UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, HAIGHT, and WEIS 1
Appellate Military Judges
UNITED STATES, Appellee
v.
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.
1
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
BACKGROUND
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.
DISCUSSION
In his lone assigned error, appellant alleges:
THE DILATORY POST-TRIAL PROCESSING OF
APPELLANT'S CASE WARRANTS RELIEF BECAUSE
IT TOOK 441 DAYS FROM SENTENCE TO ACTION IN
A CASE WHERE THE RECORD OF TRIAL WAS ONLY
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
2
Appellant also personally raises three issues pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), none of which merits discussion or relief.
2
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.
3
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.
4
(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.
3
YELLETS—ARMY 20121107
Tardif, 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
paragraph.
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,
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).
FORTHE
FOR THECOURT:
COURT:
MALCOLM
MALCOLMH. H.SQUIRES,
SQUIRES,JR.
JR.
Clerk of Court
Clerk of Court
4