United States v. Specialist ANTHONY M. MANLEY ( 2015 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, HERRING, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist ANTHONY M. MANLEY
United States Army, Appellant
ARMY 20140381
Headquarters, United States Army Alaska
Douglas Watkins, Military Judge
Colonel Tyler J. Harder, Staff Judge Advocate (pretrial)
Colonel Erik L. Christiansen, Staff Judge Advocate (post-trial)
For Appellant: Colonel Kevin Boyle, JA; Major Amy Nieman, JA; Captain Brian D.
Andes, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Major
Diara Andres, JA USAR (on brief).
22 December 2015
---------------------------------
SUMMARY DISPOSITION
---------------------------------
Per Curiam:
A military judge sitting as a general court-martial, convicted appellant, in
accordance with his pleas, of two specifications of sexual assault of a child , in
violation of Article 120b, Uniform Code of Military Justice, 10 U.S.C. § 920b
(2012) [hereinafter UCMJ]. The military judge sentenced appellant to a
dishonorable discharge and confinement for twenty months. In accordance with the
pretrial agreement, the convening authority approved only eighteen months of
confinement but otherwise approved the findings and sentence as adjudged.
This case is before us pursuant to Article 66, UCMJ. Appellant raises one
assignment of error which merits discussion and relief.
MANLEY—ARMY 20140381
BACKGROUND
Appellant’s court-martial concluded 12 May 2014. On 30 June 2014, trial
defense counsel and trial counsel received the record of trial for review. Trial
counsel completed review on 2 July 2014 and trial defense counsel followed fourteen
days later. On 22 July 2014, the military judge authenticated the record of trial.
The staff judge advocate signed his recommendation (SJAR) on 24 September 2014.
Appellant received the authenticated record of trial and SJAR on 25 October 2014.
The government received post-trial matters on behalf of the appellant on 17
November 2014, however the record has no request for a twenty-day extension from
trial defense counsel pursuant to R.C.M. 1005(c)(1). The staff judge advocate
signed the addendum on 15 December 2014 and the convening authority took action
the same day.
LAW AND DISCUSSION
In United States v. Moreno, our superior court established timeliness
standards for various stages of the post-trial and appellate process. 63 M.J. 129,
142-43 (C.A.A.F. 2006). The Moreno standard applicable in this case is that
a convening authority should take action within 120 days after the trial is
completed. 1 Id. at 142. Failure to satisfy this standard 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. See Moreno, 63 M.J. at
136.
The post-trial processing time in appellant’s case is 204 days from sentence to
action. This delay is presumptively unreasonable. Id. at 142. In the face of this
lengthy delay, our next step is to apply and balance the four factors set out in
Barker, in order to determine whether appellant’s due process rights were violated.
Id. at 136.
Appellant’s trial defense counsel took fourteen days longer than the trial
counsel for trial transcript errata. The government served appellant with the record
of trial for review 166 days after the conclusion of appellant’s trial. Rule for
Courts-Martial 1106(f)(5) automatically grants defense ten days to submit post-trial
matters. Trial defense counsel submitted post-trial matters thirteen days after their
automatic due date. Therefore, defense is responsible for twenty-seven days of post-
trial processing, and the government’s processing time from trial to initial action is
1
Two other standard—timeliness of docketing with this court after initial action and
timeliness of appellate review before this court—are not relevant in appellant’s case.
Moreno, 63 M.J. at 142-43.
2
MANLEY—ARMY 20140381
177 days. See United States v. Garman, 59 M.J. 677 (Army Ct. Crim. App. 2003).
The delay from trial to initial action is fifty seven days more than where this court
presumes unreasonable delay in post-trial processing between sentence and action.
See Moreno, 63 M.J. at 142. This facially unreasonable delay triggers our review of
the remaining Moreno factors: reasons for the delay; timely assertion of the right to
speedy post-trial review; and prejudice. Id. at 135-36.
As to the second Moreno factor, the explanation by the chief of military
justice was a lack of personnel and experience in post-trial processing. Our superior
court has held that “personnel and administrative issues . . . are not legitimate
reasons justifying otherwise unreasonable post-trial delay.” United States v.
Arriaga, 70 M.J. 51, 57 (C.A.A.F. 2011). The reasons for the delay weigh in favor
of appellant.
The third Moreno factor weighs slightly in favor of the government, as the
appellant did not assert his right to speedy post-trial processing until 189 days after
sentencing.
Turning to the fourth Moreno factor, appellant fails to demonstrate prejudice.
Although we find no due process violation after consideration of the Moreno factors,
we review the appropriateness of the sentence in light of the unjustified dilatory
post-trial processing. UCMJ art. 66(c). See Moreno, 63 M.J. at 138-42; United
States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006); United States v. Tardif, 57 M.J.
219, 224 (C.A.A.F. 2002). After consideration of the entire record, we conclude
appellant’s case warrants relief in the form of a thirty-day reduction in confinement
under Article 66(c), UCMJ, for the unreasonable post-trial delay. See Tardif,
57 M.J. at 224.
CONCLUSION
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
and confinement for seventeen months. 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
FORTHE
THECOURT:
COURT:
MALCOLMH.
MALCOLM H.SQUIRES,
SQUIRES,JR.
JR.
ClerkofofCourt
Clerk Court
3