UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, D.C. KING, B.T. PALMER
Appellate Military Judges
UNITED STATES OF AMERICA
v.
MICHAEL A. WINES, JR.
MASTER-AT-ARMS THIRD CLASS (E-4), U.S. NAVY
NMCCA 201500005
GENERAL COURT-MARTIAL
Sentence Adjudged: 21 August 2014.
Military Judge: CAPT J.K. Waits, JAGC, USN.
Convening Authority: Commander, U.S. Naval Activities
Spain, U.S. Naval Station, Rota Spain.
Staff Judge Advocate's Recommendation: LT E.S. Nelson,
JAGC, USN.
For Appellant: CDR Ricardo Berry, JAGC, USN.
For Appellee: Maj Tracey Holtshirley, USMC; Capt Cory
Carver, USMC.
27 August 2015
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2
PER CURIAM:
A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of one
specification of committing a sexual act upon a child under the
age of 16 and one specification of committing lewd acts
(indecent language) on a child under the age of 16, both in
violation of Article 120b, Uniform Code of Military Justice,
10 U.S.C. § 920b. The appellant was sentenced to 45 months
confinement, reduction to pay grade E-1, and a dishonorable
discharge. In accordance with a pretrial agreement, the
convening authority (CA) suspended all confinement in excess of
24 months, approved the remaining sentence, and, except for the
punitive discharge, ordered the sentence executed.
The appellant’s sole assignment of error asserts he was
denied his post-trial right to a speedy trial due to a docketing
delay after the CA’s action, and seeks an unspecified day for
day reduction in confinement and/or setting aside his punitive
discharge under Articles 59(a) and 66(c), UCMJ.
Having reviewed the parties’ pleadings and the record of
trial, we are satisfied that no error materially prejudicial to
the substantial rights of the appellant occurred and have
similarly determined the findings and sentence are appropriate
under the circumstances of this case. Arts. 59(a) and 66(c),
UCMJ. We therefore affirm the findings and the approved
sentence.
Background
The appellant pled guilty at a general court-martial, held
at Naval Station Rota, Spain, to one specification of committing
a sexual act upon a 14-year-old child by engaging in sexual
intercourse with her, and one specification of committing lewd
acts, on divers occasions over several months, by intentionally
communicating indecent language to the same child. On 21 August
2014, the court imposed punishment, and the appellant, who had
not served any pretrial confinement or restraint, began serving
his confinement on the same day. See, DD Form 2707, Confinement
Order attached to the Results of Trial.
On 3 November 2014, the appellant submitted a request for
clemency, which the CA considered when he took his action on 25
November 2014, 96 days after sentence was announced. The case
was docketed before this Court on 7 January 2015, 43 days after
the CA’s action was signed.
Additional facts necessary for the resolution of the
appellant’s assignment of error are included below.
Post-Trial Delay
Whether an appellant has been deprived of his due process
right to a speedy appellate review is a question of law we
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review de novo. United States v. Allison, 63 M.J. 365, 370
(C.A.A.F. 2006). When such delays occur, claims of due process
violations caused by the delay are reviewed under the four-part
test laid out in Barker v. Wingo, 407 U.S. 514, 530 (1972) and
United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006). In
such an analysis, we balance the (1) length of delay; (2)
reasons for the delay; (3) appellant’s assertion of the right to
timely review and appeal; and (4) prejudice. Id. No one factor
is determinative and the court will decide whether each factor
favors the Government or the appellant. Id. at 136.
A due process analysis of post-trial delay begins with a
determination whether the delay in question is facially
unreasonable. Id. at 135-36. Presumptive unreasonable delay
exists when a record of trial is not docketed with the service
Court of Criminal Appeals within 30 days of the CA’s action.
Id. at 142. In this case, the length of delay between the CA’s
action and docketing with this court totaled 43 days. As such,
the delay is unreasonable on its face, triggering a full
Barker/Moreno analysis. See id.
The presumption of unreasonableness can be overcome by a
showing of legitimate, case-specific circumstances. Id. at 142-
43. Here, the length of the delay (the first factor) exceeded
the Moreno threshold by only 13 days. Although this weighs
slightly in the appellant’s favor, this is a mere fraction of
the delay noted by the Court of Appeals for the Armed Forces
when finding and granting relief in other post-trial delay
cases. Id. at 135 (1,688 days of post-trial delay); Allison,
63 M.J. at 366 (1,867 days of post-trial delay); United States
v. Jones, 61 M.J. 80, 82 (C.A.A.F. 2005) (363 days of post-trial
delay before the case was docketed with this court which
included 74 days after the CA signed his action, all on a record
of trial with 37 pages of transcription).
Several issues contributed to the delay (the second
factor). These include: the fact the CA signed his action in
Rota, Spain the day before the Thanksgiving Holiday stand-down
which prevented further administrative action, including
delivering the record to the post-trial review officer in
Naples, Italy, until 1 December 2014. Next, on 2 December 2014,
it was discovered the trial defense counsel had not signed for
the staff judge advocate’s recommendation and the record of
trial. At the time, the trial defense counsel was on temporary
duty in the United States and his signatures could not be
obtained until his return to Naples, Italy on 8 December 2014.
Finally, although the record of trial was delivered to the
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military post office on 10 December 2014, and was accepted for
United States Postal Service certified mail delivery on 11
December 2014, the record inexplicably did not arrive in the
United States (New York) until 2 January 2015, and did not
thereafter arrive at a local Naval (Anacostia) postal facility
until 6 January 2015, before being picked up, copied, and
docketed with this court on 7 January 2015. This delivery
transit time accounts for 27 of the 43 days of delay. Although
all these circumstances were in the Government’s control (date
of the CA’s signing, designation of the holiday routine,
geographic laydown of Naval forces and organizations in Europe,
trial defense counsel’s absence on official orders, and use of
the United States Postal Service), it appears all involved were
diligently and actively engaged in attempting to meet the Moreno
timelines. Accordingly, this factor does not weigh heavily
against the Government.
Next, this court looks at whether the appellant objected to
the delay or asserted his right to timely review (the third
factor). Until filing his appellate brief and assignment of
error, the appellant did not make a demand for speedy trial or
raise any post-trial processing concerns. Given this case was
only 13 days into the period of presumptive unreasonable delay,
and further given the lack of mechanisms to object to post-CA
action delay, this factor weighs neither in favor of nor against
the appellant.
When analyzing prejudice (the fourth factor), the court
should consider three interests in a prompt appeal: (1)
prevention of oppressive incarceration; (2) minimization of
anxiety and concern of those 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 by the delay. Moreno,
63 M.J. at 138-41. As noted in the appellant’s brief, he
asserts no substantive issues on the first and third interests
and we, similarly, find none. There is no evidence offered
indicating the appellant’s incarceration is oppressive nor is
there any evidence the 43-day period after the CA’s action has
in any way limited his grounds for appeal or impaired his
ability to prepare for a retrial if one was ordered.
The appellant does argue, however, that the second interest
(minimizing anxiety and concern awaiting the outcome of his
appeal) is triggered by the burdens he will face as a registered
sex offender. We, nevertheless, find an insufficient basis to
grant relief. The court in Moreno found prejudice because the
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post-trial delay required Moreno to register as a sex offender
upon his release and during the pendency of his attenuated
appeal. Id. at 140. In this case, although the appellant may
be unhappy at the prospect of eventual sex offender
registration, he is still in confinement. Accordingly, in
contrast to Moreno, the appellant will likely not face the
prospect of sex offender registration during the period his case
is still under appellate review. 1 For these reasons, we find no
Article 59, UCMJ, material prejudice related to any docketing
delay in his case and similarly conclude the findings and
sentence are appropriate under Article 66(c), UCMJ.
Conclusion
The findings and sentence are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
1
This reasoning does not imply this court’s belief that the second Moreno
interest is automatically triggered each time an appellant must register as a
sex offender before his/her appellate review is complete.
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