## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HAIGHT, WEIS, and ALMANZA 1 Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 DEVIN L. GOETSCH

United States Army, Appellant

ARMY 20140623

Headquarters, 19th Expeditionary Sustainment Command Mark A. Bridges, Military Judge

Lieutenant Colonel Maureen A. Kohn, Staff Judge Advocate

For Appellant: Major Andres Vazquez, Jr., JA; Captain Jo hn L. Schriver, JA.

For Appellee: Major A. G. Courie III, JA.

30 September 2015

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

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

WEIS, Judge:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of failure to ob ey a lawful general order and two specifications of wrongful distribution of a controlled substance, in violation of Articles 92 and 112a, Uniform Code of Milita ry Justice, 10 U.S.C. §§ 892 and 912a [hereinafter UCMJ]. The convening author ity approved the adjudged sentence of a bad-conduct discharge, confinement for fi ve months, forfeiture of $800 .00 pay per month for five months, and reduction to the grade of E-1.

This case is before us pursuant to Article 66, UCMJ. Appellate defense counsel submitted the case for appellate revi ew on its merits. However, appellant also personally raises several issues pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), one of which merits disc ussion and relief.

Background

1 Judge WEIS and Judge ALMANZA both took action while on active duty.GOETSCH—ARMY 20140623

2 Appellant’s court-martial adjourned on 8 August 20 14. On 13 May 2015, 278 days later, the convening authority took ac tion. This period in cludes an initial 175 days for the government to tr anscribe the 85-page record of trial and deliver it to the military judge for authentication on 30 January 2015. The military judge authenticated the record the day he received it, but another 33 days elapsed before the Staff Judge Advocate (SJA) completed her post-trial recomme ndation (SJAR) to the convening authority on 4 Ma rch 2015. Appellan t received a copy of the record on 10 April 2015, and tr ial defense counsel took 30 days to submit clemency matters on appellant’s behalf on 10 May 2015. The SJ A’s addendum to th e SJAR and the convening authority’s action were completed three days later, and this court received

the record of trial from Korea on 28 May 2015.

In the clemency matters subm itted on behalf of appellant pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 1105 , defense counsel a lleged the government violated the post-trial pr ocessing standards recognize d by our superi or court in

United States v. Moreno , 63 M.J. 129 (C.A.A .F. 2006), and that the delay amounted to legal error. In her adde ndum, the SJA disagreed with this assertion and concluded “[n]o corrective action [was] required” and “no clemency [was] warranted” in appellant’s case. The record of trial is de void of any explanation or justification for post-trial processing time, which took more than nine months.

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. Id. 2 Failure to satisfy any of these standards creates a “presumption of unreasonable delay,” promp ting this court to apply and balance the

four factors set out in Barker v. Wingo , 407 U.S. 514, 530 (1972), to determine whether appellant’s due process rights were violated. See Moreno , 63 M.J. at 136.

The first factor, length of delay, plainl y weighs in appellan t’s favor. Here, the post-trial processing standard for th e completion of the c onvening authority’s action was exceeded by a sign ificant margin. We therefore proceed to the remaining three factors, beginning with “[r]easons for the delay.” Id. Here, the government

has offered none and we will not speculate without more. The third factor, assertion of the right to a ti mely review and appeal, also we ighs in appellant’s favor. Id . at
138. Defense counsel specifically requested speedy post-trial pr ocessing in a

memorandum to the SJA on 5 October 2014, more than seven months before the process was ultimately completed.

2 Two additional standards—th e time the government takes to deliver the record of

trial to this court and time liness of appellat e review before this court—are not

relevant here. Moreno , 63 M.J. at 142-43.GOETSCH—ARMY 20140623

3 However, despite the delays , appellant’s assertion of this issue before the convening authority and this court, and the absence of any explanation by the government for its dilatory processing, appellant is s till not entitled to relief
pursuant to Moreno . Appellant did not ma ke any effort, let alone demonstrate, that he suffered any prejudice as a result of the delay, and we find this absence outweighs the first three factors to a degree that we can confiden tly conclude his due process rights were not violated. Id . at 138. Additionally, wh ile the post-trial delay here is excessive, it is not “so egregious that tolerating 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. 2 006). Nonetheless, appellant

is not foreclosed from relief for the governme nt’s delays.

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); United States
v. Collazo , 53 M.J. 721, 727 (Army Ct. Crim. App. 2000). Here, a delay of more than nine months to proces s an 85-page record of tria l is excessiv e and warrants relief. As such, we will provide relief in our de cretal paragraph below.

Conclusion

The findings of guilty are AFFIRMED. After consid ering the entire record and those matters personally ra ised by appellant pursuant to Grostefon , 12 M.J. 431, we affirm only so much of the sentence as pr ovides for a bad-c onduct discharge,

confinement for four months , forfeiture of $800 .00 pay per month for four months, and reduction to the grade of E-1. All rights, privileg es, and property of which appellant has been deprived by virtue of th at portion of his sentence set aside by this decision, are orde red restored. See UCMJ arts. 58b(c) and 75(a).

Senior Judge HAIGHT and Judge ALMANZA concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court Clerk of Court FOR THE COURT: