United States v. Sergeant ALBERTO A. SILVA-SADDER ( 2015 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, HERRING, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant ALBERTO A. SILVA-SADDER
United States Army, Appellant
ARMY 20121164
Headquarters, Fort Carson
Timothy Grammel, Military Judge
Lieutenant Colonel Michael D. Mierau, Jr., Acting Staff Judge Advocate (pretrial)
Colonel Paul J. Perrone, Jr., Staff Judge Advocate (recommendation)
Lieutenant Colonel Stephanie D. Sanderson, Staff Judge Advocate (addendum)
For Appellant: Captain Patrick J. Scudieri, JA; Frank J. Spinner, Esq., (on brief);
Captain Patrick J. Scudieri, JA; Frank J. Spinner, Esq., (on reply brief).
For Appellee: Major Steven J. Collins, JA; Captain Scott J. Goble, JA (on brief).
27 October 2015
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SUMMARY DISPOSITION
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Per Curiam:
A panel with enlisted representation, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of one specification of aggravated sexual
contact, seven specification of abusive sexual contact, four specifications of
indecent acts, three specifications of sodomy by force, one specification of assault
consummated by a battery, two specifications of possessing child pornography and
one specification of kidnapping in violation of Articles 120, 125, 128, and 134,
Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 920, 925, 928,
934. (2006 & Supp. III 2010 & Supp. IV 2011). The panel sentenced appellant to a
dishonorable discharge, confinement for thirty-five years, and reduction to the grade
of E-1. The convening authority approved the findings and sentence but waived
$350 per month of automatic forfeitures with the direction the money be paid to Ms.
NP.
SILVA-SADDER—ARMY 20121164
This case is before us pursuant to Article 66, UCMJ. Appellant raises three
assignments of error, one of which merits discussion and relief. The matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982), are without merit.
BACKGROUND
Appellant’s court-martial concluded on 22 December 2012. Defense counsel
received the record of trial for review on 10 April 2013 and completed review on 22
May 2013. The military judge authenticated the record of trial on 7 June 2013. The
staff judge advocate signed his recommendation (SJAR) on 25 June 2013 and served
it in conjunction with the authenticated record of trial on appellant’s defense counsel
on 1 July 2013. Appellant received the authenticated record of trial and SJAR on 17
July 2013. The government received post-trial matters on behalf of the appellant on
16 August 2013. The staff judge advocate signed the addendum on 3 October 2013
and the convening authority took action the same day. This court received the
record of trial on 28 January 2014.
The government conceded that it “cannot provide a reasonable explanation for
the length of delay from the convening authority’s action to the mailing of the
[record of trial] to [this court].”
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 400 days to process appellant’s case from trial completion to
docketing at this court is presumptively unreasonable and violates both the standard
for timeliness for 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.

One other standard—timeliness of appellate review before this court—is not
relevant in appellant’s case. Moreno, 63 M.J. at 142-43.
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The post-trial processing time in appellant’s case is 285 days from sentence to
action. The government served defense counsel with the record of trial for review
110 days after the conclusion of appellant’s trial. Although the government argues
sixty days of the delay is attributable to defense counsel for time spent reviewing
record of trial and submission of matters pursuant to RCM 1105, we disagree.
Defense counsel completed her errata nine days after trial counsel, and the trial
counsel received the record of trial one day prior to defense counsel. Additionally,
Rule for Courts-Martial 1106(f)(5) automatically grants defense ten days to submit
post-trial matters. With twenty-eight days of delay attributable to the defense, the
processing time from trial to initial action is 257 days. See United States v. Garman,
59 M.J. 677 (Army Ct. Crim. App. 2003). Another 117 days passed from action to
receipt by this court. The delay from trial to initial action is more than double the
time where this court presumes unreasonable delay in post-trial processing between
sentence and action and eighty-seven days beyond 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 chief of military justice outlines several reasons for
the delay to include: the “unusually large number of courts-martial cases [sic] that
required processing for action at the same time,” “an unprecedented number of
R.C.M. 1105 submissions in a short period of time,” and “the government
shutdown.” 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). We are sympathetic to the
staffing problems created by a federal government shutdown; however, according to
the government’s explanation, the post-trial specialist was out of the office for only
four days. 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 government as the appellant
did not assert his right to speedy post-trial processing until this appeal. 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 unjustified 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 forty-five day reduction in confinement under
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SILVA-SADDER—ARMY 20121164
Article 66(c), UCMJ, for the unreasonable and unexplained 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 dishonorable discharge,
confinement for thirty-four years and 320 days, and reduction to the grade of E-1.
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 THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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