UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                              YOB, KRAUSS and BURTON
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                           Specialist JUSTIN A. PEAVY
                           United States Army, Appellant

                                    ARMY 20110884

                             Headquarters, Eighth Army
                      Colonel T. Mark Kulish, Military Judge
                 Colonel Jeffrey C. McKitrick, Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA; Captain Brian J. Sullivan, JA (on
brief).

For Appellee: Major Robert A. Rodrigues, JA (on brief).


                                    24 January 2013

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                                SUMMARY DISPOSITION
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YOB, Senior Judge:

       A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of one specification of violation of a lawful general regulation
by wrongfully possessing an intoxicating substance known as spice, one
specification of wrongfully introducing spice onto an installation of the armed
forces, and five specifications of wrongfully distributing spice to fellow soldiers, in
violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§
892, 934 (2006) [hereinafter UCMJ]. The military judge entered findings of not
guilty to another specification of violation of a lawful general regulation by
wrongfully possessing spice, a specification of wrongfully conspiring with another
to distribute spice, and ten specifications of wrongfully distributing spice or
possessing spice with the intent to distribute it. The convening authority approved
the adjudged sentence of a bad-conduct discharge, confinement for ninety days, and
reduction to the grade of E-1.
PEAVY—ARMY 20110884

       This case is before this court for review under Article 66, UCMJ. We have
considered the record of trial and matters submitted by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 1

        Pursuant to Grostefon, appellant requests sentencing relief for unreasonable
delay in the post-trial processing of his case by the government. We find this
request to be reasonable under the circumstances as set forth below. 2 Under post-
trial processing standards articulated by our superior court in United States v.
Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), we apply a presumption of unreasonable
government delay in cases where action by the convening authority is not taken
within 120 days of the completion of trial, and in situations where the record of trial
is not docketed at this court within 30 days of convening authority action. In
appellant’s case, the government failed to meet either of these timelines. This
included a delay of 159 days (after excluding 84 days of delay attributable to
appellant) from completion of appellant’s trial until convening authority action. In
addition, it took the government 151 days after the convening authority action to
docket the case with this court.

       Appellant does not assert prejudice as a result of this delay but, even absent
actual prejudice, this court is responsible to review the appropriateness of a sentence
in light of presumptively excessive and unexplained delay in post-trial processing.
UCMJ art. 66(c). See generally United States v. Toohey, 63 M.J. 353, 362–63
(C.A.A.F. 2006); Moreno, 63 M.J. at 143; United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002); United States v. Ney, 68 M.J. 613, 616–17 (Army Ct. Crim. App.
2010).

        The only explanations for the unreasonable delay contained in the record of
trial are a memorandum signed by the post-trial non-commissioned officer assigned
to the Office of the Staff Judge Advocate for Headquarters, Eighth Army, and
information entered onto the court-martial chronology sheet. Both documents
attribute the unreasonable delay from completion of appellant’s trial until convening
authority action to “a low number of court reporters” and note that it took 125 days
to transcribe the record. 3 The documents contain no information about the number
of court reporters who were available to the command during this time period, or any

1
    Appellant raised no assigned errors in this case.
2
 We find the other matters raised by appellant pursuant to Grostefon to be without
merit.
3
 We note that this case involved a guilty plea with no contested issues, and that the
completed transcript of the court proceedings was a mere 127 pages in length.




                                             2
PEAVY—ARMY 20110884

specific description of the contemporaneous workload that took the available court-
reporters away from their duty to produce a timely record of trial. The record is also
devoid of any explanation as to why it took nearly five months after action to docket
the case at this court.

       Reviewing the entire record of trial, and in light of the government’s failure
to meet its obligation to provide adequate reasons for excessive post-trial delay,
along with the particular circumstances of this case, we find a reduction of forty-five
days in the sentence to confinement to be appropriate. On consideration of the
entire record and the matters personally raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), we find the findings of guilty
correct in law and fact. Accordingly, the findings of guilty are affirmed. We find
the sentence as approved by the convening authority inappropriate, and the court
affirms only so much of the sentence as provides for a bad-conduct discharge,
confinement for forty-five 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 his sentence set aside by this decision, are ordered restored. See UCMJ
arts. 58b(c) and 75(a).

      Judge KRAUSS and Judge BURTON concur.


                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        MALCOLM     H. SQUIRES, JR.
                                        Clerk of Court
                                        Clerk of Court




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