## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, KRAUSS, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Private First Clas s STEPHEN C. DAVIS United States Army, Appellant

ARMY 20110330

Headquarters, 82d Ai rborne Division
Karin G. Tackaber ry, Military Judge
Colonel Lorianne M. Campanella, Staff Judge Advocate

For Appellant: Lieutenant Colonel Jonath an F. Potter, JA; Captain Robert A. Feldmeier, JA (on brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues, JA; Captai n Benjamin W. Hogan, JA (on brief).

22 May 2014

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

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

HAIGHT, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his plea, of one specificati on of wrongful use of co caine, in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (2 006) [hereinafter UCMJ]. Contrary to his plea s, the military judge also convicted appellant of two specifications of aggravat ed sexual assault and one specification of assault consummated by battery in violation of Articles 120 an d 128, UCMJ (2006 & Supp. III 2010). Th e convening authority approved the adjudged sentence of a dishonorable discharge, confinement for six years, forfeitu re of all pay and allowances, and reduction to the grade of E- 1. Additionally, th e convening authority credited appellant with 277 days of pretrial conf inement.DAVIS—ARMY 20110330

2 This case is before us pursuant to Article 66, UC MJ. Appellan t raises one assignment of error, which me rits discussion and relief. 1 Additionally, a related issue involving the Staff Ju dge Advocate’s (SJA) failure to comment on legal error also warrants discussion, but no additional relief.

Background

Appellant’s general court-martial adjourned on 3 Ma y 2011. On 23 June 2012, 417 days later, the convening auth ority took action. These 417 days
include an initial 227 days for the government to tran scribe the 399-p age record of trial and then an additional 76 days befo re the record was received by the military judge for authentication. The military judge authenticated the reco rd six days later,
on 7 March 2012. Followin g the convening authority’s action on 23 June 2012, another 37 days elapsed before this court received the record of trial from Fort Bragg, North Carolina on 30 July 2012. Ap proximately 22 m onths have now elapsed since that date.

In the clemency matters submitted by de fense counsel on behalf of appellant pursuant to Rule for Courts-Martial [hereinafter R. C.M.] 1105, in a paragraph titled “Dilatory Post-Trial Proces sing,” defense counsel allege d the government violated the post-trial processing standards re cognized by our su perior court in United States

v. Moreno , 63 M.J. 129 (C.A.A.F. 2006 ), and by this court in United States v

. Collazo , 53 M.J. 721 (Army Ct. Crim. App. 2000).

Despite defense counsel’s specific reference to the government’s dilatory post-trial proces sing with multip le citations to legal cases and standards, the SJA, in her addendum to the convening authority, om itted any mention of this allegation of legal error. 2 The record of trial initially provided to this court contained no explanation for the delays in processing. In its response to appellant’s assignment of error before this court, the Government Appellate Division secured an affidavit
from the conv ening authority’s curren t chief of military ju stice on 19 December 2013. In his affidavit, the chief of military justice c ited numerous reasons for the delays, to include court reporter shortages, a high volume of cases, efforts to process

1 Appellant also personally raises several issues pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982 ), none of which merit discussion or relief.

2 See United States v

. Arias , 72 M.J. 501 (Army Ct. Crim . App. 2013). In this case, any possible prejudice suffered by appellan t due to the SJA’s failure to comment on a legal issue raised in appe llant’s R.C.M. 1105 submission is fully and appropriately addressed and remedied by our resolution of the assigned error and the provided
relief.DAVIS—ARMY 20110330

3 trials conducted at Fort Bragg thro ugh a convening authority located in Afghanistan, and challenges obtaining add itional enlisted lega l support due to the “all-volunteer
nature of the 82d Ai rborne Division and the requirement to complete Airborne training.”

Dilatory Post-Trial Processing

In Moreno , our superior court established timeliness standards for various stages of the post-tria l and appellate process. 63 M. J. at 142-43. Specifically, action of the convening au thority should be taken no later than 120 days after completion of the trial; the re cord of trial should be docketed with this court within 30 days of the convening auth ority’s action; and this cour t should render its initial
decision within 18 months of receiving appellant’s case. Id. Failure to satisfy any of these standards creates a “presumption of unreasonable delay that will serve to trigger the Barker four-factor analysis.” 3

Here, the standard for each respective period of post -trial processing has been exceeded. Thus, the presum ption of unreasonable delay has been triggered. However, despite these delays, as well as appellant’s asse rtion of this issue in his
R.C.M. 1105 matters and befo re this court, and the unp ersuasive nature of the government’s explanations 4 for its dilatory pr ocessing, appellant is still not entitled to relief pursuant to Moreno . Appellant has fa iled to demonstrat e that he suffered any prejudice as a result of the delays, an d we find this factor alone outweighs the first three to a degree that we can confidently conclude his due process rights were
not violated as a result of the dilatory proc essing. Further, while the delay is excessive, it is not “so egregious that to lerating it would adversely affect the public’s perception of the fa irness and integrity of the military ju stice system.” United States v. Toohey , 63 M.J. 353, 362 (C .A.A.F. 2006). Howe ver, this does not foreclose appellant from relief.

Even in the absence of actual prejudice fro m unreasonable post-trial processing, this court is still authorized to grant relief for ex cessive delay in our assessment of the appropriateness of appellant ’s sentence pursuant to Article 66(c),
UCMJ. See United States v. Tardif , 57 M.J. 219, 224 (C.A.A.F. 2002); Collazo , 53

3 (1) length of delay; (2) re asons for delay; (3) appellant’ s assertion of the right to a timely review and appeal; and (4) prejudice to appellant. Moreno , 63 M.J. at 136-
41.

4 See United States v. Arriaga , 70 M.J. 51, 57 (C.A.A.F . 2011) (“[P]ersonnel and
administrative issues . . . are not legitimate reas ons justifying otherwise unreasonable post-trial delay.”).DAVIS—ARMY 20110330

4 M.J. at 727. Here, a delay of nearly 14 months to proce ss a 399-page record of trial coupled with an additional 37 days to tran sport the record to this court is excessive
and warrants relief. Furt her, the 22-month period to complete appellate review
before this court exacerbated the prob lem. As such, we provid e relief in our decretal paragraph below.

Conclusion

The findings of guilty are AFFIRMED. After consid ering the entire record, appellant’s assigned error, and those matters personally raised by appellant pursuant

to Grostefon , 12 M.J. 431, we affirm only so much of the sentence as provides for a dishonorable discharge, confinement for se venty (70) months, fo rfeiture of all pay and allowances, and reducti on to the grade of E-1. All rights , privileges, and property of which appellant has been depr ived by virtue of that portion of his sentence set aside by this de cision, are ordere d restored. See UCMJ arts. 58b(c) and 75(a).

Senior Judge COOK and Judge KRAUSS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: