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

                               No. ACM S32408
                           ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                          Carlos O. PEREA
           Airman First Class (E-3), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                            Decided 24 May 2017
                          ________________________

Military Judge: Charles E. Wiedie, Jr.
Approved sentence: Bad-conduct discharge, confinement for 8 months,
and reduction to E-1. Sentence adjudged 18 April 2016 by SpCM con-
vened at Kadena Air Base, Japan.
For Appellant: Captain Kevin R. Cayton, USAF; Captain Patricia En-
carnación Miranda, USAF.
For Appellee: Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military
Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Senior Judge MAYBERRY and Judge SPERANZA joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________

JOHNSON, Senior Judge:
    A special court-martial composed of a military judge sitting alone found
Appellant guilty, in accordance with his pleas, of two specifications of attempt-
ing to commit a lewd act upon a person he believed to be under the age of 16
                   United States v. Perea, No. ACM S32408


years and one specification of attempting to possess child pornography, in vio-
lation of Article 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880.
Appellant was sentenced to a bad-conduct discharge, confinement for eight
months, and reduction to the grade of E-1. 1 The convening authority approved
the sentence as adjudged but deferred Appellant’s reduction in grade and au-
tomatic forfeiture of pay until action, and he then waived the automatic forfei-
ture of pay for six months for the benefit of Appellant’s dependent spouse and
child. See Articles 57a and 58b, UCMJ, 10 U.S.C. §§ 857a, 858b.
    This case was submitted to us on its merits with no assignments of error.
However, we address two issues not raised by the parties: (1) a facially unrea-
sonable delay in the post-trial processing of Appellant’s case, and (2) an error
in the convening authority’s action. We find no relief is warranted due to post-
trial delay, but we direct a corrected convening authority’s action and court-
martial order.

                                I. BACKGROUND
    In 2015 Appellant responded to an advertisement in the personals section
of the Craigslist website placed by “Liz,” and he began an electronic text corre-
spondence that spanned several months. “Liz” portrayed herself as a 14-year-
old girl living on Okinawa, where Appellant was stationed. Over the course of
their correspondence, Appellant persistently requested “Liz” send him naked
pictures of herself. In addition, he sent her a photo and a video of his penis and
a photo of another penis he found on the Internet. In fact, “Liz” was the fictional
creation of the Naval Criminal Investigative Service Child Crimes Task Force
operating from Camp Foster on Okinawa, Japan.

                                 II. DISCUSSION
A. Post-Trial Delay
   Appellant’s court-martial concluded on 18 April 2016, and the convening
authority took action on 2 June 2016. However, the record of trial was not
docketed with this court until 7 July 2016. This 35-day period exceeded the 30-
day threshold for a presumptively unreasonable post-trial delay established by
the United States Court of Appeals for the Armed Forces (CAAF) in United



1 A pretrial agreement between Appellant and the convening authority provided the
latter would approve no confinement in excess of 10 months, but included no other
limitations on the sentence he could approve. Accordingly, the agreement had no im-
pact on the convening authority’s ability to approve the adjudged sentence.




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                     United States v. Perea, No. ACM S32408


States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Accordingly, we have con-
sidered the four factors identified in Moreno to assess whether Appellant’s due
process right to timely post-trial and appellate review has been violated. 2 Id.
at 135 (citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005), United
States v. Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004)). Where, as here, there is no
discernible prejudice from the delay, there is no due process violation unless
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). Significantly, the convening authority took
action only 45 days after Appellant’s trial, as compared to the 120-day stand-
ard for presumptively unreasonable delay established in Moreno. 63 M.J. at
142. Considering the relevant factors together, we conclude that the 35 days
that elapsed between the convening authority’s action and docketing with this
court are not so egregious as to impugn the fairness and integrity of the mili-
tary justice system.
    Recognizing our authority under Article 66(c), UCMJ, we have also con-
sidered whether relief for excessive post-trial delay is appropriate in this case
even in the absence of a due process violation. See United States v. Tardif, 57
M.J. 219, 225 (C.A.A.F. 2002). After considering the 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), we conclude it is not. 3 On the whole, the processing of
Appellant’s case has not been subjected to excessive post-trial delay, and we
perceive no substantial harm to Appellant, prejudice to the interests of justice
or discipline, or erosion of this court’s ability to conduct our review or grant
appropriate relief that would move us to modify an otherwise fitting sentence.


2These factors include: (1) the length of the delay; (2) the reasons for the delay; (3) the
appellant’s assertion of his right to a timely review; and (4) prejudice to the appellant.
United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006) (citing United States v.
Jones, 61 M.J. 80, 83 (C.A.A.F. 2005), United States v. Toohey, 60 M.J. 100, 102
(C.A.A.F. 2004)).
3 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
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 evi-
dence 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. 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).


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                   United States v. Perea, No. ACM S32408


B. Erroneous Action
    Proper completion of post-trial processing is a question of law which this
court reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct.
Crim. App. 2004). If an action is found to be “illegal, erroneous, incomplete, or
ambiguous” during the review of the record of trial under Article 66, UCMJ,
the convening authority may modify the action “[w]hen so directed by a higher
reviewing authority.” Rule for Courts-Martial (R.C.M.) 1107(f)(2); see also
R.C.M. 1107(g) (stating the convening authority may be instructed by an au-
thority acting under Article 66 to withdraw the original action and substitute
a corrected action when it is “incomplete, ambiguous, or contains clerical er-
ror”).
    As noted above, at Appellant’s request, the convening authority deferred
Appellant’s adjudged reduction in grade as well as the automatic forfeiture of
pay pursuant to Article 58b, UCMJ, until he took action on Appellant’s sen-
tence. See Article 57a, UCMJ, 10 U.S.C. § 857a. However, both the action and
the promulgating order erroneously failed to report the deferral of the reduc-
tion in grade. See Air Force Instruction 51-201, Administration of Military Jus-
tice, ¶ 9.29.1.3 (6 Jun. 2013) (“The terms of approved deferrals . . . must be
reported in the action the convening authority ultimately takes on the case.”);
see also United States v. Griego, No. ACM 38600, 2015 CCA LEXIS 502 (A.F.
Ct. Crim. App. 5 Nov. 2015) (noting that erroneous failure to report the deferral
of reduction in grade in the convening authority action typically requires sub-
stitution of a corrected action and promulgation of a new court-martial order).
Accordingly, the action is incomplete, and a corrected action and court-martial
order are required.

                               III. CONCLUSION
    The record of trial is returned to The Judge Advocate General for remand
to the convening authority for modification of the convening authority’s action
and promulgation of a new court-martial order consistent with this opinion.
Article 66(e), UCMJ, 10 U.S.C. § 866(e). Thereafter, the record of trial will be
returned to this court for completion of appellate review under Article 66,
UCMJ, 10 U.S.C. § 866.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court



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