## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CAMPANELLA, and CELTNIEKS Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant ROBERT W. CUTSHAW United States Army, Appellant

ARMY 20130873

Headquarters, Third Army, United States Army Central

Edye Moran and Kirsten V. Br unson, Military Judges Lieutenant Colonel Martin N. White, Ac ting Staff Judge Ad vocate (pretrial) Colonel Brendan M. Donahoe, St aff Judge Advocat e (post-trial)

For Appellant: Colone l Kevin Boyle, JA; Amy E. Ni eman, JA; Captain Patrick J. Scudieri, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain Timothy C. Donahue, JA (on brief).

28 March 2016

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

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Per Curiam:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of two specifications of violating a lawful general regulation and three specifi cations of maltreatment of subordinates in violation of Articles 92 and 93, Unifor m Code of Military Justice, 10 U.S.C. §§ 892, 893 (2012) [hereinafter UCMJ]. The militar y judge sentenced appellant to a badconduct discharge and reduction to the grade of E-1. The convening authority approved the findings an d sentence as adjudged. *

* Pursuant to agreement between the partie s in the stipulation of fact (Prosecution Exhibit 1), the military judge granted seven days confinement credit for violations of Article 13, UCMJ. The confin ement credit was rendered moot because appellant was

not sentenced to confinement.CUTSHAW—ARMY 20130873

2 This case is before us for review under Article 66, UCMJ. Appe llant raises five assignments of error to this court, on e of which warrant s discussion but no

relief.

LAW AND DISCUSSION

The convening authority took action 3 54 days after the se ntence was adjudged,

and the record of trial did not arrive at this court until 428 days had elapsed. The

record in this case co nsists of two volumes and the trial transcript is 205 pages. The government concedes it is attr ibutable for at leas t 365 days of this total period. In a

memorandum dated five weeks after actio n was taken, th e staff judge advocate explained the delay was due to the removal from duties of an assigned court reporter and the limited availability of the convening authority. There was no explanation in the record, however, for the seventy-four da ys between action and the delivery of the

record of trial to this court.

While we find no justifia ble reason for the presumptively unre asonable delay, appellant is not entitled to re lief in this case . Appellant conced es he suffered no prejudice and we, li kewise, find no prejudice as a result of the de lay. Absent any due process violation in th e post-trial processing of appellant’s case, we must still review the appropriateness of the sentence in light of the unjustified dela y. UCMJ art. 66(c); United States v. Tardif , 57 M.J. 219, 224 (C.A.A.F. 2 002) (“[Pursuant to Article 66(c), UCMJ, service courts ar e] required to determine what findings and sentence ‘should be approved,’ based on all the fact s and circumstances refl ected in the record, including the unexp lained and unreasonable post-trial delay.”). See generally United States v. Toohey , 63 M.J. 353, 362 -63 (C.A.A.F. 2006); United States 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).

After reviewing the facts and circumstance s of this case, we find the sentence as approved by the co nvening authority to be appropriate. Consequently, despite the government’s failure to meet its obligation to provide timely post-trial processing of the record, relief is not warranted here.

CONCLUSION

Upon consideration of the entire record, we find the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, the fi ndings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

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