United States v. Simmons

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________

No. ACM 39342 (f rev)
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UNITED STATES
Appellee
v.
Jerard SIMMONS
Senior Airman (E-4), U.S. Air Force, Appellant
________________________

Appeal from the United States Air Force Trial Judiciary
Upon further review
Decided 2 October 2020
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Military Judge: Patricia A. Gruen.
Approved sentence: Dishonorable discharge, confinement for 12 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 14 July 2017 by GCM convened at Joint Base Langley-Eustis,
Virginia.
For Appellant: Major Mark J. Schwartz, USAF.
For Appellee: Major Peter F. Kellett, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, LEWIS, and KEY, Appellate Military Judges.
Chief Judge J. JOHNSON delivered the opinion of the court, in which
Senior Judge LEWIS and Judge KEY joined.
________________________

This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________

J. JOHNSON, Chief Judge:
Appellant’s case is before this court for the second time. A general court-
martial composed of officer members convicted Appellant, contrary to his pleas,
 United States v. Simmons, No. ACM 39342 (f rev)

of four specifications of sexual assault of a child, one specification of extortion,
and one specification of producing child pornography in violation of Articles
120b, 127, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
920b, 927, 934. 1 The convening authority approved the adjudged sentence of a
dishonorable discharge, confinement for 12 years, forfeiture of all pay and al-
lowances, and reduction to the grade of E-1.
Upon our initial review, we found Appellant was not entitled to relief with
regard to the seven issues he raised; however, we found that a new post-trial
process and action were required due to errors in the staff judge advocate’s
recommendation (SJAR) to the convening authority. United States v. Simmons,
No. ACM 39342, 2019 CCA LEXIS 156 (A.F. Ct. Crim. App. 9 Apr. 2019) (un-
pub. op.). Accordingly, we set aside the convening authority’s action and re-
turned the record of trial to The Judge Advocate General for remand to the
convening authority. Id. at *57. On remand, after receiving additional clem-
ency submissions from Appellant, the convening authority again approved the
adjudged sentence.
Appellant now raises a single issue: whether relief is warranted due to de-
lays in the post-trial processing of his case. We find modest sentence relief is
warranted, and take appropriate action in our decretal paragraph.

I. BACKGROUND
This court issued its prior opinion in Appellant’s case on 9 April 2019. On
7 June 2019, the record was returned to the convening authority after the Gov-
ernment declined to seek review of this court’s prior opinion at the United
States Court of Appeals for the Armed Forces (CAAF) within 60 days. See
C.A.A.F. R. 22(b)(3). A new SJAR was signed 13 June 2019 and served on Ap-
pellant’s newly assigned area defense counsel on 24 June 2019. On 1 July 2019,
Appellant’s counsel requested and was granted an extension to file Appellant’s
clemency materials. On 26 July 2019, Appellant submitted his clemency peti-
tion. The staff judge advocate signed the addendum to the SJAR on 1 August
2019, and the convening authority took action on the same day.

1 All references in this opinion to the punitive articles of the Uniform Code of Military
Justice (UCMJ) are to the Manual for Courts-Martial, United States (2012 ed.). All
other references to the UCMJ are to the Manual for Courts-Martial, United States
(2016 ed.).

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According to a sworn declaration from JS, 2 the Chief of Appellate Records
for the Air Force Legal Operations Agency’s Military Justice Division
(AFLOA/JAJM), the new post-trial documents arrived by mail at Joint Base
Andrews on 19 August 2019, and were “received by AFLOA/JAJM sometime
later that week.” However, JS was personally unaware of their arrival until
she contacted the convening authority’s legal office on 3 October 2019 to in-
quire about the status of the case. Upon reviewing the material, JS noticed
that certain documents were missing, and she notified the legal office on 7 Oc-
tober 2019. JS received the missing documents on 8 October 2019 and returned
the original record of trial to this court on the same day.

II. DISCUSSION
A. Law
“We review de novo claims that an appellant has been denied the due pro-
cess right to a speedy post-trial review and appeal.” United States v. Moreno,
63 M.J. 129, 135 (C.A.A.F. 2006) (citing United States v. Rodriguez, 60 M.J.
239, 246 (C.A.A.F. 2004); United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F.
2003)). “[C]onvicted servicemembers have a due process right to timely review
and appeal of courts-martial convictions.” Id. at 135 (citing Toohey v. United
States, 60 M.J. 100, 102 (C.A.A.F. 2004); Diaz v. JAG of the Navy, 59 M.J. 34,
37–38 (C.A.A.F. 2006)). In Moreno, the CAAF established a presumption of fa-
cially unreasonable delay when the convening authority does not take action
within 120 days of sentencing, when the record of trial is not docketed with the
Court of Criminal Appeals within 30 days of action, or when the Court of Crim-
inal Appeals does not render a decision within 18 months of docketing. Id. at
142. Where there is such a delay, we examine the four factors set forth in
Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the delay; (2) the
reasons for the delay; (3) the appellant’s assertion of the right to timely review

2 In United States v. Jessie, the United States Court of Appeals for the Armed Forces
(CAAF) explained the general rule “that the [Courts of Criminal Appeals] may not
consider anything outside of the ‘entire record’ when reviewing a sentence under Arti-
cle 66(c), UCMJ.” 79 M.J. 437, 441 (C.A.A.F. 2020) (quoting United States v. Fagnan,
30 C.M.R. 192 (C.M.A. 1961)) (additional citation omitted). The post-trial delay at issue
is evident in the “entire record,” and therefore properly before us for review. See Jessie,
79 M.J. at 440. However, the CAAF also recognized that “some [of its] precedents have
allowed the [Courts of Criminal Appeals] to supplement the record when deciding is-
sues that are raised by materials in the record,” specifically with affidavits or hearings
ordered pursuant to United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967) (per curiam).
Jessie, 79 M.J. at 442. In Jessie, the CAAF declined to disturb this line of precedent.
Id. at 444. Accordingly, we understand Jessie to permit our review of JS’s declaration
regarding the post-trial delay.

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and appeal; and (4) prejudice [to the appellant].” Moreno, 63 M.J. at 135 (citing
United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); Toohey, 60 M.J. at 102).
“No single factor is required for finding a due process violation and the absence
of a given factor will not prevent such a finding.” Id. at 136 (citing Barker, 407
U.S. at 533). The CAAF identified three types of cognizable prejudice for pur-
poses of an appellant’s due process right to timely post-trial review: (1) oppres-
sive incarceration; (2) “particularized” anxiety and concern “that is distin-
guishable from the normal anxiety experienced by prisoners awaiting an ap-
pellate decision;” and (3) impairment of the appellant’s ability to present a de-
fense at a rehearing. Id. at 138–40 (citations omitted).
In United States v. Tardif, the CAAF recognized that “a Court of Criminal
Appeals has authority under Article 66(c), [UCMJ, 10 U.S.C. § 866(c)] to grant
relief for excessive post-trial delay without a showing of ‘actual prejudice’
within the meaning of Article 59(a), [UCMJ, 10 U.S.C. § 859(a)] if it deems
relief appropriate under the circumstances.” 57 M.J. 219, 224 (C.A.A.F. 2002)
(citation omitted). “[I]n addition to its determination that no legal error oc-
curred within the meaning of Article 59(a), the [Court of Criminal Appeals]
was required to determine what findings and sentence ‘should be approved,’
based on all of the facts and circumstances reflected in the record, including
the unexplained and unreasonable post-trial delay.” Id. In United States v.
Gay, this court identified six factors to consider in determining whether Tardif
relief is appropriate for post-trial delay that is facially unreasonable yet does
not amount to a due process violation under Moreno and Barker:
1. How long did the delay exceed the standards set forth in
[Moreno]?
2. What reasons, if any, has the government set forth for the de-
lay? Is there any evidence of bad faith or gross indifference to
the overall post-trial processing of this case?
3. Keeping in mind that our goal under Tardif is not to analyze
for prejudice, is there nonetheless some evidence of harm (either
to the appellant or institutionally) caused by the delay?
4. Has the delay lessened the disciplinary effect of any particular
aspect of the sentence, and is relief consistent with the dual
goals of justice and good order and discipline?
5. Is there any evidence of institutional neglect concerning
timely post-trial processing, either across the service or at a par-
ticular installation?
6. Given the passage of time, can this court provide meaningful
relief in this particular situation?

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74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016).
“We consider no single factor dispositive, and a given case may reveal other
appropriate considerations for this court in deciding whether post-trial delay
has rendered an appellant’s sentence inappropriate.” Id. (footnote omitted).
B. Analysis
Focusing on the 68 days that elapsed between the convening authority’s
new action on 1 August 2019 and the return of the record of trial to this court
on 8 October 2019, Appellant contends this court should set aside his dishon-
orable discharge due to unreasonable post-trial delay, either for a violation of
his due process rights under Moreno or as a matter of sentence appropriateness
under Tardif. The Government opposes any relief. Under the particular cir-
cumstances of this case, we find sentence relief under Tardif is appropriate.
1. Moreno
First, we consider whether Appellant’s due process rights were violated in
light of Moreno. The 68 days that elapsed between action and docketing ex-
ceeded the 30-day Moreno standard for a facially unreasonable delay. Accord-
ingly, we have considered the four Barker factors in light of all of the circum-
stances of the case.
a. Length of Delay
We recognize that, for purposes of due process analysis, the length of the
delay “is to some extent a triggering mechanism” that initiates the Barker
analysis. United States v. Cossio, 64 M.J. 254, 257 (C.A.A.F. 2007) (internal
quotation marks omitted) (quoting United States v. Smith, 94 F.3d 204, 208–
09 (6th Cir. 1996)). However, the length of the delay is also a factor in the
analysis in its own right, and logically a longer facially unreasonable delay
would tend to weigh more heavily than a shorter facially unreasonable delay.
In this case, the delay exceeded the 30-day Moreno standard by 38 days, a sub-
stantial violation. Accordingly, we find the length of delay weighs substantially
in Appellant’s favor.
b. Reasons for Delay
According to JS’s declaration, the new action and related documents ar-
rived in the mail at Joint Base Andrews on Monday, 19 August 2019, and were
delivered to AFLOA/JAJM sometime later that week. The only reason given
for the delay in docketing the record from that point until JS contacted the
convening authority’s legal office on 3 October 2019 is that JS was “unaware
that the documents had arrived.” Although we appreciate the declarant’s can-
dor, no further explanation is given for this breakdown in communication, and
the Government does not attempt to justify the delay. Accordingly, although

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there is no indication of intentional delay, the reasons for the delay weigh sol-
idly in Appellant’s favor.
c. Demand for Speedy Post-Trial Review
Appellant acknowledges his first assertion of his right to timely review
came in his assignment of error on the instant appeal. However, we note that
the unreasonable delay occurred late in the process, and that Appellant filed
his assignment of error (and demand for speedy review) on 3 December 2019,
within two months of the record being redocketed with this court. Accordingly,
we weigh this factor in the Government’s favor, but only moderately.
d. Prejudice
The Government contends Appellant has failed to demonstrate any of the
forms of cognizable prejudice the CAAF identified in Moreno. See 63 M.J. at
138–40 (citations omitted). We agree. Notably, Appellant’s brief fails to identify
how the delay has resulted in either oppressive incarceration, particularized
anxiety and concern, or impairment to his ability to defend himself at a rehear-
ing. Nor can we discern such prejudice. Where, as in this case, the appellant
has not prevailed on the substantive grounds of his appeal, there is no oppres-
sive incarceration. Id. at 139. Similarly, where Appellant’s substantive appeal
fails, his ability to present a defense at a rehearing is not impaired. See id. at
140. Moreover, Appellant has not indicated particularized anxiety or concern
qualitatively different from that experienced by other appellants awaiting ap-
pellate review. See id.
e. Conclusion with Respect to Due Process
Where there is no qualifying prejudice from the delay, there is no due pro-
cess violation unless the delay is so egregious as to “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). Considering the Barker fac-
tors together and the totality of the circumstances, the 68 days that elapsed
between action and docketing, although significant and unreasonable, was not
so egregious as to undermine public confidence in the military justice system.
Accordingly, we do not find a violation of Appellant’s due process right to timely
post-trial and appellate review.
2. Tardif and Gay
Next we undertake the separate analysis of whether sentence relief is war-
ranted in light of Tardif. This involves consideration of the six factors identi-
fied in Gay which are distinct from, although related to, the Barker factors and
Moreno—keeping in mind that no single factor is dispositive, and other consid-
erations may be appropriate in a particular case. Gay, 74 M.J. at 744.

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a. Length of Delay in Excess of Moreno Standard
As described above, the delay between action and docketing exceeded the
30-day Moreno standard by 38 days. This is a significant violation of the stand-
ard and weighs in favor of granting relief.
b. Reasons for Delay
As described above, the Government does not attempt to justify the delay,
which it attributes to “neglect.” We acknowledge there is no evidence of bad
faith, and that eventually JS inquired about the status of the case—although
not until more than two months after the convening authority took action, and
after the post-trial paperwork had apparently been overlooked for more than a
month. We are also mindful of our superior court’s admonition that “delay in
the administrative handling and forwarding of the record of trial and related
documents to an appellate court [ ] is the least defensible of all [post-trial de-
lays] and worthy of the least patience.” United States v. Dunbar, 31 M.J. 70,
73 (C.M.A. 1990). Accordingly, we find the reasons for the delay also weigh in
favor of relief.
c. “Some Evidence of Harm”
In Gay, this court explained that evidence of either harm to the appellant
or “institutional[ ]” harm could weigh in favor of relief. 74 M.J. at 744. This
factor is not simply a reanalysis of the three very particular forms of prejudice
the CAAF articulated in Moreno. Indeed, the premise of Tardif relief is that
sentence relief under Article 66(c), UCMJ, may be appropriate even in the ab-
sence of any material prejudice to an appellant’s substantial rights. 57 M.J. at
224; cf. Gay, 74 M.J. at 744 (“We consider no single factor dispositive . . . .”).
Therefore, applying a more expansive view of harm resulting from the 38-day
delay, we do perceive some amount of harm to Appellant in this case.
Appellant vigorously litigated the charges against him at trial, and he vig-
orously litigated his convictions on appeal at this court. Although we found
Appellant was not entitled to relief on the seven issues he raised on his initial
appeal, he has the right to seek further review at the CAAF. See 10 U.S.C. §
867(a), (b). However, that right was delayed due to substantial errors in the
original SJAR which required a new post-trial process and convening authority
action. The additional unreasonable post-trial delay in this case has further
delayed Appellant’s opportunity to seek review at our superior court. Although
relief at the CAAF is far from assured, every day that passes while Appellant
waits under his sentence to confinement incrementally decreases the practical
value of his right to appeal. We recognize that the post-trial and appellate pro-
cess inevitably takes time, and that it is very possible Appellant will ultimately
receive no relief from further appeals. However, under the particular circum-
stances of this case, where admitted government neglect compounded delays

