U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32393
________________________
UNITED STATES
Appellee
v.
Kyle D. PENDLEY
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 22 May 2017
________________________
Military Judge: Joseph S. Imburgia.
Approved sentence: Bad-conduct discharge, confinement for 15 days,
and reduction to E-1. Sentence adjudged 12 February 2016 by SpCM
convened at Travis Air Force Base, California.
For Appellant: Lieutenant Colonel Anthony D. Ortiz, USAF.
For Appellee: Major J. Ronald Steelman III, USAF; Gerald R. Bruce,
Esquire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges.
Senior Judge J. BROWN delivered the opinion of the court, in which
Chief Judge DREW and Judge MINK joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
J. BROWN, Senior Judge:
A special court-martial composed of a military judge sitting alone found
Appellant guilty, consistent with his pleas pursuant to a pretrial agreement,
of divers wrongful use of opium and divers wrongful use of cocaine, in viola-
tion of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
United States v. Pendley, No. ACM S32393
912a. The military judge sentenced Appellant to a bad-conduct discharge,
confinement for 30 days, and reduction to E-1. Although not required to do so
by the pretrial agreement, the convening authority chose to only approve that
much of the sentence that provided for a bad-conduct discharge, 15 days of
confinement, and a reduction to the grade of E-1.
Now on appeal, Appellant maintains that he is entitled to “meaningful
sentence relief” pursuant to United States v. Tardif,
57 M.J. 219 (C.A.A.F.
2002). We disagree and affirm.
I. BACKGROUND
On ten occasions between 1 June 2014 and 30 April 2015, Appellant
wrongfully used opium. On three occasions during the same time period, Ap-
pellant also used cocaine. He used these drugs both on and off base, as well
as with other military members.
II. DISCUSSION—POST-TRIAL DELAY
Appellant’s case was docketed with us 52 days after the convening author-
ity’s action. Appellant seeks sentence relief due to the delay between the con-
vening authority’s action and our docketing of his case.
The Government submitted an affidavit to explain the delay. According to
the Government, the delay was caused by difficulties with Federal Express
delivery services. Seven days after action, the legal office sent, via Federal
Express, the record of trial for docketing with this court. Approximately three
weeks later, the legal office checked the status of the package. They then dis-
covered that the delivery service was unable to deliver the package as ad-
dressed and the package was being held at a holding center in Tennessee.
The base made arrangements for the package to be returned to them, and
they re-sent it. This second effort was successful, and the record was docketed
with this court, though by then it was 52 days after the convening authority’s
action.
“[C]onvicted servicemembers have a due process right to timely review
and appeal of courts-martial convictions.” United States v. Moreno,
63 M.J.
129, 135 (C.A.A.F. 2006). Accordingly, we review de novo Appellant’s claim
that he has been denied his due process right to a speedy post-trial review
and appeal.
Id.
In Moreno, the Court of Appeals for the Armed Forces (CAAF) established
a presumption of unreasonable post-trial delay that requires a due process
review when the convening authority does not take action within 120 days of
trial, when a record of trial is not docketed with us within 30 days of the con-
2
United States v. Pendley, No. ACM S32393
vening authority’s action, or when we do not render a decision within 18
months of the case’s docketing. Id. at 142.
If there is a Moreno-based presumption of unreasonable delay or an oth-
erwise facially-unreasonable delay, we examine the claim under the four fac-
tors 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 and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135.
Moreno identified three types of prejudice arising from post-trial processing
delay: (1) oppressive incarceration; (2) anxiety and concern; and (3) impair-
ment of ability to present a defense at a rehearing. Id. at 138–39.
“We analyze each factor and make a determination as to whether that
factor favors the Government or [Appellant].” Id. at 136. Then, we balance
our analysis of the factors to determine whether a due process violation oc-
curred. Id.; see also Barker,
407 U.S. at 533 (“Courts must still engage in a
difficult and sensitive balancing process.”). “No single factor is required for
finding a due process violation and the absence of a given factor will not pre-
vent such a finding.” Moreno, 63 M.J. at 136. However, where an appellant
has not shown prejudice from the delay, there is no due process violation un-
less 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).
The period of 52 days between action and docketing in this case is pre-
sumptively unreasonable, exceeding the standard by 22 days, and triggers a
full due process review under Moreno. However, Appellant has not claimed
any legally cognizable prejudice from the delay, and we find none. Balancing
the remaining factors, and considering the Government’s explanation for the
delay, we do not find the delay so egregious that tolerating it would adversely
affect the public’s perception of the fairness and integrity of the military jus-
tice system. See Toohey, 63 M.J. at 362. Therefore, we find no due process vio-
lation.
Although we find no due process violation in Appellant’s case, we none-
theless consider whether Article 66(c), UCMJ,
10 U.S.C. § 866(c), relief pur-
suant to Tardif is appropriate. 57 M.J. at 224. In resolving Appellant’s re-
quest for Tardif relief, we are guided by factors enumerated in United States
v. Gay,
74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d,
75 M.J. 264
(C.A.A.F. 2016), with no single factor being dispositive. * We are also mindful
*These factors include: (1) How long the delay exceeded the standards set forth in
Moreno; (2) what reasons, if any, the Government set forth for the delay, and wheth-
(Footnote continues on next page)
3
United States v. Pendley, No. ACM S32393
of the CAAF’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 delays] and worthy of the least pa-
tience.” United States v. Dunbar,
31 M.J. 70, 73 (C.M.A. 1990) (hyphen omit-
ted).
After balancing all of the factors, we conclude no extraordinary exercise of
our Article 66(c) authority is warranted here. Considered as a whole, Appel-
lant’s case has not been subjected to excessive delay, and we discern no par-
ticular harm to Appellant. The delay has not lessened the disciplinary effect
of Appellant’s sentence. The delay has not adversely affected our ability to
review Appellant’s case or grant him relief, if warranted. The circumstances
of Appellant’s case do not move us to reduce an otherwise appropriate sen-
tence imposed by the military judge and approved by the convening authori-
ty. See also United States v. Gines, No. ACM S32410,
2017 CCA LEXIS 200
(A.F. Ct. Crim. App.
23 Mar. 2017) (unpub. op.) (no relief for 46 days between
action and docketing); United States v. Ruiz, No. ACM 38752,
2016 CCA
LEXIS 470 (A.F. Ct. Crim. App. 9 Aug. 2016) (unpub. op.) (no relief for 57
days between action and docketing); United States v. Spencer, No. ACM
S32198,
2015 CCA LEXIS 38 (A.F. Ct. Crim. App. 5 Feb. 2015) (unpub. op.)
(no relief for 46 days between action and docketing).
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c).
er there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) whether there is evidence of harm (either to the appellant or
institutionally) caused by the delay; (4) whether the delay has lessened the discipli-
nary effect of the sentence, and whether relief is consistent with the dual goals of jus-
tice and good order and discipline; (5) whether there is any evidence of institutional
neglect concerning timely post-trial processing, either across the service or at a par-
ticular installation; and (6) whether, given the passage of time, this court can provide
meaningful relief in this particular situation. United States v. Gay,
74 M.J. 736, 744
(A.F. Ct. Crim. App. 2015), aff’d,
75 M.J. 264 (C.A.A.F. 2016).
4
United States v. Pendley, No. ACM S32393
Accordingly, the findings and sentence are AFFIRMED.
FOR THE COURT
MICAH L. SMITH
Deputy Clerk of the Court
5
