UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class PATRICK S. HANBERRY

United States Air Force

ACM S32251

22 October 2015

Sentence adjudged 8 May 2014 by SPCM convened at Seymour Johnson 

Air Force Base, North Carolina. Military Judge: Shaun S. Speranza (sitting 

alone).

Approved Sentence: Bad-conduct discharge, confinement for 2 months, 

and reduction to E-1.

Appellate Counsel for the Appellant: Captain Lauren A. Shure.

Appellate Counsel for the United States: Captain Tyler B. Musselman; 

Captain Richard J. Schrider; and Gerald R. Bruce, Esquire.

Before

ALLRED, MITCHELL, and MAYBERRY

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent 

under AFCCA Rule of Practice and Procedure 18.4.

MITCHELL, Senior Judge:

A special court-martial composed of a military judge sitting alone convicted 

Appellant, pursuant to his pleas, of drunken operation of a vehicle, divers wrongful use of 

marijuana, soliciting another Airman to commit the offense of wrongful interference with 

an adverse administrative proceeding, and wrongfully resisting a blood draw, in violation 

of Articles 111, 112a, and 134 UCMJ, 10 U.S.C. §§ 911, 912a, 934. The adjudged and 

approved sentence consisted of a bad-conduct discharge, confinement for two months,

and a reduction to E-1.
2 ACM S32251

Background

Appellant was a first-term Airman at his first duty station. The second day of his 

court-martial was the day he completed two years of service. Appellant smoked 

marijuana twice while on active duty in June and September 2013. Appellant was 

selected for a random urinalysis in October 2013. Concerned that his marijuana use 

would be detected, he contacted his friend, Airman First Class (A1C) ZB. He asked A1C 

ZB to provide him with a urine sample that he could submit in lieu of his own for the 

purpose of avoiding the resulting adverse consequences from a sample that was positive 

for illicit drugs. A1C ZB, who had previously used marijuana with Appellant on the two 

occasions, informed him, “mines [sic] hot too man.” 

On 14 February 2014, Appellant and three other friends decided to enjoy the 

nightlife in nearby Goldsboro, North Carolina. They planned ahead and obtained a hotel 

room. Appellant and his friends went to two bars in which they consumed beer and 

liquor. They also consumed alcoholic beverages at the hotel both before and after they 

went to the local bars. After about one hour of sleep, Appellant decided to drive his 

friends back to base so they would not be late for work. As he approached the front gate, 

Appellant swerved and went over the speed hump at a faster speed than most other 

vehicles. When he provided his military identification to the security forces member at 

the front gate, Appellant smelled of alcohol and had red, glassy eyes. When he was 

asked to perform a field sobriety test, Appellant acted in a vulgar and disrespectful 

manner. 

Appellant was later transported to the on-base clinic in order to have his blood 

drawn for testing. When the medical technician approached to perform the blood draw, 

Appellant refused. He then started kicking, spitting, and physically resisting the 

procedure. Three security forces members were required to restrain Appellant. 

Appellant finally relented and acquiesced to the procedure. Subsequent testing of his 

blood indicated a blood alcohol concentration of .193, in excess of the North Carolina 

legal limitation of .08 for those driving a car. 

Post-Trial Processing Time Standards

Appellant contends he is entitled to relief for the 31 days between convening 

authority action and docketing with this court. Appellant urges us to exercise our 

authority to grant relief under United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002).

We review de novo “[w]hether an appellant has been denied [his] due process 

right to a speedy post-trial review . . . and whether [any] constitutional error is harmless 

beyond a reasonable doubt . . . .” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 

2006). A presumption of unreasonable delay arises when docketing with this court 

occurs more than 30 days after convening authority action. United States v. Moreno, 63 
3 ACM S32251

M.J. 129, 142 (C.A.A.F. 2006). Because the time from docketing to the initial decision 

violates the Moreno standards, this presumptively unreasonable delay triggers an analysis 

of the four factors elucidated in Barker v. Wingo, 407 U.S. 514, 530 (1972), adopted in 

Moreno, 63 M.J. at 135. Those factors are “(1) the length of the delay; (2) the reasons for 

the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice 

to the appellant.” United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005) (citing

Barker, 407 U.S. at 530). Appellant concedes that he did not suffer any prejudice from 

the delay in docketing. When there is no showing of prejudice under the fourth Barker

factor, “we will find a due process violation only when, in balancing the other three 

factors, the delay is so egregious that tolerating it would adversely affect the public’s 

perception of the fairness and integrity of the military justice system.” United States v. 

Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). Having considered the totality of the 

circumstances and the entire record, when we balance the other three factors, we find the 

post-trial delay in this case to not be so egregious as to adversely affect the public’s 

perception of the fairness and integrity of the military justice system. We are convinced 

the error is harmless beyond a reasonable doubt.

However, this does not end our analysis. Having conceded that he cannot 

articulate any prejudice, Appellant focuses us on a theory of relief which does not have 

that requirement. Article 66(c), UCMJ, 10 U.S.C. § 866(c), empowers appellate courts to 

grant sentence relief for excessive post-trial delay without the showing of actual prejudice 

required by Article 59(a), UCMJ, 10 U.S.C. § 859(a). Tardif, 57 M.J. at 224; 

see also United States v. Harvey, 64 M.J. 13, 24–25 (C.A.A.F. 2006). In United States v. 

Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), we identified a list of factors to 

consider in evaluating whether Article 66(c), UCMJ, relief should be granted for posttrial delay. Those factors include how long the delay exceeded appellate review 

standards, the reasons for the delay, whether the government acted with bad faith or gross 

indifference, evidence of institutional neglect, harm to the appellant or to the institution, 

whether relief is consistent with the goals of both justice and good order and discipline, 

and whether this court can provide any meaningful relief. Id. No single factor is 

dispositive and we may consider other factors as appropriate. Id. After considering the 

relevant factors in this case, we determine that no relief is warranted. We find there was 

no bad faith or gross negligence in the post-trial processing. We find no evidence of 

harm to the integrity of the military justice system. We have the authority to tailor an 

appropriate remedy without giving Appellant a windfall. See Tardif, 57 M.J. at 225. We 

have expressly considered whether we should reduce some or all of Appellant’s sentence. 

Based on our review of the entire record, we conclude that sentence relief under Article 

66, UCMJ, is not warranted.
4 ACM S32251

Conclusion

The approved findings and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of Appellant occurred.1 Articles 59(a) and 

66(c), UCMJ. Accordingly, the approved findings and sentence are AFFIRMED.

FOR THE COURT

STEVEN LUCAS

Clerk of the Court

 

1 We note a minor typographical error in Charge I and its specification (“statue” should be “statute”) and order a 

corrected court-martial order.