## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, HAIGHT, and WEIS 1

Appellate Military Judges

UNITED STATES, Appellee

v. Specialist JOHNAT HAN D. YELLETS United States Army, Appellant

ARMY 20121107

Headquarters, III Co rps and Fort Hood Gregory A. Gross, Military Judge Colonel Stuart W. Risch, Sta ff Judge Advocate (pretrial) Colonel Richard W. Rousseau, St aff Judge Advocat e (post-trial)

For Appellant: Colone l Kevin Boyle, JA; Major Patrick Gordon, JA; Captain Brian D. Andes, JA (on brief).

For Appellee: Major A.G. Courie III, JA ; Major Steven J. Co llins, JA (on brief).

22x July 2015

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

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

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, consistent with his pleas, of rape of a ch ild, aggravated sexual abuse of a child, aggravated sexual contact wi th a child, and one specification of wr ongful possession of child pornography, in violation of Articles 120 and 134, Uniform Code of Military Justice [her einafter UCMJ], 10 U.S.C. §§ 920 and 934 (20 06 & Supp. V; 2012). The military judge sentenced appellant to a dishonorable discharge, confinement for twenty-five years, forf eiture of all pay and allowances, and reduction to the grade of E- 1. The convening authorit y, pursuant to a pretrial agreement, approved only so much of the sentence to confinement as provided for twelve years but otherwise appr oved the adjudged sentence.

1 Judge Weis took final action on this case while on active duty.YELLETS—ARMY 20121107

2 This case is before us pursuant to Article 66, UC MJ. Appellant raises one assignment of error, which me rits discussion and relief. 2

BACKGROUND

Appellant’s trial concluded on 5 December 2012. On 28 March 2013, appellant submitted a request for speedy po st-trial processing. The 55-page record of trial was transcribed and provided to tr ial defense counsel for review on 25 June 2013, 202 days after trial. On 18 July 2013, the military judge ordered a post-trial session, which was conducted on 4 Septembe r 2013. The 6-page record of the posttrial session was transcribed and provided to defense co unsel and the military judge on 5 September 2013. The m ilitary judge authenticated the record on 6 September 2013. The staff judge advoca te (SJA) signed his post-t rial recommendation (SJAR)

over four months late r on 9 January 2014.

On 7 February 2014, ap pellant’s defense counse l submitted post-trial clemency matters in which she, inter alia , alleged the government had exceeded

timeliness standards in the post-trial proces sing of appellant’s ca se prescribed by our superior court in United States v. Moreno , 63 M.J. 129 (C.A.A.F . 2006). In his addendum to the SJAR, dated 25 February 2014, th e SJA identified the issue as one that may represent an allega tion of legal erro r but disagreed that legal error had

occurred and recommended th e convening authority take no corrective action. The convening authority took action on 25 February 2014, 441 da ys after the trial. On 27 March 2014, 30 days after action, the record was received at this court.

DISCUSSION

In his lone assigned er ror, appellant alleges:

THE DILATORY POST-TRIAL PROCESSING OF

APPELLANT'S CASE WARRANTS RELIEF BECAUSE

IT TOOK 441 DAYS FROM SENTENCE TO ACTION IN

A CASE WHERE THE RECORD OF TRIAL WAS ONLY

SIXTY-ONE PAGES.

In Moreno , our superior court established timeliness standards for various stages of the post-tria l and appellate process. 63 M. J. at 136-43. Specifically,

initial action of the convening authority should be take n no later than 120 days after completion of the trial, and the record of trial should be docketed with this court

2 Appellant also personally rais es three issues pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982 ), none of which merits discussion or relief.YELLETS—ARMY 20121107

3 within 30 days of the conve ning authority’s action. Id at 142-43

. 3 Failure to satisfy any of these standards creates a “presumpti on of unreasonable de lay,” prompting this court to apply and balance the four fa ctors set out in Barker v. Wingo , 407 U.S. 514, 530 (1972), in order to dete rmine whether appe llant’s due proce ss rights were violated by the dela ys in processing. See Moreno, 63 M.J. at 135-36.

Here, taking 441 days to process appell ant’s case from tr ial completion to action is presumptively unr easonable. In the face of this lengthy delay, we now apply and balance the fo ur factors set out in Barker

. Id

.

As for the first factor, leng th of delay from trial to act ion, it took 275 days to complete record transcription and auth entication for a 61-pa ge record and an additional 125 days for the SJA to sign the SJAR. Th ese delays fa r exceed the timeliness standard for this respective period.

As for the second factor—reason s for the delay—we examined the explanations offered in the government brief for these delays and found them unpersuasive. Id . at 136; see United States v. Arriaga , 70 M.J. 51, 57 (C.A.A.F. 2011) (“[P]ersonnel and administrative is sues . . . are not legitimate reasons justifying otherwise unreasona ble post-trial delay.”). Furthermore, the 125 days to prepare and sign the SJAR is not only faci ally unreasona ble but not sa tisfactorily explained or justified.

The third factor also favors appellant . Appellant reques ted, to no avail, speedy processing 116 days after trial. See Moreno , 63 M.J. at 138.

Finally, consider ing the fourth factor, we find appellant has not established prejudice as a result of this delay. Id. at 138-41. Appe llant has allege d no prejudice and we find no prejudice after specifically reviewing each of the three sub-factors 4

identified in Moreno

. Id . Nor do we find the pos t-trial processing was “so egregious that tolera ting it would adversely affect th e public’s perc eption of the fairness and integr ity of the military justice system.” United States v. Toohey , 63 M.J. 353, 362 (C.A .A.F. 2006).

Nonetheless, pursuant to Article 66(c), UCMJ, we have the authority to grant appropriate relief in cases where we have not found actual prej udice to appellant,

but “unreasonable and un explained post-trial de lays” are present. United States v.

3 A third standard, timeliness of appellate re view within eighteen months before this court, is not relevant in appellant’s case. Moreno , 63 M.J. at 142-43.

4 (1) Oppressive incarcer ation pending appeal ; (2) particulariz ed anxiety and concern; and (3) impairment of ability to present a defense at rehearing. Moreno , 63

M.J. at 138-41.YELLETS—ARMY 20121107

4 Tardif , 57 M.J. 219, 220 (C.A.A.F. 2002); see 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).

In finding the 441-day delay associated w ith this case to be unreasonable, we recognize the government has specifically attempted to offer an explanation for the most egregious portions of the delay. However, we ultimately find the nearly fifteen-month delay still warran ts relief and will grant su ch relief in our decretal paragraph.

CONCLUSION

The findings of guilty are AFFIRMED. After consid ering the entire record, we AFFIRM only so much of the sentence as provides for a di shonorable discharge, confinement for eleven years and eleven months, forfeiture of all pay and allowances, and reduction to the grade of E- 1. All rights, priv ileges, and property, of which appellant has been deprived by vi rtue of that portion of the 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: