UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ, MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist WARREN D. O’BRYANT
United States Army, Appellant
ARMY 20110619
Headquarters, III Corps and Fort Hood
Gregory A. Gross, Military Judge
Colonel Stuart W. Risch, Staff Judge Advocate (pretrial & recommendation)
Lieutenant Colonel Craig E. Merutka, Acting Staff Judge Advocate (addendum)
For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E.
Gorini, JA; Captain Matthew M. Jones, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Captain Chad M. Fisher, JA;
Captain Ryan D. Pyles, JA (on brief).
24 July 2013
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SUMMARY DISPOSITION
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ALDYKIEWICZ, Judge:
A military judge sitting as a general court-martial convicted appellant,
contrary to his plea, of assault consummated by a battery in violation of Article 128,
Uniform Code of Military Justice, 10 U.S.C. § 928 (2006) [hereinafter UCMJ]. The
military judge sentenced appellant to a bad -conduct discharge, confinement for 165
days, and reduction to the grade of E–1. The convening authority approved the
adjudged sentence. 1
This case is before this court for review under Article 66, UCMJ. Appellant’s
sole assignment of error alleges that the post-trial processing of his case was
dilatory, thus warranting relief. We have considered the entire record and agree that
the post-trial processing delay was excessive and unreasonable, warranting relief.
1
The convening authority waived automatic forfeitures for a period of six months,
effective 1 August 2011.
O’BRYANT—ARMY 20110619
Appellant’s general court-martial was straightforward and uncomplicated.
Appellant and his wife were involved in an on-post domestic dispute which became
violent. Appellant grabbed his handgun and assaulted his wife , placing it in her
mouth as he straddled her prone body on their bedroom floor. She eventually fled
their home, contacted law enforcement authorities, and appellant was apprehended ,
tried, and convicted of the assault consummated by a battery. Trial was a one-day
contested court-martial ending on 18 July 2011 (Day 1). The 170-page record of
trial was not authenticated until 16 March 2012 (Day 243). After authentication, it
took the government an additional 84 days to take action (Day 327). 2 Appellant
complained of the delayed post-trial processing in his Rule for Courts -Martial 1105
submissions.
Claims of unreasonable post-trial delay are reviewed de novo. United States
v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2012) (citing United States v. Moreno, 63 M.J.
129, 135 (C.A.A.F. 2006)). Staff judge advocates are again “reminded of our higher
court’s expectation that ‘convening authorities, [and] reviewing authorities . . .
document reasons for delay.’” United States v. Arias, 72 M.J. 501, 505 (Army Ct.
Crim. App.) (quoting Moreno, 63 M.J. at 143). Such documentation should
accompany the record of trial upon dispatch to this court following action rather
than as attachments to government pleadings in opposition to Moreno requested
relief on appeal. See Office of the Clerk of Court for the U.S. Arm y Court of
Criminal Appeals, 2012 Post-Trial Handbook, para. 2-7 (directing staff judge
advocates to place a memorandum within the record of trial in order to explain
“unusual delays in the case.”). The former, at a minimum, indicates a conscientious
concern regarding the delayed post-trial processing of an appellant’s case and
creates a record on current and arguably more reliable data; the latter suffers from
the dangers associated with trying to reconstruct a timeline of activities months or
years after the fact. When received by this court, appellant’s record lacked any
explanation regarding the delayed post-trial processing of his case. A memorandum
for record and affidavit subsequently received as enclosures to the government’s
appellate brief indicate, inter alia, that the jurisdiction involved had both a heavy
case load and manpower issues. Nothing therein, however, justifies the government
taking 327 days, 296 if adjusted for defense delay, to act on a 170-page record.
The post-trial processing of appellant’s case was presumptively unreasonable,
exceeding 120-days from trial to action, thus triggering application of the four -
factor analysis articulated in Barker v. Wingo, 407 U.S. 514, 530 (1972). See United
States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). After application of Barker’s
four-factor analysis, (1) length of delay; (2) reasons for delay; (3) assertion of right
to timely review and appeal; and (4) prejudice, we find no due process violation of
appellant’s post-trial rights. While factors one through three favor appellant, factor
2
Thirty-one of the eighty-four days are attributable to defense delay in submitting
clemency matters under the provisions of Rule for Courts-Martial 1105.
2
O’BRYANT—ARMY 20110619
four does not; appellant suffered no prejudice as a result of the post -trial processing
delay. Furthermore, we find no due process violation in the absence of “Barker
prejudice.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). The post-
trial processing of appellant’s case was not “so egregious that tolerating it wo uld
adversely affect the public’s perception of the fairness and integrity of the military
justice system.” Id. Balancing the four factors, as well as any potential impact on
the public’s perception of the military justice system associated with the post -trial
processing of appellant’s case, we find appellant was not denied due process in the
post-trial processing of his case. However, even in the absence of actual prejudice,
this court is responsible to review the appropriateness of the sentence in light of the
unreasonable post-trial processing in this case. UCMJ art. 66(c); see Toohey, 63 M.J.
at 362–63; Moreno, 63 M.J. at 143; United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002); United States v. Ney, 68 M.J. 613, 616–17 (Army Ct. Crim. App.
2010). After doing so, we find a 15-day reduction in appellant’s sentence to
confinement is appropriate.
CONCLUSION
The findings of guilty are AFFIRMED. After considering the entire record ,
the court affirms only so much of the sentence as provides for a bad -conduct
discharge, confinement for 150 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).
Senior Judge KERN and Judge MARTIN concur.
FOR THE COURT:
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM
Clerk of Court H. SQUIRES, JR.
Clerk of Court
3