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caused by earlier government errors in the post-trial process, we discern “some
evidence of harm” to Appellant’s rights and interests. Gay, 74 M.J. at 744. Ac-
cordingly, we weigh this factor slightly in Appellant’s favor.
d. Lessened Disciplinary Effect/Consistency with Justice and
Good Order and Discipline
The fourth Gay factor merges two considerations: whether “the delay [has]
lessened the disciplinary effect of any particular aspect of the sentence, and
[whether] relief is consistent with the dual goals of justice and good order and
discipline.” Id. On one hand, we do not perceive how the delay has lessened the
disciplinary effect of Appellant’s sentence. On 14 July 2017, Appellant was sen-
tenced to be confined for 12 years. We presume Appellant’s disciplinary cir-
cumstances have not changed as a result of the delay between action and dock-
eting, as we have no evidence to the contrary. On the other hand, we find that
under the circumstances of this case, granting modest sentence relief is con-
sistent with both justice and the maintenance of good order and discipline. Ac-
cordingly, we find this factor does not favor granting relief or denying relief.
e. Evidence of Institutional Neglect
Although the Government attributes the unreasonable delay in this case to
“neglect,” we do not find evidence of “institutional neglect.” Appellant has not
drawn our attention to similar lapses at AFLOA/JAJM, nor are we familiar
with such incidents from other cases. The incident in Appellant’s case is con-
cerning, but we note that eventually JS was prompted to inquire about the
status of the case, so there is some evidence of institutional oversight of the
process. Accordingly, we find this factor weighs against granting relief.
f. Meaningful Relief
The last Gay factor considers whether this court can provide meaningful
relief in this situation, given the passage of time. In light of Appellant’s lengthy
term of confinement, we find that we can—a modest credit against Appellant’s
term of confinement can provide a concrete benefit to Appellant that is propor-
tional to the error in this case. Accordingly, we weigh this factor in favor of
granting relief.
g. Conclusion with Respect to Tardif Relief
Balancing the Gay factors together, in light of the totality of the circum-
stances in this case, we find modest sentence relief in accordance with Tardif
is warranted.
3. Relief
The remaining question is what form that relief should take. We find Ap-
pellant’s suggestion that we disapprove his dishonorable discharge entirely

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disproportionate to the circumstances. On the other hand, mitigating the re-
duction in grade would be largely symbolic in Appellant’s case and may provide
Appellant little in the way of meaningful relief, while also doing little to inspire
greater vigilance on the Government’s part. Modifying Appellant’s forfeitures
also seems ill-suited to the circumstances.
Accordingly, we find a small reduction in Appellant’s term of confinement
to be appropriate. We considered a day-for-day reduction in Appellant’s sen-
tence for every day the Government exceeded the 30-day Moreno standard;
that is, a 38-day reduction in Appellant’s term of confinement. However, we
conclude that is more relief than is warranted under the circumstances. We
are mindful that the post-trial delay in this case has not lessened the severity
of the offenses for which Appellant was convicted. Moreover, in our prior opin-
ion we determined Appellant is not otherwise entitled to relief from his convic-
tions or sentence, and his prospects for securing relief at the CAAF are uncer-
tain and speculative. We conclude that a ten-day credit against Appellant’s
term of confinement is appropriate under the circumstances, and we take ap-
propriate action in our decretal paragraph.

III. CONCLUSION
We affirm only so much of the sentence as provides for: a dishonorable dis-
charge; confinement for 11 years, 11 months, and 20 days; forfeiture of all pay
and allowances; and reduction to the grade of E-1. The approved findings and
sentence, as modified, are correct in law and fact, and no further error materi-
ally prejudicial to the substantial rights of Appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved find-
ings and sentence, as modified, are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE
Clerk of the Court

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