UNITED STATES ARMY COURT 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 Division (Rear)(Provisional) 

Bernie LaForteza, Military Judge 

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

Lieutenant Colonel Michael D. Jones, Staff Judge Advocate (recommendation) 

Lieutenant Colonel Scott E. Linger, Staff Judge Advocate (addendum) 

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Lieutenant Colonel 

Charles D. Lozano, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, 

JA; Major Melissa Dasgupta Smith, JA; Captain Jennifer A. Donahue, JA (on brief). 

3 November 2016 

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SUMMARY DISPOSITION 

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CAMPANELLA, Senior Judge: 

 Where the government is responsible for 223 days of unexplained 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 without leave, in 

violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 (2012) 

[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct 

discharge, six months of confinement, and reduction 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 pretrial agreement, the 

convening authority approved only so much of the adjudged sentence as provided for 

a bad-conduct discharge, confinement for sixty days, and reduction to the grade of 

E-1. He also approved forty-four days of confinement credit. 
ELLIS—ARMY 20150827 

2

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises one allegation of error—dilatory post-trial processing—which 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. There is no indication 

in the record as to when trial counsel completed his examination of the ROT.* 

Defense counsel requested, and received, a twenty-day extension to submit matters 

to the convening authority under Rule for Courts-Martial [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 been given an authenticated 

record of trial and, if applicable, the recommendation of the staff judge advocate.” 

If an accused shows additional time is required to submit matters, for “good cause” 

the government “may extend the 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 responsible for twenty 

days and the government is responsible for 223 days. There is a presumption of 

unreasonable delay where the convening authority does not take action within 120 

days of the completion of trial. United States v. Moreno, 63 M.J. 129, 142 

(C.A.A.F. 2006). The government concedes it cannot provide a reasonable 

explanation for the length of the delay because no explanation can be found in the 

record. Appellant did not assert his right to speedy post-trial processing and does 

not claim prejudice because of the delay. 

Although we find no due process violation in the post-trial processing of 

appellant’s case, we must still review the appropriateness of the sentence in light of 

the dilatory post-trial processing. 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 sentence ‘should be approved,’ based on all 

the facts and circumstances reflected in the record, including the unexplained 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). Given the lack of information as to the 

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

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

3

(Army Ct. Crim. App. 2000). We find relief from this court is appropriate. As such 

this court provides relief in our decretal paragraph. 

CONCLUSION 

Upon consideration of the entire record, the findings of guilty are 

AFFIRMED. Given the dilatory post-trial processing, we affirm only so much of the 

sentence as extends to a bad-conduct discharge, confinement for thirty days, and 

reduction to the grade of E-1. 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). 

Judge HERRING and Judge PENLAND concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: