## UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

TOZZI

, CAMPANELLA, and CELTNIEKS Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class CHRISTOPHER S. WILLHAUS

United States Army, Appellant

ARMY 201 3 0146

Headquarters, 1 st Cavalry Division Gregory A. Gross and James L. Varley, Military Judge s Colonel R. Tideman Penland , Jr. , Staff Judge Advocate

For Appellant: Colonel Kevin Boyle

, JA; Major Amy E. Nieman , JA (on brief)

.

For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie, III, JA; Major John K. Choike, JA; Captain Jaclyn E. Shea , JA (on brief).

11 May 20 1 5

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

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

CAMPANELLA, Judge :

A military judge sitting as a general court

- martial convicted appellant,
pursuant to his pleas, of violating a lawful genera l order, fleeing apprehension,

reckless operation of a vehicle , and wrongfully communicating a threat, in

violation of Article s 92, 95, 111, and 134, Uniform Co de of Military Justice, 10

U.S.C. § § 892, 895, 9 11, 934 (20 12 ) [hereinafter UCMJ]

. The military judge

sentenced appellant to a bad

- conduct discharge and confinement for eight

months

. Pursuant to a pretrial agreement convening authority approved only so

much of the sentence as provided for a bad

- conduct discharge and confinement

for seven months. 1

This case is before for review us pursuant to Article 66, UCMJ.

A ppellant raises one a ssign ment of error which warrants comment and relief.

1 Prior to action, the convening authority granted appellant’s request for deferral of

automatic forfeitures until action.WILLHAUS

— ARMY 20130146

2

A ppellant request s appropriate relief to remedy the dilatory post

- trial processing

in his case. We agree that relief is appropriate

.

LAW AND DISCUSSION

Subtracting delay attributable to the defense in this case, t he convening authority took action over a year past the date sentence was adjudged. The

record in this case consists of two volume s and the trial transcript is 250 pages

. Although we find no due process violation in the post

- trial processing of appellant’s case, we must still review the a ppropriateness of the sentence in light of the unjustified dilatory post

- trial processing. UCMJ art. 66(c); United States v. Tardif

, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ, service courts are] required to determine what findin gs and sentence ‘should be approved,’ based on all the facts and circumstances reflected in the record, including the unexplained and unreasonable post

- trial delay.”) ; s ee generally United States v. Toohey , 63 M.J. 353, 362

- 63 (C.A.A.F. 2006); United

State s v. Ney , 68 M.J. 613, 617 (Army Ct. Crim. App. 2010); United States v.
Collazo , 53 M.J. 721, 727 (Army Ct. Crim. App. 2000)

.

It took 2 6 1 days to transcrib e the record in this case

. Appellant raised

the issue of dilatory post

- trial processing in his Rule for Courts

- Martial 110 5

- 1106 matters. The staff judge advocate acknowledged but did not explain the delay to the convening authority. While the government has since explained the reasons for delay , d ocumented reasons for delay should be made part of

the record and available for review at all relevant times, including convening authority action. See United States v. Moreno , 63 M.J. 129, 143 (C.A.A.F. 2006) (“We expect convening authorities, reviewing authorities and the Courts of Criminal Appeals to docum ent reasons for delay and to exercise the institutional vigilance that was absent in Moreno's case.”); s ee also United States v. Canchalo, 64 M.J. 245 (C.A.A.F. 2007); United States v. Arias, 72 M.J. 501 (Army Ct. Crim. App. 2013); United States v. Bauerba ch , 55 M.J.

501 (Army Ct. Crim. App. 2001).

We find that the reasons offered by the government are unreasonable under the totality of circumstances.

CONCLUSION

Upon consideration of the entire record, t he finding s of guilty are AFFIRMED. G iven the dilatory post

- trial processing, however, w e affirm only so much of the sentence as extends to a bad

- conduct discharge, and

confinement for six months

. All rights, privileges, and property, of which appellant has been deprived by virtue of this de cision setting aside portions

of the findings and s entence are ordered restored.WILLHAUS

— ARMY 20130146

3

Senior Judge TOZZI and Judge CELTNIEKS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: