UNITED STATES, Appellee
v.
George A. CANCHOLA Jr., Lance Corporal
U.S. Marine Corps, Appellant
No. 06-0902
Crim. App. No. 200500538
United States Court of Appeals for the Armed Forces
Decided January 4, 2007
PER CURIAM
STUCKY and RYAN, JJ., did not participate.
Counsel
For Appellant: Lieutenant Richard H. McWilliams, JAGC, USN.
For Appellee: Commander P. C. LeBlanc, JAGC, USN, and Major
Brian K. Keller, USMC.
Military Judge: P.J. Betz, Jr.
This opinion is subject to revision before final publication.
United States v. Canchola, No. 06-0902/MC
PER CURIAM:
At a special court-martial Lance Corporal George A.
Canchola, Jr., entered guilty pleas to dereliction of duty and
five specifications alleging wrongful use of a controlled
substance in violation of Articles 92 and 112a, Uniform Code of
Military Justice, 10 U.S.C. §§ 892, 912a (2000). The military
judge sentenced him to a bad-conduct discharge, confinement for
130 days, and reduction to the grade of E-1. The focus of
Canchola’s Petition for Grant of Review is timely post-trial
processing. Specifically, of the 1,263 days between sentencing
and the decision of the United States Navy-Marine Corps Court of
Criminal Appeals, it took 783 days before the convening
authority acted upon the record of trial. Canchola asserts that
the Court of Criminal Appeals erred in finding he was not
denied due process as a result of the post-trial delay in his
case. Finding good cause, we grant review to determine whether
Canchola was denied his due process right to speedy post-trial
review.1
1
We grant review of the following issue raised by appellate
defense counsel:
WHETHER THE LOWER COURT ERRED IN ITS ASSESSMENT OF THE
BARKER DUE PROCESS POST-TRIAL DELAY FACTORS WHERE:
A. REGARDING THE SECOND FACTOR, THE COURT
DECLARED THAT THERE WOULD BE “EXCLUDABLE
DELAY” FOR GOVERNMENT MANPOWER SHORTAGES;
B. REGARDING THE THIRD FACTOR, THE COURT HELD
THAT TRIAL DEFENSE COUNSEL’S CLEMENCY REQUEST
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Discussion
We have evaluated Canchola’s claim under the four factors
of 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 his right to timely post-trial review and appeal;
and (4) prejudice. United States v. Moreno, 63 M.J. 129, 135
(C.A.A.F. 2005); United States v. Jones, 61 M.J. 80, 83
(C.A.A.F. 2005); Toohey v. United States, 60 M.J. 100, 102
(C.A.A.F. 2004). We agree with the Court of Criminal Appeals
that the delay in this case was facially unreasonable, that
Canchola did not make a timely assertion of his right to speedy
review, and that Canchola has not demonstrated that he was
prejudiced by the delay. We part from the Court of Criminal
Appeals’ analysis, however, with respect to that court’s
assessment and weighing of the reasons for the delay under the
second factor of the Barker analysis.
In an addendum to his post-trial recommendation, the staff
judge advocate offered the following with regard to the delays
in post-trial processing:
DID NOT SERVE TO ASSERT APPELLANT’S RIGHT TO
TIMELY POST-TRIAL RELIEF; AND
C. REGARDING THE FOURTH FACTOR, THE COURT HELD
THAT APPELLANT WAS NOT PREJUDICED BY THE
UNREASONABLE DELAY WHERE HIS TRIAL DEFENSE
COUNSEL WAS DEPLOYED AND UNABLE TO CONTACT
APPELLANT AT THE TIME CLEMENCY MATTERS CAME
DUE.
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The defense counsel has addressed the post-trial delay
in this case and asserted that his client has not
received justice due to egregious delay. Due to a
number of unforeseeable events the post-trial review
process in this case has been unusually lengthy.
Multiple deployments by the SJA and support judge
advocates, as well as many of the Convening
Authorities, in support of Operation Enduring Freedom
and Operation Iraqi Freedom, and its many follow-on
missions, have caused severe manpower issues that have
affected the review process.
The Court of Criminal Appeals addressed this comment as follows:
We believe that such consideration is demanded by the
very nature of deployable fighting forces, especially
when those forces are expected to answer the call to
arms under austere budget and manpower constraints
that are a reality in our nation today. There must be
recognition in the post-trial arena of the concept of
“excludable delay” for good cause shown, just as it is
recognized in the pretrial arena. See, Rule for
Courts-Martial 707(c), Manual for Courts-Martial,
United States (2005 ed.); United States v. Longhofer,
29 M.J. 22 (C.M.A. 1989).
United States v. Canchola, __ M.J. ___, ___ (N.M. Ct. Crim. App.
2006).
We agree that the high demands placed upon military
personnel in supporting the national interests of the United
States, particularly in combat or hostile environments, is an
appropriate consideration when assessing the post-trial delay
factors under the Barker analysis. Where operational
requirements affect post-trial processing delays, staff judge
advocates and convening authorities should ensure that those
reasons are documented in the record of trial. Moreno, 63 M.J.
at 143. Reviewing courts can then weigh and balance those
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reasons in determining whether they provide adequate explanation
for any apparent post-trial delays. However, a general reliance
on budgetary and manpower constraints will not constitute
reasonable grounds for delay nor cause this factor to weigh in
favor of the Government.2 See id. at 137.
In this case the staff judge advocate’s proffered
explanation is too general to demonstrate that the
“unforeseeable events” had a reasonably direct impact on the
timeliness of post-trial processing. In particular, after the
military judge authenticated the record of trial, 503 days
elapsed before the staff judge advocate’s recommendation was
prepared. The post-trial recommendation is barely four pages
long and contains nothing that appears to be unusual or to have
warranted substantial additional preparation time. The record
upon which that recommendation is based is a fifty-nine page
guilty plea. In short, the proffered general explanation for
this glaring delay in reviewing a relatively simple case does
not withstand scrutiny. We conclude that the absence of reasons
2
The Court of Criminal Appeals’ attempt to adopt a concept of
“excludable delay” similar to that embodied in Rule for Courts-
Martial 707(c) is also inappropriate. Review and balancing of
the Barker factors, as set forth in our recent appellate delay
jurisprudence, provide a sufficient framework for determining
whether a due process violation has occurred. See generally
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2005); United
States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); Toohey v.
United States, 60 M.J. 100, 102 (C.A.A.F. 2004).
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for the delay in post-trial processing causes this factor to
weigh somewhat in Canchola’s favor.
Our balancing of the Barker factors in cases where we have
found no prejudice under the fourth prong will result in “a due
process violation only when, in balancing the other three
factors, the delay is 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). In light of this
standard, we agree with the Court of Criminal Appeals’
conclusion that Canchola was not denied his due process right to
timely post-trial review and speedy appeal.
Decision
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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