United States v. Captain ARMANDO PEREZ ( 2020 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KRIMBILL, BROOKHART, and LEVIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Captain ARMANDO PEREZ
United States Army, Appellant
ARMY 20180578
Headquarters, National Training Center and Fort Irwin
Michael S. Devine and Timothy P. Hayes, Jr., Military Judges
Lieutenant Colonel Philip M. Staten, Staff Judge Advocate
For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Angela D. Swilley,
JA; Major Robert Feldmeier, JA (on brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Dustin B. Myrie, JA; Major Lauryn D. Carr, JA (on brief).
28 May 2020
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SUMMARY DISPOSITION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
LEVIN, Judge:
On 24 October 2018, a military judge sitting as a general court-martial
convicted appellant, pursuant to his pleas, of one specification of making a false
official statement and one specification of fraternization, in violation of Articles 107
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 907 and 934 [UCMJ]. The
military judge sentenced appellant to a dismissal, confinement for thirty days,
restriction to the limits of Fort Irwin for an additional thirty days, and a reprimand.
The convening authority approved only so much of the sentence as provides for a
dismissal, confinement for thirty days, and a reprimand.
On appeal before this court, appellant raises one assignment of error.
Specifically, appellant asserts that the post-trial delay between his sentencing and
the convening authority’s action warrants relief. We disagree.
PEREZ—ARMY 20180578
BACKGROUND
Appellant’s court-martial adjourned on 24 October 2018. On 24 July 2019,
273 days later, the convening authority took action. This period includes an initial
140 days for the government to transcribe the 627-page record of trial. The record
of trial was delivered to the military judge fifteen days thereafter. The military
judge authenticated the record eighty-three days later. Another nineteen days passed
before the Staff Judge Advocate completed the post-trial recommendation (SJAR).
The convening authority took action sixteen days later.
LAW AND DISCUSSION
Given the facially unreasonable length of delay, addressed below, we review
this post-trial due process violation claim de novo, balancing the four factors set out
in Barker v. Wingo, 407 U.S. 514, 530 (1972): (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. United States v. Moreno, 63 M.J. 129, 136-41 (C.A.A.F.
2006).
The first factor weighs in favor of appellant, in that the length of delay from
the completion of trial to the convening authority’s action is facially unreasonable.
Moreno established time standards for post-trial processing and review, the violation
of which gives rise to a presumption of unreasonable delay, including a standard of
120 days from completion of trial to the convening authority’s action. Id. at 142.
Here, 273 days elapsed between those two events, longer than the Moreno standard.
The second factor also weighs in favor of appellant. Under the second factor,
we look at the government’s responsibility for any delay, as well as any legitimate
reasons for the delay, including those attributable to an appellant. In its brief, the
government concedes that its reason for delay is inadequate under the Moreno
analysis.
With regard to the third factor, this court is required to examine whether
appellant objected to the delay in any way or otherwise asserted his right to a timely
review. Again, this factor weighs in favor of appellant, who demanded speedy post-
trial processing after the 120-day period elapsed.
The fourth factor, however, weighs heavily in favor of the government.
Appellant has not demonstrated that he suffered any prejudice whatsoever. Nor do
we find that 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). In
fact, appellant arguably benefited from the delay, in that the convening authority
granted his request for a deferment of automatic forfeitures from the effective date
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PEREZ-ARMY 20180578
of the sentence until the date of action. Consequently, appellant received pay and
allowances for a longer period than he would have otherwise been entitled to receive
them.
Weighing all of the above, we find no due process violation in the post-trial
processing of the appellant's court-martial. This court recognizes that even in the
absence of actual prejudice from unreasonable post-trial processing, we are still
authorized to grant relief for excessive delay in our assessment of the
appropriateness of appellant's sentence pursuant to Article 66, UCMJ. See United
States v. Tardiff, 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, the delay of 273 days to prepare
the 627-page record of trial is not so excessive that it warrants relief.
CONCLUSION
Upon consideration of the entire record, the findings of guilty and the
sentence are AFFIRMED.
Chief Judge KRIMBILL and Senior Judge BROOKHART concur.
FOR THE COURT:
Chief Deputy Clerk of Court
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