United States v. Smith

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Airman Basic JAMES R. SMITH, JR.
United States Air Force
ACM S32261
7 October 2015
Sentence adjudged 5 August 2014 by SPCM convened at Minot Air Force
Base, North Dakota. Military Judge: Joshua E. Kastenberg (sitting alone).
Approved Sentence: Bad-conduct discharge, confinement for 3 months,
forfeiture of $950.00 per month for 4 months, and a reprimand.
Appellate Counsel for the Appellant: Lieutenant Colonel Joy L. Primoli.
Appellate Counsel for the United States: Major Roberto Ramirez and
Gerald R. Bruce, Esquire.
Before
ALLRED, MITCHELL, and KIEFER
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
KIEFER, Judge:
In accordance with his pleas and pursuant to a pretrial agreement, Appellant was
found guilty by a military judge sitting alone of failing to obey a lawful order, wrongful
use of marijuana on divers occasions, wrongful use of Oxycodone, and breaking
restriction on divers occasions in violation of Articles 92, 112a, and 134, UCMJ, 10
U.S.C. §§ 892, 912a, 934. The military judge sentenced Appellant to a bad-conduct
discharge, confinement for 3 months, forfeiture of $950.00 pay per month for 4 months, and a
reprimand. The convening authority approved the sentence as adjudged.
Relief for Post-Trial Processing Delay
Appellant was tried on 5 August 2014. Action occurred on 28 August 2014. The
case was docketed with this court on 8 October 2014. On appeal, Appellant argues this
41-day period from action to docketing with this court requires relief under United States
v. Tardif, 57 M.J. 219 (C.A.A.F. 2002). The Government does not dispute the 41-day
period, but argues that the facts and circumstances surrounding any post-trial delay do not
warrant relief in this case.
In United States v. Moreno, the Court of Appeals for the Armed Forces established
certain post-trial processing time standards. 63 M.J. 129, 142 (C.A.A.F. 2006). If a case
is not docketed with the respective service court within 30 days of convening authority
action, the processing is presumptively unreasonable. Id. Additionally, through powers
under Article 66(c), UCMJ, 10 U.S.C. § 866(c), the Courts of Criminal Appeals have
authority to grant relief for excessive post-trial delay if they determine relief is
appropriate. Tardif, 57 M.J. at 224.
In this case, the Government’s post-trial processing exceeded the initial 30-day
standard by 11 days. Consequently, that post-trial delay is presumptively unreasonable.
To assess a presumptively unreasonable delay, we typically 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 and
appeal, and (4) prejudice. Moreno, 63 M.J. at 135–36. When we assume unreasonable
delay but are able to directly conclude that any error was harmless beyond a reasonable
doubt, we need not engage in a separate analysis of each factor. See United States v.
Allison, 63 M.J. 365, 370 (C.A.A.F. 2006). That approach is appropriate in Appellant’s
case. Appellant does not allege, nor do we find in the record, any prejudice from this
11-day delay. We conclude that any error was harmless beyond a reasonable doubt.
Article 66(c), UCMJ, 10 U.S.C. § 866(c), empowers appellate courts to grant
sentence relief for excessive post-trial delay without the showing of actual prejudice
required by Article 59(a), UCMJ, 10 U.S.C. § 859(a). Tardif, 57 M.J. at 224;
see also United States v. Harvey, 64 M.J. 13, 24–25 (C.A.A.F. 2006) (concluding that the
appellant was denied due process right to speedy review and appeal despite an inability to
establish specific prejudice). In United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim.
App. 2015), we identified a list of factors to consider in evaluating whether Article 66(c),
UCMJ, relief should be granted for post-trial delay. Those factors include how long the
delay exceeded appellate review standards, the reasons for the delay, whether the
government acted with bad faith or gross indifference, evidence of institutional neglect,
harm to the appellant or to the institution, whether relief is consistent with the goals of
both justice and good order and discipline, and whether this court can provide any
meaningful relief. Id. No single factor is dispositive and we may consider other factors
as appropriate. Id.
2 ACM S32261
Having considered the totality of the circumstances and entire record, we find the
period of 41 days from action to docketing of the case in this court, while unexplained,
was not excessive or egregious under Tardif. Further, we find overall post-trial
processing was otherwise timely and reasonable. Accordingly, we conclude that any
delay in Appellant’s post-trial review and appeal was harmless beyond a reasonable
doubt, and no relief is warranted.
Conclusion
The findings of guilty 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. Accordingly, the findings and the sentence are AFFIRMED.
FOR THE COURT
LEAH M. CALAHAN
Deputy Clerk of the Court
3 ACM S32261