United States v. Private First Class RYAN J. DIAZ ( 2020 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class RYAN J. DIAZ
United States Army, Appellant
ARMY 20180556
Headquarters, Fort Campbell
Matthew A. Calarco, Military Judge
Colonel Andras M. Marton, Staff Judge Advocate (pretrial)
Colonel Laura J. Calese, Staff Judge Advocate (post -trial)
For Appellant: Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D.
Pond, JA; Major Kyle C. Sprague, JA; Captain Alexander N. Hess, JA (on brief and
reply brief)
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Captain Brian Jones, JA; Captain Christopher K. Wills, JA (on brief).
11 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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent .
FLEMING, Judge:
The government’s unexplained dilatory post-trial processing of appellant’s
case warrants reducing his sentence to confinement by 60 days. A military judge
sitting as a general court-martial convicted appellant, pursuant to his pleas, of one
specification of absence without leave (AWOL) terminated by apprehension, one
specification of AWOL, and one specification of escape from confinement, in
violation of Articles 86 and 95, Uniform Code of Military Justice, 10 U.S.C. §§ 886,
895 [UCMJ]. The military judge sentenced appellant to a bad-conduct discharge,
DIAZ—ARMY 20180556
confinement for 190 days, and reduction to the grade of E-1. The military judge
credited appellant with 139 days of credit against his sentence to confinement. 1
We review this case under Article 66, UCMJ. On appeal, appellant’s sole
assignment of error concerns the government’s dilatory post-trial processing.
Appellant asserts the government allowed 328 days to elapse between the
adjournment of his trial and the convening authority’s action. The actual delay
attributable to the government is 308 days. 2 As we discuss below, the government’s
unexplained and dilatory post-trial processing warrants relief under Article 66(c),
UCMJ.
BACKGROUND
After the adjournment of appellant’s trial, the government took over 70 days
to transcribe the 287-page transcript and over 120 days to authenticate the record of
trial (ROT). Appellant’s trial defense counsel submitted a request for speedy post -
trial processing within a month of authentication. Approximately two months after
appellant’s initial request for speedy post-trial processing, the Fort Campbell Office
of the Staff Judge Advocate (OSJA) continued to lack action, and appellant’s
counsel submitted a second request for speedy post -trial processing.
Almost three weeks after appellant’s second request, and over 100 days from
the authentication of the ROT, the government finally issued a staff judge advocate’s
recommendation (SJAR). The authenticated ROT and SJAR were served on
appellant almost nine months after the trial’s adjournment. Over another month
elapsed between the receipt of appellant’s post-trial matters and action by the
1
The promulgating order does not reflect appellant’s 139 days of confinement credit.
So far as appellant has not already received such credit, he shall be credited with
139 days against his sentence to confinement. See Army Reg. 27-10, Legal Services:
Military Justice, para. 5-32.a (11 May 2016); United States v. Arab, 55 M.J. 508,
510, n.2 (Army Ct. Crim. App. 2001). Beyond failing to reflect appellant’s
confinement credit, we also pause to note the promulgating order contained
numerous other errors requiring our correction.
2
The sentence was adjudged on 1 November 2018, and the convening authority took
action 328 days later, on 25 September 2019. Appellant requested and was granted a
20-day extension to submit his post-trial matters, from 29 July 2019 to 18 August
2019, in accordance with Article 60(b), UCMJ . Thus, after deducting appellant’s
20-day extension from the 328-day processing time, the government is responsible
for the remaining 308 days of delay. United States v. Banks, 75 M.J. 746, 751
(Army Ct. Crim. App. 2016).
2
DIAZ—ARMY 20180556
convening authority. The addendum to the SJAR did not offer any explanation for
the 308-day delay.
LAW AND DISCUSSION
This court has two distinct responsibilities in addressing post -trial delay.
United States v. Simon, 64 M.J. 205, 207 (C.A.A.F. 2006) (citing Toohey v. United
States, 60 M.J. 100, 103-04 (C.A.A.F. 2004)). First, as a matter of law, this court
reviews whether claims of excessive post -trial delay resulted in a due process
violation. Id. (citing U.S. Const. amend. V; Diaz v. Judge Advocate General of the
Navy, 59 M.J. 34, 38 (C.A.A.F. 2003)). Second, we may grant an appellant relief for
excessive post-trial delay using our broad authority of determining sentence
appropriateness under Article 66(c), UCMJ. Id. (citing United States v. Tardif, 57
M.J. 219, 225 (C.A.A.F. 2002)).
We review de novo whether appellant has been denied his due process right to
a speedy post-trial review. United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F
2006). A presumption of unreasonable post-trial delay exists when the convening
authority fails to take action within 120 days of completion of trial. Id. at 142. In
Toohey v. United States, our Superior Court adopted the following four-factor
balancing test from Barker v. Wingo, 407 U.S. 514, 530-32 (1972), which we employ
when a presumption of unreasonable post -trial delay exists, to determine whether the
post-trial delay constitutes a due process violation: “(1) length of the delay; (2)
reasons for the delay; (3) the appellant’s assertion of his right to a timely appeal;
and (4) prejudice to the appellant.” 60 M.J. at 102. In assessing the fourth factor of
prejudice, we consider three sub-factors: “(1) prevention of oppressive incarceration
pending appeal; (2) minimization of anxiety and concern of those convicted awaiting
the outcome of their appeals; and (3) limitation of the possibility that a convicted
person’s grounds for appeal, and his or her defenses in case of reversal and retrial,
might be impaired.” Moreno, 63 M.J. at 138-39 (quoting Rheuark v. Shaw, 628 F.2d
297, 303 n.8 (5th Cir. 1980)).
At bar, the first factor weighs in appellant’s favor, as over 300 days is
presumptively unreasonable. In the addendum, the staff judge advocate (SJA)
acknowledged the post-trial processing time exceeded the 120-day guideline.
However, the addendum does not provide any explanation for the delay. 3 The
3
We draw attention to the concurring opinion in United States v. Mack, emphasizing
the importance of ensuring accurate and timely post -trial processing, which is the
responsibility of all military justice p ractitioners. ARMY 20120247, 2013 CCA
LEXIS 1016, at *7 (Army Ct. Crim. App. 9 Dec. 2013) (summ. disp.) (“All
practitioners, especially staff judge advocates, must ensure that the rights of an
(continued . . .)
3
DIAZ—ARMY 20180556
addendum merely states, “I do not find that the Accused’s due pr ocess rights have
been violated. I do not find that he has been prejudiced. Therefore, I do not
recommend any relief.” Such a perfunctory and meager response to an accused’s
claim of a facially excessive post-trial delay is inexcusable. On appeal, the
government has not offered any additional justification for the post-trial delay, nor
does the record disclose any. Accordingly, the second factor weighs in appellant’s
favor.
The third factor also weighs in appellant’s favor as he twice asserted his right
to speedy post-trial processing. The SJA acknowledged these requests in the
addendum, but, again, offered no explanation for the failure to act on these
requests. 4 Of particular concern, over two months elapsed without any governmental
action between appellant’s first request for speedy post-trial processing and his
second request. After his second request, another 112 days elapsed until the
convening authority took action. Such a flagrant disregard of an appellant’s
demands for speedy post-trial review “[r]eflect[s] adversely on the United S tates
Army and the military justice system.” United States v. Carroll, 40 M.J. 554, 557
n.8 (A.C.M.R. 1994) (citation omitted).
Regarding the fourth factor, appellant alleges he was prejudiced by the delay
because he “[l]acked the documentation he needed as part of his post-release job
search as he endeavored to support his family.” Appellant made the same complaint
in his post-trial submissions to the convening authority. Interference with post -
military employment opportunities is a form of prejudice that warrants relief for
unreasonable post-trial delay. See United States v. Jones, 61 M.J. 80, 84 (C.A.A.F.
2005). However, appellant has not offered any documentation to support his claim
that he was offered employment that he could not accept due to his inability to
provide a DD-214. See, e.g., United States v. Allende, 66 M.J. 142, 145 (C.A.A.F.
2008) (no prejudice when appellant fails to provide any documentation from
prospective employers regarding employment practices or a valid reason for failin g
to do so). As such, the fourth factor weighs against appellant.
Absent the fourth factor weighing for appellant , we may find “a due process
violation only when, in balancing the other three [ Barker] factors, the delay is 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
(. . . continued)
accused are not compromised, and that the interests of the gov ernment are
protected.”).
4
We note the government, in its brief to this court, acknowledges and concedes the
first three factors weigh in appellant’s favor.
4