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

                             No. ACM S32372
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                        Latisha K. WELLS
          Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 31 March 2017
                          ________________________

Military Judge: Michael P. Dillinger.
Approved sentence: Bad-conduct discharge, confinement for 75 days,
forfeiture of $1,000.00 pay per month for 4 months, and reduction to
E-1. Sentence adjudged 24 June 2015 by SpCM convened at Joint Base
San Antonio-Lackland, Texas.
For Appellant: Captain Annie W. Morgan, USAF.
For Appellee: Major Meredith L. Steer, USAF; Gerald R. Bruce, Es-
quire.
Before MAYBERRY, SPERANZA, and JOHNSON, Appellate Military
Judges.
Senior Judge MAYBERRY delivered the opinion of the court, in which
Judges SPERANZA and JOHNSON joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
MAYBERRY, Senior Judge:
   A special court-martial composed of a military judge sitting alone convict-
ed Appellant, consistent with her pleas pursuant to a pretrial agreement, of
                    United States v. Wells, No. ACM S32372


assault consummated by a battery by unlawfully touching Airman First
Class (A1C) LE on the mouth with her hand, underage drinking, and obstruc-
tion of justice in violation of Articles 128 and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 928, 934. The adjudged and approved sentence
consisted of a bad-conduct discharge, confinement for 75 days, forfeiture of
$1,000.00 per month for four months, and reduction to E-1.
    Appellant alleges: (1) unreasonable post-trial delay; and (2) the sentence
is inappropriately severe. Finding no relief is warranted, we affirm the find-
ings and sentence as approved by the convening authority.

                                    I. BACKGROUND
    Appellant and a number of other permanent party Airmen gathered in
her dorm room the evening of 30 May 2014. Appellant, her suitemate, and a
third female Airman, A1C LE, were drinking. Appellant was not yet 21 years
of age. Throughout the evening, other Airmen, mostly males, joined the
group. Later, A1C LE became extremely intoxicated, vomited in the common
area sink, and lay down on Appellant’s bed. At some point after that, A1C LE
engaged in sexual conduct with A1C TA, 1 causing A1C LE to make a lot of
noise. 2 Appellant was still in the room and as a result of the noise, placed her
hand on A1C LE’s mouth and told her to be quiet or words to that effect.
    In the early hours of the following morning, Appellant texted A1C TA in-
forming him that A1C LE was going to the hospital to determine if she had
been raped and that he should “let the boys know.” The next day Appellant
again texted A1C TA indicating A1C LE was asking about what happened.
Appellant told A1C TA to tell the others to “act like they don’t know cause
she’s gonna ask them . . . Tell them to say they don’t remember nd [sic] every-
thing will be straight.” The Air Force Office of Special Investigations (AFOSI)
investigated the allegations of sexual assault made by A1C LE. Appellant
was interviewed as a subject and subsequently charged with the offenses cur-
rently before this court. 3



1 At the time of these events, Appellant and A1C TA were involved in a sexual rela-
tionship with one another.
2 As a result of the actions that took place that evening, A1C LE later made allega-
tions of sexual assault against three different Airmen.
3 Appellant was considered a subject in the initial AFOSI investigation as a conspira-
tor in the alleged sexual assaults. She was read her rights for a violation of Article
120, UCMJ, 10 U.S.C. § 920. The pretrial hearing officer in that case opined that
(Footnote continues on next page)


                                          2
                    United States v. Wells, No. ACM S32372


                                 II. DISCUSSION
A. Post-Trial Delay
    Action in Appellant’s case was completed 189 days after she was sen-
tenced. This specific delay was caused by AFOSI initiating an investigation
into whether Appellant was a victim of a sexual assault on the same evening
involving the charges before us. Appellant seeks sentence relief in the form of
disapproval of her bad-conduct discharge.
   Convicted 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
she has been denied her due process right to a speedy post-trial review and
appeal. Id.
    In Moreno, the Court of Appeals for the Armed Forces (CAAF) estab-
lished 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 convening authority’s action, and when we do not render a decision with-
in 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 (citations
omitted).
    We analyze each factor and make a determination as to whether that fac-
tor favors the Government or Appellant. Id. at 136. Then, we balance our
analysis of the factors to determine whether a due process violation occurred.
Id.; see also Barker, 407 U.S. at 533 (“[c]ourts 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 prevent 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 unless the delay is


there was insufficient evidence to support charging Appellant with conspiracy as to
the sexual assault of A1C LE.




                                        3
                      United States v. Wells, No. ACM S32372


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 189 days between sentencing and action in
this case is presumptively unreasonable, exceeding the standard by 69 days,
and triggers a full due process review under Moreno.
    Analyzing the reasons for the delay, we must take into account the com-
plete chronology of events. As indicated earlier, Appellant was interviewed by
AFOSI regarding the sexual assault allegations made by A1C LE. During
that interview, she indicated that she engaged in oral sex with A1C TA but
she did not assert that the conduct was nonconsensual. Additional evidence
in the form of texts and statements attributable to Appellant support that
her sexual conduct with A1C TA on the night in question was consensual.
Nevertheless, during sentencing argument, Appellant’s trial defense counsel
asserted that Appellant was also sexually assaulted by A1C TA on the night
in question but had never been considered a victim. While there is some disa-
greement as to exactly when the legal office was aware of Appellant’s allega-
tion of sexual assault, there is no dispute that AFOSI initiated an investiga-
tion approximately five weeks after the conclusion of her trial, on 5 August
2015, as a result of her counsel’s sentencing argument. The report of investi-
gation (ROI) was completed on 3 November 2015 and the convening authority
(CA) finalized his decision not to pursue criminal charges on 16 December
2015. Action was finally taken by the CA on 30 December 2015. The staff
judge advocate recommendation (SJAR) asserts that the CA decided to post-
pone post-trial processing until after the completion of the AFOSI investiga-
tion. 4
   Appellant’s counsel was diligent in asserting Appellant’s right to speedy
post-trial review. He submitted a clemency package on 27 July 2015, 5 sent an
email to the CA on 29 September 2015 asking for the status of the decision
regarding clemency, 6 and filed a demand for speedy post-trial processing pur-
suant to Article 38(c) on 24 November 2015. Finally, after receiving the SJAR

4   The SJAR mistakenly states Appellant claims she was raped.
5Clemency was submitted three days after the military judge authenticated the rec-
ord, but well before service of the SJAR which was not provided until 17 December
2016, the day after the CA’s decision not to charge A1C TA with sexually assaulting
Appellant.
6 On 3 September 2015, Appellant’s trial defense counsel emailed the SJA inquiring
as to the status of clemency, having been told by Appellant’s first sergeant that the
legal office told the unit the AFOSI investigation would have no impact on Appel-
lant’s sentence.




                                          4
                     United States v. Wells, No. ACM S32372


on 17 December 2015, Appellant’s counsel filed a supplemental clemency
package on 23 December 2015, including inter alia all of the previous re-
quests for speedy post-trial review. This factor weighs heavily in favor of Ap-
pellant.
    Lastly as to prejudice, Appellant claims particularized anxiety as a result
of being unsure if, or when, she would be confined, taking her away from her
newborn daughter during a time when mother-child bonding is critically im-
portant. Appellant gave birth to her daughter on 8 June 2015. The pretrial
agreement included a provision to defer confinement for no less than 60 days
after the child was born. The action established 11 January 2016 as the date
confinement would start. Reduction in rank and forfeitures had already been
executed in accordance with Article 57(a), UCMJ. While Appellant may have
been understandably anxious about going to confinement, she had an addi-
tional four months of freedom, with her child, as a result of the delay. We do
not find Appellant was prejudiced by the delay.
     In the absence of prejudice, balancing the remaining factors, we do not
find the delay so egregious that tolerating it would adversely affect the pub-
lic’s perception of the fairness and integrity of the military justice system. See
Toohey, 63 M.J. at 362. Therefore, we find no due process violation. We note
that although the SJAR asserts that the convening authority decided to post-
pone post-trial processing until after the completion of the AFOSI investiga-
tion, that document was not served on counsel until December and there is no
evidence before us that trial defense counsel was aware of the decision to
postpone post-trial processing. Even if he was so aware, trial defense counsel
was not required to accept that course of action and we believe that the ef-
forts he made to request speedy post-trial processing were appropriate in this
case.
   Although we find no due process violation in Appellant’s case, we none-
theless consider whether Article 66(c), UCMJ, relief pursuant to United
States v. 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. 7 After balancing the


7 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-
er there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) Keeping in mind that our goal under Tardif is not to analyze
for prejudice, whether there is nonetheless some evidence of harm (either to the ap-
pellant or institutionally) caused by the delay; (4) Whether the delay has lessened the
(Footnote continues on next page)


                                            5
                     United States v. Wells, No. ACM S32372


factors, we conclude no extraordinary exercise of our Article 66(c) authority is
warranted here. Considered as a whole, Appellant’s case has not been sub-
jected to excessive delay, and we discern no particular 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 her relief, if warranted. The circumstances of Appellant’s case do not
move us to reduce an otherwise appropriate sentence imposed by the military
judge and approved by the convening authority.
B. Sentence Appropriateness
   Appellant argues that her sentence was inappropriately severe. We disa-
gree.
    This court reviews sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “We assess sentence appropriateness by
considering the particular appellant, the nature and seriousness of the of-
fenses, the appellant’s record of service, and all matters contained in the rec-
ord of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App.
2009). Although we are accorded great discretion in determining whether a
particular sentence is appropriate, we are not authorized to engage in exer-
cises of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
    Appellant’s convictions included assault consummated by a battery,
whereby she placed her hand over the mouth of another Airman who was be-
ing sexually assaulted, and obstruction of justice for texting one of the alleged
assailants, “they’re taking her to Wilford Hall to run tests to see if she’s been
raped, so let the boys know. . . ” and later sending another text stating, “Just
tell them to act like they don’t know cause she’s gonna ask them. . . . Tell
them to say they don’t remember nd [sic] everything will be straight.”
   At trial, defense counsel advocated that Appellant was also a victim of a
sexual assault that evening and that Appellant believed A1C LE consented to
the sexual activity that took place. On appeal, appellate defense counsel re-
news the assertion that Appellant was herself a sexual assault victim and
asserts that the sentence imposed by the military judge was based on 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) Whether there is any
evidence of institutional neglect concerning timely post-trial processing, either across
the service or at a particular installation; and (6) Given the passage of time, whether
this court can provide meaningful relief in this particular situation.




                                           6
                    United States v. Wells, No. ACM S32372


characterization of the night in question as a sexual assault, whereas the
true facts and circumstances of Appellant’s offenses are minor in nature. 8
    We have given individualized consideration to Appellant, the nature and
seriousness of the offenses, Appellant’s record of service, and all other mat-
ters contained in the record of trial. Appellant’s pretrial agreement allowed
for the statutory maximum of a special court-martial: 12 months confine-
ment, reduction to E-1, forfeiture of two-thirds’ pay per month for 12 months,
and a bad-conduct discharge. The approved sentence of a bad-conduct dis-
charge, 75 days of confinement, forfeiture of $1,000.00 per month for four
months, and reduction to E-1 was within the terms of Appellant’s pretrial
agreement and properly addressed her serious misconduct. The sentence was
legally appropriate based on the facts and circumstances of this particular
case and was not inappropriately severe.

                                 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). Accordingly, the
findings and the sentence are AFFIRMED.


                  FOR THE COURT



                  KURT J. BRUBAKER
                  Clerk of the Court




8 In an attempt to buttress this argument, counsel filed a motion to attach the results
of the joint court-martial where the three Airmen accused of sexually assaulting A1C
LE on the night in question were found not guilty. Appellant also submitted an affi-
davit alleging she had been diagnosed with a service-connected brain injury after her
trial and the submission of clemency. This court denied the motion and these matters
were not considered.




                                          7
