## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, HERRING, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Specialist ANTHONY M. MANLEY United States Army, Appellant

ARMY 20140381

Headquarters, United States Army Alaska Douglas Watkins, Military Judge Colonel Tyler J. Harder, Sta ff Judge Advocate (pretrial) Colonel Erik L. Christiansen, St aff Judge Advocate (post-trial)

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

For Appellee: Colonel Mark H. Sydenham , JA; Major John K. Choike, JA; Major Diara Andres, JA USAR (on brief).

22 December 2015

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

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

Per Curiam:

A military judge sitting as a general court-martial, convicted appellant, in accordance with his pleas, of two specifications of se xual assault of a child , in violation of Article 120b, Uniform Code of Military Justice, 10 U.S.C. § 920b (2012) [hereinafter UCMJ]. The milit ary judge sentenced appellant to a dishonorable discharge and confinement for twenty months. In accordance with the pretrial agreement, the convening author ity approved only ei ghteen months of
confinement but otherwise approved the findings and se ntence as adjudged.

This case is before us pursuant to Article 66, UC MJ. Appellant raises one assignment of error which merits discussion and relief.MANLEY—ARMY 20140381

2 BACKGROUND

Appellant’s court-martial concluded 12 May 2014. On 30 June 2014, trial

defense counsel and tr ial counsel received the record of trial for review. Trial counsel completed review on 2 July 2014 and trial defense counsel followed fourteen days later. On 22 July 20 14, the military judg e authenticated the record of trial. The staff judge advocate signed his reco mmendation (SJAR) on 24 September 2014. Appellant received th e authenticated record of trial and SJAR on 25 October 2014. The government received post-trial matters on behalf of th e appellant on 17 November 2014, however the re cord has no request for a twenty-day extension from trial defense counsel pursuant to R.C.M. 1005(c)(1). The staff judge advocate signed the addendum on 15 December 2014 and the convening aut hority took action the same day.

LAW AND DISCUSSION

In United States v. Moreno , our superior court established timeliness
standards for various stages of the post-tr ial and appellate proc ess. 63 M.J. 129, 142-43 (C.A.A.F. 2006). The Moreno standard applicable in this case is that a convening authorit y should take action within 120 days after the trial is completed. 1 Id . at 142

. Failure to satisfy this stan dard creates a “p resumption of unreasonable delay,” prompting this court to apply and balance the four factors set
out in Barker v. Wingo , 407 U.S. 514, 530 (1972), in order to determine whether appellant’s due process rights we re violated by the delays. See Moreno , 63 M.J. at
136.

The post-trial processing tim e in appellant’s case is 2 04 days from sentence to action. This delay is pr esumptively un reasonable. Id . at 142. In th e face of this lengthy delay, our next step is to appl y and balance the four factors set out in

Barker , in order to determine wh ether appellant’s due proces s rights were violated.

Id. at 136.

Appellant’s trial defense counsel took fo urteen days longer than the trial

counsel for trial transc ript errata. The gov ernment served appellant with the record

of trial for review 166 days after th e conclusion of appellant ’s trial. Rule for Courts-Martial 1106(f)(5) auto matically grants defense ten days to submit post-trial

matters. Trial defense counsel submitted post-trial matte rs thirteen days after their automatic due date. Therefore, defense is responsible for twenty-seven days of posttrial processing, and the government’s processi ng time from trial to initial action is

1 Two other standard—tim eliness of docketing with this court after initial action and timeliness of appellat e review before this court—are not relevant in appellant’s case.

Moreno , 63 M.J. at 142-43.MANLEY—ARMY 20140381

3 177 days. See United States v. Garman, 59 M.J. 677 (Army Ct. Crim. App. 2003)

. The delay from trial to initial action is fift y seven days more th an where this court presumes unreasonable delay in post-trial processing between sentence and action.

See Moreno , 63 M.J. at 142. This facially unreasonable delay triggers our review of the remaining Moreno factors: reasons for the delay; ti mely assertion of the right to speedy post-trial review; and prejudice. Id. at 135-36.

As to the second Moreno factor, the explanation by the chief of military justice was a lack of personne l and experience in post-trial processing. Our superior court has held that “personnel and admini strative issues . . . are not legitimate reasons justifying othe rwise unreasonable post-trial delay.” United States v. Arriaga , 70 M.J. 51, 57 (C.A.A.F. 2011). The reasons for the delay weigh in favor of appellant.

The third Moreno factor weighs slightly in fa vor of the government, as the appellant did not assert his ri ght to speedy post- trial processing until 189 days after sentencing.

Turning to the fourth Moreno factor, appellant fails to demonstrate prejudice. Although we find no due process violation af ter consideration of the Moreno factors, we review the appropriateness of the senten ce in light of the unjustified dilatory post-trial proces sing. UCMJ ar t. 66(c). See Moreno , 63 M.J. at 138-42; United States v. Toohey , 63 M.J. 353, 362 (C.A.A.F. 2006); United States v. Tardif , 57 M.J. 219, 224 (C.A.A.F. 2002 ). After considerat ion of the entire re cord, we conclude appellant’s case warrants relief in the form of a thirty-day reduction in confinement under Article 66(c), UCMJ, for the un reasonable post- trial delay. See Tardif

, 57 M.J. at 224.

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
and confinement for seventeen months. Al l rights, privileges , and property, of which appellant has been deprived by virtue of that portion of th e 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: