## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, HERRING, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Private (E2) DANTE J. ELLIS United States Army, Appellant

ARMY 20150827

Headquarters, 1st Cavalry Di vision (Rear)(Provisional) Bernie LaForteza, Military Judge

Lieutenant Colonel Oren H. McKnel ly, Staff Judge Advocate (pretrial)

Lieutenant Colonel Michae l D. Jones, Staff Judge Advocate (recommendation) Lieutenant Colonel Scott E. Linger , Staff Judge Advo cate (addendum)

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Li eutenant Colonel Charles D. Lozano, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Melissa Dasg upta Smith, JA; Capt ain Jennifer A. Dona hue, JA (on brief).

3 November 2016

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

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

CAMPANELLA, Senior Judge:

Where the government is responsible fo r 223 days of unexp lained post-trial delay in processing a ninety-two page record, we grant relief.

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of three specifications of being absent w ithout leave, in violation of Article 86, Unif orm Code of Military Justice, 10 U.S.C. § 886 (2012) [hereinafter UCMJ]. The military judge sentenced ap pellant to a bad-conduct discharge, six months of confinement, and reductio n to the grade of E-1. The military judge also credited appellant with forty-four days of pretrial confinement credit against the sentence to confinement. Pursuant to a pret rial agreement, the convening authority approved only so much of the adjudg ed sentence as provided for a bad-conduct discharg e, confinement for sixty days, and reduction to the grade of E-1. He also approved forty-four days of confin ement credit.ELLIS—ARMY 20150827

2 This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises one allegati on of error—dilatory post-trial processing—whi ch merits relief.

LAW AND DISCUSSION

The panel sentenced appellant on 18 December 2015. Defense counsel received the ninety-two page record of trial (ROT) for review on 21 January 2016 and completed her examination of the ROT on 7 March 2016. Ther e is no indication

in the record as to when trial counsel completed his exam ination of the ROT. *
Defense counsel reques ted, and received, a twenty-day extension to s ubmit matters to the convening authority under Rule for Courts-Marti al [R.C.M.] 1105. Article 60(b)(1), UCMJ, provides that an accused’ s submissions to the convening authority

“shall be made within 10 days after the accused has be en given an authenticated record of trial and, if app licable, the recommenda tion of the staff judge advocate.”

If an accused shows addition al time is required to subm it matters, for “good cause” the government “may extend th e applicable period . . . for not more than an additional 20 days.” UCMJ art. 60(b)(2) (emphasis added). The initial ten-day period is attributable to the government, the next twenty-day period is attributable to

the defense. United States v. Banks , 75 M.J. 746, 2016 CCA LEXIS 483, at *5-6 (Army Ct. Crim. App. 16 Aug. 2016).

Of the 243 days from sentence to action, the defense is resp onsible for twenty days and the government is responsible for 223 days. There is a presumption of unreasonable delay where the convening authority does no t take action within 120 days of the comple tion of trial. United States v. Moreno , 63 M.J. 129, 142 (C.A.A.F. 2006). The gove rnment concedes it canno t provide a reasonable explanation for the length of the delay because no explan ation can be found in the record. Appellant di d not assert his righ t to speedy post-trial processing and does not claim prejudice be cause of the delay.

Although we find no due process violation in the post-trial processing of appellant’s case, we must still review the ap propriateness of the sentence in light of the dilatory post-trial proc essing. UCMJ art. 66(c); United States v. Tardif , 57 M.J. 219, 224 (C.A.A.F. 2002 ) (“[Pursuant to Article 66(c), UCMJ, service courts are] required to determine what findings and senten ce ‘should be approv ed,’ based on all

the facts and circumstances reflected in the record, in cluding the une xplained and unreasonable post-trial delay.”). See United States v. Collazo , 53 M.J. 721, 727

* The time the trial counsel took to review the ROT does not count as defense delay. See e.g. United States v. Toro , ARMY 20130441, 2015 CCA LEXIS 450 , at *11 fn. 17 (Army Ct. Crim. App. 23 October 2015). Gi ven the lack of info rmation as to the

time the trial counsel took to review the ROT, we do not count the fo rty-six days

that defense counsel took to review the RO T as defense delay.ELLIS—ARMY 20150827

3 (Army Ct. Crim. App. 2000). We find relief from this court is appr opriate. As such this court provides relief in our decretal paragraph.

CONCLUSION

Upon consideration of th e entire record, the fi ndings of guilty are

AFFIRMED. Given the d ilatory post-trial proc essing, we affirm on ly so much of the

sentence as extends to a bad-conduct disc harge, confinement for thirty days, and reduction to the grade of E-1. All rights, privileges, and pr operty, 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).

Judge HERRING and Judg e PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: