## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, ALDYKIEWICZ, and MARTIN Appellate Military Judges

UNITED STATES, Appellee

v. Private DAVID O. RAMIREZ, JR. United States Army, Appellant

ARMY 20100441

3rd Infantry Division and Fort Stewart Tara A. Osborn, Military Judge
Colonel Jonathan C. Guden, Staff Judge Advo cate (pretria l & addendum) Lieutenant Colonel Shane E. Bartee, Acti ng Staff Judge Advoca te (recommendation)

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Captain John L. Schriver, JA (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley, JA; Captain Michael J. Frank, JA (on brief).

12 April 2013

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

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

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of negligent hom icide and endange ring the welfare of a child, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The milit ary judge sentenced appellant to a dishonorable discharge and confinement for fi fty-four months. In accordance with a pretrial agreement, the convening auth ority only approved a sentence to a dishonorable discharge and confinement for f our years. Appellan t was credited with seven days of confinement against his sentence to confinement.

Appellant raises three assi gnments of error for our review under Article 66, UCMJ, of which one merits discussion an d relief. Though we do not find any prejudice, we agree with appe llant that excessive post-tri al delay in the processing
of this case wa rrants relief.RAMIREZ—ARMY ARMY 20100441

2 Appellant’s general court- martial adjourned on 20 May 2010. The record of trial is 653 pages lo ng. While the defense counsel di d not make a sp ecific request for speedy post-trial pr ocessing pursuant to United States v. Moreno , 63 M.J. 129 (C.A.A.F. 2006), she did high light appellant’s pending expiration of service (ETS)
date in the Rule for Cour ts-Martial [hereinafter R. C.M.] 1105 ma tters, and the impact of the ETS on the military judge’ s clemency recommendation. The staff judge advocate (SJA) did not provide any e xplanation to the conv ening authority for the delay nor did he recomme nd any corrective action. On 23 Februa ry 2011, 279 days after the conclusion of trial, the convening auth ority took initial action. See

Moreno , 63 M.J. at 142 (creatin g a presumption of unreas onable delay when more than 120 days elapse between the completion of the court-martial a nd the convening authority’s action). The offi ce of the SJA provided a post- trial affidavit in response to appellant’s assignment of error alleging dilatory po st-trial proc essing. The
reasons for the de lay included the unti mely death of the ci vilian, senior court reporter, as well as the deployment of two military co urt reporters. The affidavit
also states that the combined defense dela y and the delay to au thenticate the record of trial was 132 days.

On 13 April 2011, 49 days after action by the conv ening authorit y, the case was docketed at the U.S. Army Court of Criminal Appeals. See id. (creating a presumption of unreas onable delay when more than 30 days el apse between action and docketing of the case at the Court of Crim inal Appeals). Review by defense appellate counsel was completed on 29 Febr uary 2012. The gov ernment appellate
counsel submitted their brief to this court on 28 Septem ber 2012. Almost two years after the case was received, this court fini shed the review of ap pellant’s record. See
id. (creating a presumption of unreasonable delay when it ta kes longer than eighteen months to complete appellat e review). The to tal time from comple tion of trial until
the decision in this case is over 1,000 days.

Under Article 66 (c), UCMJ, this court has the responsibility and the authority to assess the appropriateness of appellan t’s sentence in light of the presumptively unreasonable delay at each stage of the post -trial processing of his case. See United States v. Toohey , 63 M.J. 353, 362– 63 (C.A.A.F. 2006); United States v. Tardif , 57 M.J. 219, 224 (C .A.A.F. 2002); United States v. Collazo

, 53 M.J. 72 1, 727 (Army Ct. Crim. App. 2000). Reviewi ng the entire record of trial, a nd in light of the particular circumstances of this case, we fi nd a reduction of one month in the sentence to confinement appropriate.

CONCLUSION

On consideration of the entire record, an d appellant’s assigned errors, we hold the findings of guilty are correct in law a nd fact. Therefore, th e findings of guilty
are AFFIRMED. Based on the reasons outlined above, the court affirms only so much of the sentence as provides for a dishonorable discharge and confinement forRAMIREZ—ARMY ARMY 20100441

3 forty-seven months. All rights, privileges , and property, of which appellant has been deprived by virtue of that portion of his 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: