United States v. Specialist JOHNATHAN D. YELLETS ( 2015 )

                                    COOK, HAIGHT, and WEIS 1
                                     Appellate Military Judges
                                  UNITED STATES, Appellee
                             Specialist JOHNATHAN D. YELLETS
                                United States Army, Appellant
                                         ARMY 20121107
                             Headquarters, III Corps and Fort Hood
                               Gregory A. Gross, Military Judge
                    Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)
                 Colonel Richard W. Rousseau, Staff Judge Advocate (post-trial)
    For Appellant: Colonel Kevin Boyle, JA; Major Patrick Gordon, JA; Captain Brian
    D. Andes, JA (on brief).
    For Appellee: Major A.G. Courie III, JA; Major Steven J. Collins, JA (on brief).
                                           22x July 2015
                                     SUMMARY DISPOSITION
    Per Curiam:
           A military judge sitting as a general court-martial convicted appellant,
    consistent with his pleas, of rape of a child, aggravated sexual abuse of a child,
    aggravated sexual contact with a child, and one specification of wrongful possession
    of child pornography, in violation of Articles 120 and 134, Uniform Code of
    Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 920 and 934 (2006 & Supp. V;
    2012). The military judge sentenced appellant to a dishonorable discharge,
    confinement for twenty-five years, forfeiture of all pay and allowances, and
    reduction to the grade of E-1. The convening authority, pursuant to a pretrial
    agreement, approved only so much of the sentence to confinement as provided for
    twelve years but otherwise approved the adjudged sentence.
        Judge Weis took final action on this case while on active duty.
    YELLETS—ARMY 20121107
          This case is before us pursuant to Article 66, UCMJ. Appellant raises one
    assignment of error, which merits discussion and relief. 2
            Appellant’s trial concluded on 5 December 2012. On 28 March 2013,
    appellant submitted a request for speedy post-trial processing. The 55-page record
    of trial was transcribed and provided to trial defense counsel for review on 25 June
    2013, 202 days after trial. On 18 July 2013, the military judge ordered a post-trial
    session, which was conducted on 4 September 2013. The 6-page record of the post-
    trial session was transcribed and provided to defense counsel and the military judge
    on 5 September 2013. The military judge authenticated the record on 6 September
    2013. The staff judge advocate (SJA) signed his post-trial recommendation (SJAR)
    over four months later on 9 January 2014.
           On 7 February 2014, appellant’s defense counsel submitted post-trial
    clemency matters in which she, inter alia, alleged the government had exceeded
    timeliness standards in the post-trial processing of appellant’s case prescribed by our
    superior court in United States v. Moreno, 
    63 M.J. 129
     (C.A.A.F. 2006). In his
    addendum to the SJAR, dated 25 February 2014, the SJA identified the issue as one
    that may represent an allegation of legal error but disagreed that legal error had
    occurred and recommended the convening authority take no corrective action. The
    convening authority took action on 25 February 2014, 441 days after the trial. On
    27 March 2014, 30 days after action, the record was received at this court.
          In his lone assigned error, appellant alleges:
                 SIXTY-ONE PAGES.
            In Moreno, our superior court established timeliness standards for various
    stages of the post-trial and appellate process. 63 M.J. at 136-43. Specifically,
    initial action of the convening authority should be taken no later than 120 days after
    completion of the trial, and the record of trial should be docketed with this court
     Appellant also personally raises three issues pursuant to United States v.
    12 M.J. 431
     (C.M.A. 1982), none of which merits discussion or relief.
    YELLETS—ARMY 20121107
    within 30 days of the convening authority’s action. Id at 142-43. 3 Failure to satisfy
    any of these standards creates a “presumption of unreasonable delay,” prompting this
    court to apply and balance the four factors set out in Barker v. Wingo, 
    407 U.S. 514
    530 (1972), in order to determine whether appellant’s due process rights were
    violated by the delays in processing. See Moreno, 63 M.J. at 135-36.
           Here, taking 441 days to process appellant’s case from trial completion to
    action is presumptively unreasonable. In the face of this lengthy delay, we now
    apply and balance the four factors set out in Barker. Id.
           As for the first factor, length of delay from trial to action, it took 275 days to
    complete record transcription and authentication for a 61-page record and an
    additional 125 days for the SJA to sign the SJAR. These delays far exceed the
    timeliness standard for this respective period.
           As for the second factor—reasons for the delay—we examined the
    explanations offered in the government brief for these delays and found them
    unpersuasive. Id. at 136; see United States v. Arriaga, 
    70 M.J. 51
    , 57 (C.A.A.F.
    2011) (“[P]ersonnel and administrative issues . . . are not legitimate reasons
    justifying otherwise unreasonable post-trial delay.”). Furthermore, the 125 days to
    prepare and sign the SJAR is not only facially unreasonable but not satisfactorily
    explained or justified.
          The third factor also favors appellant. Appellant requested, to no avail,
    speedy processing 116 days after trial. See Moreno, 63 M.J. at 138.
           Finally, considering the fourth factor, we find appellant has not established
    prejudice as a result of this delay. Id. at 138-41. Appellant has alleged no prejudice
    and we find no prejudice after specifically reviewing each of the three sub-factors 4
    identified in Moreno. Id. Nor do we find the post-trial processing was “so
    egregious that tolerating it would adversely affect the public’s perception of the
    fairness and integrity of the military justice system.” United States v. Toohey, 
    63 M.J. 353
    , 362 (C.A.A.F. 2006).
          Nonetheless, pursuant to Article 66(c), UCMJ, we have the authority to grant
    appropriate relief in cases where we have not found actual prejudice to appellant,
    but “unreasonable and unexplained post-trial delays” are present. United States v.
     A third standard, timeliness of appellate review within eighteen months before this
    court, is not relevant in appellant’s case. Moreno, 63 M.J. at 142-43.
     (1) Oppressive incarceration pending appeal; (2) particularized anxiety and
    concern; and (3) impairment of ability to present a defense at rehearing. Moreno, 63
    M.J. at 138-41.
    YELLETS—ARMY 20121107
    57 M.J. 219
    , 220 (C.A.A.F. 2002); see United States v. Ney, 
    68 M.J. 613
    , 617
    (Army Ct. Crim. App. 2010); United States v. Collazo, 
    53 M.J. 721
    , 727 (Army Ct.
    Crim. App. 2000).
           In finding the 441-day delay associated with this case to be unreasonable, we
    recognize the government has specifically attempted to offer an explanation for the
    most egregious portions of the delay. However, we ultimately find the nearly
    fifteen-month delay still warrants relief and will grant such relief in our decretal
           The findings of guilty are AFFIRMED. After considering the entire record,
    we AFFIRM only so much of the sentence as provides for a dishonorable discharge,
    confinement for eleven years and eleven months, forfeiture of all pay and
    allowances, 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 the sentence set
    aside by this decision are ordered restored. See UCMJ arts. 58b(c) and 75(a).
                                          FOR  THECOURT:
                                           MALCOLMH.   H.SQUIRES,
                                          Clerk of Court
                                           Clerk of Court

Document Info

DocketNumber: ARMY 20121107

Filed Date: 7/22/2015

Precedential Status: Non-Precedential

Modified Date: 7/23/2015