UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, 1 HAIGHT, and ALMANZA
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 JOSH P. BERGERON
United States Army, Appellant
ARMY 20130170
Headquarters, Fort Carson
Timothy Grammel, Military Judge
Colonel John S.T. Irgens, Staff Judge Advocate (pretrial and recommendation)
Lieutenant Colonel Stephanie D. Sanderson, Staff Judge Advocate (addendum)
For Appellant: Colonel Kevin Boyle, JA; Major Yolanda McCray Jones, JA; Captain
Robert H. Meek III, JA (on brief).
For Appellee: Major A.G. Courie III, JA; Major Steven J. Collins, JA (on brief).
24 August 2015
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SUMMARY DISPOSITION
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ALMANZA, Judge:
A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of six specifications of failure to repair, six specifications
of absence without leave, two specifications of willful disobedience of a superior
noncommissioned officer, one specification of disrespect to a superior
noncommissioned officer, two specifications of selling military property of a value
more than $500.00, one specification of larceny of military property of a value more
than $500.00, and one specification of housebreaking, in violation of Articles 86, 91,
108, 121, and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 891, 908,
921, and 930 (2006; 2012) [hereinafter UCMJ]. 2 The convening authority approved
1
Senior Judge Cook took action in this case before his retirement.
2
The accused pleaded not guilty to one specification of disrespect to a superior
noncommissioned officer, in violation of Article 91, UCMJ. This specification was
dismissed by the military judge after pleas and before findings.
BERGERON—ARMY 20130170
the adjudged sentence of a bad-conduct discharge, confinement for eighteen months,
and forfeiture of all pay and allowances. Appellant was credited with 188 days
against the sentence to confinement.
This case is before us pursuant to Article 66, UCMJ. Appellant raises two
assignments of error; the first merits discussion and relief, while the second is moot
to the extent it is not meritless. 3 Appellant also raises several matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982); all of which merit neither
discussion nor relief.
BACKGROUND
Appellant’s trial concluded on 25 February 2013. The record of trial was
authenticated by the military judge on 7 May 2013. The staff judge advocate signed
his post-trial recommendation on 15 May 2013 and appellant submitted his post-trial
matters pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 1105 on 28 August
2013. 4 Action was taken by the convening authority on 19 September 2013.
However, the case was not docketed with this court until 13 January 2014, 322 days
after appellant’s trial was completed and almost four months after the convening
authority’s action.
Citing a memorandum 5 submitted to this court by the Fort Carson Chief of
Military Justice, the government states the post-trial processing delay in this case is
due to several factors, including: (1) the receipt of R.C.M. 1105 submissions in three
other cases within the same month, September 2013, that the government was
preparing this case for action by the convening authority; (2) the receipt of five
additional RCM 1105 submissions between 24 September and 8 October 2013; and
3
Appellant’s second assignment of error is that the record of trial is incomplete as it
lacks assumption of command orders for the convening authority who signed the
action, and that he signed it as the “Senior Commander,” a position not recognized
by Rule for Courts-Martial 1107(a). To the extent this assignment of error states the
record of trial is incomplete, it is moot because the government has submitted the
appropriate assumption of command orders. See Government Appellate Exhibit 2.
To the extent this assignment of error states the convening authority signed the
action using the improper title, it is without merit.
4
Appellant’s counsel originally submitted his R.C.M. 1105 matters via memorandum
dated 22 July 2013. That memorandum, however, listed two enclosures, neither of
which were attached to the memorandum. When asked if he would be submitting the
enclosures, on 28 August 2013 appellant’s counsel stated via email that the
clemency request should be submitted “as is,” i.e., without the two enclosures.
5
Government Appellate Exhibit 1.
2
BERGERON—ARMY 20130170
(3) the effects of the October 2013 government shutdown, which caused the
government’s post-trial specialist to be out of the office from 1 October to 4 October
2013.
LAW AND DISCUSSION
Appellant’s first assigned error states:
WHETHER THE EXCESSIVE POST-TRIAL DELAY IN
THE GOVERNMENT’S PROCESSING OF
APPELLANT'S COURT-MARTIAL RECORD
WARRANTS GRANTING APPELLANT RELIEF UNDER
UNITED STATES V. BAUERBACH.
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). Specifically, the record of trial should be docketed with
this court within thirty days of the convening authority’s action. Id. 6 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. Moreno, 63 M.J. at 142.
The delay of 119 days between the convening authority’s action and the
docketing of this case with this court is presumptively unreasonable. Id. 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.
As for the first factor, the length of the delay, 119 days far exceeds the 30-day
presumption of unreasonableness. Id. at 142. This factor thus favors appellant. As
for the second factor, reasons for the delay, the government’s explanation is
insufficient to overcome the presumption. Id. at 136. The convening authority
signed the action on 19 September 2013 and this case was docketed with this court
on 13 January 2014. The stated reasons for the delay in Government Appellate
Exhibit 1 concern only the months of September and October 2013. Even fully
crediting the government’s explanation, the delay between the convening authority’s
action and the docketing of this case with this court is far more than Moreno’s
6
We need not address two other standards—processing time from trial to convening
authority action and timeliness of appellate review before this court—because any
issues related to them merit neither discussion nor relief in appellant’s case.
Moreno, 63 M.J. at 142-43.
3
BERGERON—ARMY 20130170
standard of 30 days. Accordingly, despite the government’s explanation, the second
factor favors appellant.
We find the third factor, assertion of the right to speedy post-trial processing,
cannot be practically applied to a delay between the convening authority’s action
and the docketing of a case with this court. Id. at 138. As we stated in United
States v. Rohrer, ARMY 20120526, 2014 CCA LEXIS 583, *4 (Army Ct. Crim. App.
31 July 2014) (summ. disp.), “we are unable to envision how or why appellant or his
attorney would have had any reason or responsibility to continue monitoring the
government’s progress in mailing the record of trial to this court once action was
completed.” As a result, this factor simply does not apply to the facts of this case.
We find the final Barker factor, prejudice, does not favor appellant. Id. at
138-41. Appellant has neither alleged nor established any prejudice before this
court as a result of the government’s delay in docketing his case with this court.
Moreover, after reviewing the three prejudice sub-factors 7 found in Moreno, we also
find no prejudice.
In cases where there is no finding of Barker prejudice, however, we can still
find a due process violation when “the delay 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). Taking 119 days to send this court a three volume record of trial has that
harmful effect. Thus, we will grant relief in our decretal paragraph.
CONCLUSION
The findings of guilty are AFFIRMED. After considering the entire record,
the court AFFIRMS only so much of the approved sentence as provides for a bad-
conduct discharge and confinement for seventeen (17) 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).
Senior Judge COOK and Judge HAIGHT concur.
7
(1) Oppressive incarceration pending appeal; (2) Particularized anxiety and
concern; and (3) Impairment of ability to present a defense at rehearing. Id. at 138-
41.
4
BERGERON—ARMY 20130170
FOR
FORTHE
THECOURT:
COURT:
MALCOLMH.
MALCOLM H.SQUIRES,
SQUIRES,JR.
JR.
ClerkofofCourt
Clerk Court
5