## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before BURTON, HAGLER, and FLEMING Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant First Class COREY D. PORTER United States Army, Appellant

ARMY 20160253

Headquarters, Fort Drum S. Charles Neill, Military Judge

Lieutenant Colonel John J. Merriam, Sta ff Judge Advocate

For Appellant: Major Brendan R. C ronin, JA; Lieutenant Colonel John N. Maher, JA (on brief); Major Todd W. Simps on, JA; Lieuten ant Colonel Jo hn N. Maher, JA (on reply brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major V irginia H. Tinsley, JA; Captain Natanyah G anz, JA (on brief).

30 January 2019

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

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

FLEMING, Judge:

In this case, we hold appellant was not prejudic ed by any unrea sonable posttrial delay.

A panel with enlisted representation sitti ng as a general court -martial convicted appellant, contrary to his pleas, of two specificatio ns of assault consummated by a battery and one specification of obstructing j ustice in violation of Articles 128 and 134, Uniform C ode of Military Justice [UCMJ], 10 U.S.C. §§ 928, 934 (2012). The panel sentenced a ppellant to a bad-conduct dis charge, twelve months of confinement, forfeitur e of all pay and allowances, an d reductio n to the grade of E-1. At ac tion, the conven ing authority approved the adjudged sentence, credited appellant with thirty-nine days of confinement credit, and terminated a previously appro ved deferral of both appe llant’s reduction in r ank and forfeitures in the amount of $3,85 0 per month. Appellant ’s case is now before us under Article 66, UMCJ. Appellant asserts eight errors; one meri ts discussion, n one merit relief.PORTER—ARMY 20160253

2 BACKGROUND

Appellant was convic ted of assaulting his e x-wife, COP, by plac ing his hands

around her neck and unl awfully grabbi ng her face. After finali zing their divorce earlier in the day, appellant a nd COP spent the evening at the same house. While there, an argumen t and physical altercati on ensued between them resulting in COP calling civilian law enforcement and appellant’s arrest. Durin g appellant’s subsequent thirty-nine days of civilian pretrial confinement, h e made numerous telephone calls to a variet y of people, including COP. These t elephone calls formed the basis for appellant’s conv iction of obstruction of justice for offering COP financial support if sh e would request dism issal of pending civ ilian charges. Ultimately, a civilian t rial did not occur. A court-martial di d.

Appellant now asserts unreasonabl e post-trial delay occurred in his case. This allegation necessitates outlining the following pertinent dates . Appellant’s courtmartial adjourned o n 13 April 2016. On 2 7 April 2016, the conv ening authority approved appellant’s request to defer his rank reduction and au tomatic and adjudged

forfeitures in the amount of $3,850 per month. On 6 October 20 16, 21 October 2016, and 29 December 20 16, appellant dema nded speedy p ost-tria l processing. On 25 December 2016, appellant was r eleased from confinement. App ellant’s trial

defense counsel received the reco rd of trial (ROT) for review o n 13 February 2017, the military judge authenticated the ROT on 15 March 2017, and appellant received the ROT on 4 April 2017. The con vening authority took action o n appellant’s case on 18 May 2017.

The government acknowle dged, in the Addendum to the Staff Judge Advocate’s Recommendation [Adden dum], dated 18 M ay 2017, receip t of appellant’s three re quests for speedy post- trial proc essing. T he government’s only

stated reason for the delay was, “failure of the respo nsible co urt-reporter to accurately transcribe the recor d in a timely ma nner.” In a pos t-trial memorandum for record, the government calcul ated that post-trial processin g took 401 days (13 days attributable to d efense and 388 d ays attributable to the g overnment). The government stated an “extraordin ary delay” (304 d ays) occurred in completing the

verbatim trans cription.

In reviewing this alleged “extraordinary delay” in processing a n 888-page transcript, an approximate fou r-and-a-half month span exists fr om adjournment until an investigation into the delay determined “the senior court re porter was derelict in her duties as a court reporter” and “[s]he was relieved of her position.” After her relief, the government asserts th e following resource constrain ts: (1) having only “two court-reporters assigned of four authorized; ” and (2) “the acting senior-court reporter (civilian) in herited the transcri ption of [appellant’s ] record and was charged with completing this task in add ition to transcri bing her other records, any additional records that the previ ous senior cour t reporter had touched, an d conducting qualityPORTER—ARMY 20160253

3 assurance checks on the junior c ourt-reporter’s records.” Appr oximately five-and-ahalf months elapsed between the s enior court reporter’s relief and the provision of

the ROT to defe nse counsel fo r review.

LAW AND ANALYSIS

Dilatory Post-Trial Processing

Appellant alleges the approximate 38 8 days it took the governm ent to complete post-trial processing of his case warrants relief eith er as a due process violation or under Article 66( c), UCMJ. As to a due process vi olation, we apply a four-factor balancing te st to determine whether such presumptiv ely unreasonable delay is, in fact, unreasonable in a given case. United States v. Moreno , 63 M.J. 129, 135 (C.A.A.F. 2006) (citing Barker v. Wingo , 407 U.S. 514, 53 0, (1972)). The factors are: “(1) the length of t he delay; (2) the reasons for the delay; (3) appellant’s assertion of the right to timely review and appeal; and (4) pre judice.” Id . (further citations omitted). There are three relevant factors to determ ine prejudice: (1) preventing oppress ive incarceration; (2) minimizing appellant’s anxiety and concern while awaiting appeal outcome; and ( 3) limiting th e possibility of impairing appellant’s groun ds for appeal. Id. at 138-39.

In this case, the l ength of the delay is substantial—268 days longer than the 120-day presumption of unreason able delay. Secon d, the governm ent had an opportunity to provide good reasons for this dela y. It did not . Notwithstanding the investigation and rem oval of an apparently r ogue senio r court r eporter and assertions of decreased court reporting sta ff, it took the government 304 days (approximately 190 days of which occurred after the senior court reporter’s re lief) to prepare an 888-page transcript. Fu rther, this delay occurred in the face of appellant’s three demands for speedy post-trial pr ocessing and his r elease from c onfinement. We write to express our concern with all these factors.

While the first three prongs of Moreno favor appellant, we are unper suaded any prejudice exists, at bar, to warrant relief. Appellant pro ffers two gro unds to find prejudice: (1) he di d not receive “any mea ningful opportunity to request that the convening authority disapprove portions of his confinement,” 1 and (2) his failure to receive a Department of Defense F orm 214 placed hi m in financia l strain.

1 The date of appellant’s offens es predate the amendments to Art icle 60, UCMJ that

limited the conve ning authority’s power t o disapprove or commut e certain sentences. Compare UCMJ art. 60 (20 12 & Supp . I 2014) with National Defense Authorization Act for Fiscal Year 2014, Pub . L. No. 113-66 , § 1702, 127 Stat. 672, 955-56 (2013).PORTER—ARMY 20160253

4 We pause now to note a ppellant’s first two demands for speedy t rial (6

October 2016 and 21 O ctober 2016) are mere blanket assertions o f delay devoid of any explanation as to the prejud ice to appellant or request for specific relief. Only appellant’s third dema nd for speedy trial (four days after his release from confinement) asserted appellant w as prejudiced be cause the conv ening authority lacked a “meaningful opportunity” to disapprove appellant’s sen tenced confinement. While appellant submitted and received a deferral of both autom atic and adjudged forfeitures and reduction in rank from the convening authority, it appears appellant

did not avail himself of a “mean ingful opportunit y” to request that the convening authority also defer his confin ement. Although th e convening a uthority possessed the authority to disapprove appellant’s confinement, absent any documentation or affidavit to the contrary, it is mere speculation such action w ould have occurred.

Any assertion of financial strai n because of post- trial delay i s gravely

undermined because the deferral of automat ic and adjudged forfe itures and rank

reduction resulte d in appellant’s recei pt of $3,850 per month f or several months. Appellant financially benefited f rom the delay because the conv ening authority

deferred forfeitures and ra nk reduction until action. See United Stat es v. Arias , 72 M.J. 501, 504, 50 6-07 (Army Ct. Crim. A pp. 2013) (fi nding no pr ejudice when “every day of post-tri al processing prior t o action resulted in additional money paid to appellant”).

Under these circumstances, we fi nd no prejudice exists as to a ny due process

violation and decline to exercise our Artic le 66, UCMJ, authori ty to approve a lesser

sentence. After a th orough review of the r ecord and considerat ion of the post-trial delay, we find the sen tence approved b y the conven ing authority is appropriate.

CONCLUSION

The findings of gu ilty and the sentence are AFFIRMED.

Senior Judge BURTON and Judge HAGLER concur.

FOR THE COURT:

JOHN P. TAITT JOHN P. TAITT Acting Clerk of Court FOR THE COURT: