UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, HERRING, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class JOSE M. MELENDEZ
United States Army, Appellant
ARMY 20140314
Headquarters, 1st Cavalry Division
Rebecca Connally, Military Judge
Colonel R. Tideman Penland, Jr., Staff Judge Advocate (pretrial)
Lieutenant Colonel Michael D. Jones, Acting Staff Judge Advocate (post-trial)
For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R.
Inkenbradt, JA; Captain Amanda R. McNeil, JA (on brief).
For Appellee: Major A.G. Courie, III, JA; Major Steven J. Collins, JA; Captain Tara
E. O’Brien, JA (on brief).
30 October 2014
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a special court-martial convicted appellant,
consistent with his pleas, of two specifications of attempting to sell military
property of a value more than $500, one specification of conspiracy to commit
larceny of military property of a value more than $500, one specification of larceny
military property of a value more than $500, and one specification of unlawful entry,
in violation of Articles 80, 81, 121, and 134 Uniform Code of Military Justice, 10
U.S.C. §§ 880, 881, 912, 934 (2012) [hereinafter UCMJ]. In accordance with the
pretrial agreement, the convening authority approved the findings and the adjudged
sentence of a bad-conduct discharge and confinement for three months.
This case is before us pursuant to Article 66, UCMJ. Appellant raises one
assignment of error, which merits discussion and relief.
MELENDEZ—ARMY 20140314
BACKGROUND
Appellant’s court-martial concluded on 23 April 2014. Defense counsel
received the record of trial for review on 26 August 2014 and completed review the
next day. The military judge authenticated the record of trial on 23 October 2014
after returning the record of trial to the court reporter to correct numerous errors.
The staff judge advocate signed his recommendation (SJAR) on 29 October 2014 and
served it in conjunction with the authenticated record of trial on appellant’s defense
counsel on 6 December 2014. The government received post-trial matters on behalf
of the appellant nine days later. The staff judge advocate signed the addendum on
22 December 2014 and the convening authority took action the same day. This court
received the record of trial on 20 February 2015.
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.
Id. at 142. Additionally, the record of trial should be docketed with this court
within thirty days of the convening authority’s action. Id. 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. See Moreno, 63 M.J. at 136.
Taking over 300 days to process appellant’s case from trial completion to
docketing at this court is presumptively unreasonable and violates both the standard
for timeliness from trial to initial action and initial action to docketing at this court.
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.
The post-trial processing time in appellant’s case is 243 days from sentence to
action. The government served defense counsel with the eighty-seven page record of
trial for review 125 days after the conclusion of appellant’s trial. The lack of any
delay on the part of the defense rests the dilatory post-trial processing at the feet of
the government. See Rule for Courts-Martial 1106(f)(5) and United States v.
Garman, 59 M.J. 677 (Army Ct. Crim. App. 2003). Another 61 days passed from
action to receipt by this court. The delay from trial to initial action is more than
double both the time where this court presumes unreasonable delay in post-trial
One other standard—timeliness of appellate review before this court—is not
relevant in appellant’s case. Moreno, 63 M.J. at 142-43.
2
MELENDEZ—ARMY 20140314
processing between sentence and action and what is expected for receipt of this
record of trial by this court. See Moreno, 63 M.J. at 142 (recognizing a presumption
of unreasonable delay in cases where action is not taken within 120 days of the
completion of trial and where the record of trial is not docketed at this court within
30 days of action). 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.
The explanation by the senior installation court reporter outlines several
reasons for the delay to include: heavy caseload, transcription back-ups, the military
judge’s corrections to the record, and operational deployments. 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). Operational deployments under certain circumstances
can justify a delay. United States v. Bauerbach, 55 M.J. 501, 507 (Army Ct. Crim.
App. 2001). There is no specific explanation provided by the government for the
delay in this court receiving the case. The reasons for the delay weigh in favor of
appellant.
The third Moreno factor weighs in favor of the appellant; he asserted his right
to speedy post-trial processing multiple times. 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 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 bad-conduct discharge
and confinement for two 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:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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