## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, HERRING, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant DAVID L. STAPLES United States Army, Appellant

ARMY 20130704

Headquarters, National Trai ning Center and Fort Irwin Douglas K. Watkins and Timothy P. Hayes, Jr., Military Judges Lieutenant Colonel Gail A. Curley , Staff Judge Advo cate (pretrial) Lieutenant Colonel Jeffrey A. Miller, Staff Judge Advocate (post-trial)

For Appellant: Capt ain Brian D. Andes, JA; Mr. William E. Cassara, Esq. (on brief).

For Appellee: Major A.G. Courie III, JA; Captain Sc ott L. Goble, JA (on brief).

30 October 2015

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

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

Per Curiam:

A military judge, sitting as a general court-martia l, convicted appellant, contrary to his plea s, of one specification of rape , in violation of Article 120,
Uniform Code of Militar y Justice, 10 U.S.C. § 920 (2006 & Supp. V 2012) [hereinafter UCMJ]. Pursuant to his pleas, the milit ary judge convicte d appellant of one specification of failur e to obey a lawful order 1 and one specificat ion of adultery
in violation of Articles 92 and 134, UCMJ, 10 U.S.C. §§ 892, 934 (2006). The military judge senten ced appellant to a dishonorabl e discharge, confinement for fifteen years, and redu ction to the grade of E-1. Th e convening auth ority approved the findings and sentence bu t waived automatic forfeiture s for a period of six months
with direction that these fu nds be paid to Mrs. RJ.

1 Appellant pled guilty to the failure to obey a lawful order but excepted the words, “why are you doing this to me , I said I’m sorry. ” The government offered evidence of the excepted words and the military judge found appellant gu ilty of the specification except the words, “I said I’m sorry.”STAPLES—ARMY 20130704

2 This case is before us pursuant to Article 66, UC MJ. Appellant raises three assignments of error, one of which merits discussion and relief. The matters personally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), are without merit.

BACKGROUND

Appellant’s court-martial concluded on 9 August 2013. Trial counsel and

defense counsel received th e record of trial for revi ew on 3 December 2013 and completed review on 7 and 19 December 2 013, respectively. The military judge

authenticated the record of trial on 3 February 2014. The staff judge advocate signed his recommendation (SJAR) on 12 February 2014 and served it in conjunction with the authenticated record of trial on appellan t’s defense counsel on 14 February 2014. Appellant received th e authenticated record of trial and SJAR on 28 February 2014. The government received post-trial matters on behalf of the ap pellant on 3 April 2014. The staff judge advo cate signed the addendum on 18 April 2014 and the convening authority took action the same day. Th is court received the record of trial on 30 April 2014.

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 ap plicable in this case is that a convening authorit y should take action within 120 days after the trial is completed. 2 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.

Taking over 252 days to process appe llant’s case from tr ial completion to initial action is presumptively unreasonable and violates th e standard for timeliness.
Id. at 142. In the face of this lengthy delay, our next step is to apply and balance the

four factors set out in Barker , in order to determine whether appellant’s due process rights were violated. Id. at 136.

2 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.STAPLES—ARMY 20130704

3 The post-trial processing tim e in appellant’s case is 2 52 days from sentence to action. The government served defense couns el with the record of trial for review 116 days after the conc lusion of appellant’s trial. Defense couns el completed their

review of the record and requested speedy post-trial processi ng in sixteen days, twelve days after the trial counsel. On 14 February 2014, the government served

defense counsel with the staff judge advocate recomme ndation (SJAR), and appellant

received the SJAR on 28 Febr uary 2014. Thirty -four days elapsed before post-trial matters were submitted to the staff judge advocate, 3 which was 23 7 days after appellant’s trial. Additionally, Rule fo r Courts-Martial 1106( f)(5) automatically grants defense ten days to submit post-trial matters. With twenty-five days of delay attributable to the defense, the processing time from trial to in itial action is 227 days. See United States v. Garman, 59 M.J. 677 (Army Ct. Crim. App. 2003)

. The delay from trial to initial action is 107 days more than where this court presumes unreasonable delay in post -trial processing betwee n sentence a nd action. See

Moreno , 63 M.J. at 142. This fa cially unreasonable delay triggers our review of the remaining Moreno factors: reasons for th e delay; timely assert ion of the right to speedy post-trial review; and prejudice. Id. at 135-36.

As to the second Moreno factor, the explanation by the SJA is “The only court reporter assigned to Fort Irwin attended the Warrio r Leader Course (WLC) from 14 July 2013 to 12 August 2013 and was on leave for approxi mately two weeks prior to reporting to the course . Upon her return, in addition to transcribing th e subject case,

she also had to transcribe another contested court-martial which was conducted the day prior to completion of th e subject case.” Our supe rior court has held that “personnel and administrati ve issues . . . are not le gitimate reason s justifying
otherwise unreasonable post-trial delay.” United States v. Arriaga , 70 M.J. 51, 57 (C.A.A.F. 2011). Th e reasons for the de lay weigh in favo r of appellant.

3 Pursuant to the Fiscal Year 2014 National Defense Authorization Act, Section 1706, the government se rved the SJAR and re cord of trial on th e victim on 7 March
2014. She then had ten days to submit post -trial matters. On 17 March 2014, the victim, through c ounsel, submitted post -trial matters for co nsideration to the convening authority. As this submi ssion by the victim contained new matter pursuant to RCM 1106(f )(7), the government served her submission on the defense,
which afforded them ten da ys to submit additi onal matters. On 12 March 2014, the
defense submitted a tw enty-day delay request for submission of post-trial clemency matters, which was approved. The accused submitted his post-trial matters on 8 April 2014, and th e convening authority took action on 18 Ap ril 2014. Because the defense receives ten days under RCM 1106(f )(5) and 1106(f)(7) to submit post-trial matters and respond to any “n ew matters,” those days do not count as defense delay in our analysis.STAPLES—ARMY 20130704

4 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 131 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, confinement for fourteen years and eleven m onths, and reduction to the grade of E-1. All rights, privileges, and pr operty, of which appellant ha s been depriv ed by virtue of that portion of the sent ence set aside by this deci sion 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: