## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HAIGHT, MULLIGAN, and ALMANZA 1 Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class CASEY N. O’BRIEN United States Army, Appellant

ARMY 20130095

Headquarters, III Co rps and Fort Hood Patricia Lewis, Military Judge Colonel Stuart W. Risch, Sta ff Judge Advocate (pretrial) Colonel Ian G. Corey, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Ch arles D. Lozano, JA; Major Aaron R. Inkenbrandt, JA; Captain Heathe r L. Tregle, JA (on brief).

For Appellee: Colonel Mark H. Sydenham , JA; Major A.G. Courie III, JA; Major John K. Choike, JA; Major Matthew T. Grady, JA (on brief).

30 September 2015

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

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

ALMANZA, Judge:

A military judge sitting as a general court-martial convicted appellant, consistent with his pleas, of one specif ication of false official statement, one specification of assault consu mmated by a battery, and one specification of unlawful entry, in violation of Article s 107, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 928, and 934 [hereinafter UCMJ]. 2 The military judge sentenced

1 Judge ALMANZA took final action in this case while on active duty.

2 In addition, appellant was charged with f our specifications alle ging violations of Article 120, UCMJ (r ape, aggravated se xual assault, and indecent acts), two

(continued . . .)O’BRIEN—ARMY 20130095

2 appellant to a bad-conduct discharge, hard labor wit hout confinement for three months, forfeiture of $500 pay per month for three months, an d reduction to the grade of E-1. The convening authority appr oved only so much of the adjudged sentence as provided for a bad-conduct discharge, forfe iture of $500 per month for three months, and reduction to the grade of E-1.

This case is before us pursuant to Article 66, UC MJ. Appellan t raises one assignment of error, which me rits discussion and relief.

BACKGROUND

Appellant’s trial concluded on 31 January 2013. Th e military judge authenticated the 624-page reco rd of trial on 6 January 2014, 3 and it was served on appellant on 13 June 2014. The staff judge advocate (SJA) signed his post-trial recommendation on 13 July 2014, and it was serv ed on appellant on 25 July 2014. Appellant submitted his post -trial matters pur suant to Rule fo r Courts-Martial [hereinafter R.C.M.] 1105 on 11 September 2014. Th e convening authority took action on 24 September 2014. This case was docketed with this court on 6 October

2014.

A total of 601 days elap sed between the date sent ence was adjudged and the date the convening auth ority took action. Subtracting 32 days of defense delay in submitting R.C.M. 1105 matter s, 569 days elap sed between the da te sentence was adjudged and the date the convening authority took action.

In his R.C.M. 1105 matters, appellant as serted legal error in that post-trial processing of his case exceede d 120 days, in violation of United States v. Moreno

, 63 M.J. 129 (C.A.A.F. 2006). Although appellan t asserted prejud ice resulting from post-trial delay, he does not assert prejudice in his brief before this court. Appellant

(. . . continued) specifications alleging violations of Arti cle 128, UCMJ (assault consummated by battery), one specification alleging a violat ion of Article 130, UCMJ (housebreaking
with intent to commit assault), and three specifications alleging violations of Article 134, UCMJ (assault with in tent to commit rape, comm unicating indece nt language, and a general disorder). The military judg e dismissed some of these specifications before pleas and dismissed the remainder of these specifications after entering findings.

3 The military judge dated th e authentication, “6 Jan 2013,” but on that same page acknowledged that she received the record of trial for re view on 19 December 2013. Accordingly, we find that the date of “6 Jan 2013” on the military judge’s
authentication was a mere scrivener’s error and that she authenticated the record of trial on 6 January 2014.O’BRIEN—ARMY 20130095

3 argues that the convening authority’s disapproval of the hard labor without confinement portion of his adjudged sentence was not a remedy for the post-trial delay, and asks this court to set aside either the approved forfeitures or the badconduct discharge.

In its brief, the governme nt notes several factors cont ributing to the delay in
this matter but neve rtheless “acknowledges that dilatory post -trial pr ocessing occurred in appellant’s ca se.” The government argues , however, that appellant already received relief for this delay when the convenin g authority did not approve the portion of appellant’s adj udged sentence that provided for thre e months of hard
labor without conf inement. The government also argu es that should th is court grant further relief, such relief should be limite d to setting as ide the adjudged forfeitures.

LAW AND DISCUSSION

Appellant’s assigne d error states:

THE UNEXPLAINED DILATORY POST-TRIAL

PROCESSING OF APPELLANT’S CASE WARRANTS
RELIEF WHERE IT TOOK 569 DAYS FROM TRIAL TO

ACTION.

We review de novo appellant’s claim that he ha s been denied his due process right to speedy post -trial review. Moreno , 63 M.J. at 135. Ou r superior court has adopted the four-factor balancing test from Barker v. Wingo , 407 U.S. 514, 530 (1972) to determine whether a due process violation has occurred: (1) the length of the delay; (2) the reasons for the delay; (3 ) the appellant’s assertion of the right to timely review and appeal ; and (4) prejudice. Id.

We presume unreasonable delay when mo re than 120 days elapse between completion of an appellan t’s trial and action by th e convening authority. Id. at 142.

Appellant asserts no pr ejudice and we find none. Ho wever, we may nonetheless find a due process violation if “in balancing the other three factors, the delay is so egregious that tolerating it wo uld adversely affect th e public’s perception

of the fairness and in tegrity of the military justice system.” United States v. Toohey

, 63 M.J. 353, 362 (C.A.A.F. 2006). Having considered the lengthy delay, the government’s concession that “dilatory post-trial processi ng occurred in appellant’s case,” and appellant’s rais ing of the issue of post-tr ial delay to the convening authority, we find that the post-trial delay in this case is sufficiently egregious to find a due-proces s violation under Toohey

. Id

.O’BRIEN—ARMY 20130095

4 We find the convenin g authority’s disapproval of the adjudged hard labor
without confinement was not intended as a re medy for the post-tri al processing delay in this case. In his po st-trial recommendation, th e SJA recommended that the convening authority only approve the sent ence of a bad-cond uct discharge, the forfeitures, and reducti on to the grade of E-1. After receivin g appellant’s R.C.M. 1105 matters, which in releva nt part alleged le gal error resulting from the delay in post-trial processing, the SJA in the addendum to his recommendation disagreed with appellant’s assertion of legal error and stated no corrective action was needed. In that addendum, the SJA also recommended that the convening authority grant clemency by only approving so much of a ppellant’s sentence as provided for a badconduct discharge, fo rfeiture of $500 per month for three months , and reduction to the grade of E-1. These facts lead us to conclude that the convening authority’s decision not to approve the adjudged three m onths of hard labor without confinement was an act of clemency, not an act intended to provide relief for the delayed posttrial processing of appellant’s case.

As outlined above, despite his approved sentence bein g less severe than that adjudged at trial, appellant has not yet r eceived any relief for the undue po st-trial delay in his case. We will provide him that relief by appr oving only so much of the sentence as provides for a bad-conduct discharge and re duction to the grade of

E-1.

We must also review the appropriateness of appellant’s sentence in light of the lengthy post-trial processing in this case. See UCMJ art. 66(c); United States v. Tardif , 57 M.J. 219, 224 (C.A.A .F. 2002) (Pursuan t to Article 66(c) , UCMJ, service courts are “required to determine what find ings and sentence ‘s hould be approved,’

based on all the facts and circumstances reflected in the record, including the unexplained and un reasonable post-trial delay.”). Upon review of the entir e record, to include, inter alia

, the lengthy post-trial delay, the governmen t’s concession, and the absence of prejudice, we find appellant’s now reduce d sentence is appropriate.

CONCLUSION

The findings of guilty are AFFIRMED. After consid ering the entire record, the court AFFIRMS only so mu ch of the approved senten ce as provid es for a badconduct discharge and reduction to the gr ade of E-1. All rights, privileges, and property, of which ap pellant has been depr ived by virtue of that portion of the sentence set aside by this decision are ordered restored. See UCMJ arts. 58b(c) and 75(a).O’BRIEN—ARMY 20130095

5 Senior Judge HAIGHT and Senior Judge MULLIGAN concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: