised pursuant to Grostefon . Though we do not find any actual prejudice to appellan t, we agree with appellan t that the unexplained and excessive post-trial delay in the process of this case warrants relief.

Here, the government brough t appellant to trial, at a special court-martial, eight and a half months after his return from an unau thorized absence of more than thirty-five months. He pled guilty to thre e of the four specifi cations alleged. The government did not try to prove the four th specification referred. The trial transcript is eighty-two pa ges. Time betwee n sentence and actio n in this case was 232 days. Neither the conveni ng authority nor the Staff Judge Advocate included any explanation for the time required to complete the post -trial processing in this case and nothing in the reco rd establishes any delay on th e part of appellant. The length of this processing time without explanation, let alone justification, warrants relief under the pa rticular circumstances of th is case. UCMJ art. 66(c); see United

States v. Moreno , 63 M.J. 129 (C.A.A.F . 2006) (creating a 120-day presumption of unreasonable delay); s ee generally United States v. Toohey , 63 M.J. 353, 362–63 (C.A.A.F. 2006); Moreno , 63 M.J. at 143; United States v. Tardif , 57 M.J. 219, 224 (C.A.A.F. 2002); United States v. Ney , 68 M.J. 613, 616–17 (Army Ct. Crim. App. 2010). Reviewing th e entire record of trial, and in light of the gov ernment’s failure to provide reasons for excessive post-trial pr ocessing time, along with the particular

circumstances of this case , we find a reducti on of one month in the sentence appropriate.

Therefore, on consideration of the enti re record, the assigned error, and matters raised pursuant to United States v. Grostefon , 12 M.J. at 431 , we find the findings of guilty co rrect in law and fact, and they ar e affirmed. However, in light

of our reasons ab ove, we find th at, in relation to appellan t’s approved sentence to eight months confinement, only seven months should be approved. Therefore, the court approves only so much of the sentence as prov ides for a bad-conduct discharge, confinement for seven months, forfeiture of $978.00 per month for ten months, and reduction to the grade of E-1. All rights, privileges, and property, of which appellant has been deprived by virtue of that portion of hi s sentence set aside by this decision, are ordered 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: