## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before JOHNSON, KRAUSS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant WILLIAM L. RUBINO

United States Army, Appellant

ARMY 20100675

Headquarters, III Co rps and Fort Hood James L. Varley, Military Judge Colonel Mark H. Sydenham , Staff Judge Advo cate (pretrial & recommendation) Colonel Stuart W. Risch, St aff Judge Advoca te (addendum)

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA; Captain James S. Trieschmann, Jr., JA (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Major Julie A. Glascott, JA; Captain Steve T. Nam, JA (on brief).

22 June 2012

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

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

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of false official statement, aggravated sexual assault of a child, and abusive sexual contact with a ch ild, in violation of Articles 107 and 120, Uniform Code of Military Ju stice, 10 U.S.C. §§ 907, 920 (2006 & Supp . IV 2010) [hereinafter UCMJ]. The military judge sentenced ap pellant to a bad-conduct discharge, confinement for fi fty-one months, and reduction to the grade of E-1. The convening authority approved the sentence as adjudged.

This case is before the court for review under Article 66, UCMJ. We have

considered the record of tria l, appellant’s assignment of error, and the government’s answer. Though we do not find any actual prejudice to the appellant, we agree with appellant that the unexplaine d and excessive post-trial dela y in the process of this

case warrants relief.RUBINO—ARMY 20100675

2 Here, appellant waived his right to an Article 32, UCMJ, investigation and pled guilty to al l charges and specif ications resulting in a re cord of trial transcript eighty-six pages in le ngth. Time between se ntence and action in this case was 289 days. Neither convening authority nor staf f judge advocate offered any explanation for the post-trial delay, either initially or in response to appe llant’s complaint of excessive post-trial delay contained in his Rule for Courts-Marti al 1105 submission. Even if we permit the government’s calcu lation, attributing only 218 days of unexplained delay to the convening authority, the length of delay without explanation, let alone jus tification, warrants relief under the particular

circumstances of this case . Article 66 (c), UCMJ. See United States v. Moreno , 63 M.J. 129 (C.A.A.F. 2006) (c reating a 120-day presumptio n of unreasonable delay). See 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 the entire record of trial, and in light of the government’s failure to provide reasons for excessive post trial delay, along with the particular ci rcumstances of this case,

we find a reduction of two months in the sent ence to confinem ent appropriate.

Therefore, on consideration of the entire record and the a ssigned error, the findings of guilty are affirm ed. However, in light of our reasons above, we find that, in relation to appellant’s sentence to fifty-one months conf inement, only fortynine months should be approved. Therefor e, the court approves only so much of the sentence as provides for a bad-conduct discharge, co nfinement for forty-nine 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) an d 75(a).

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: