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

                            No. ACM 39177
                        ________________________

                          UNITED STATES
                              Appellee
                                   v.
                    Demetris A. TOUTTOULOS
            Senior Airman (E-4), U.S. Air Force, Appellant
                        ________________________

       Appeal from the United States Air Force Trial Judiciary


                        Decided 24 April 2018
                        ________________________

Military Judge: Natalie D. Richardson (arraignment); Matthew P. Stof-
fel.
Approved sentence: Bad-conduct discharge, confinement for 180 days,
forfeiture of $1,044.00 pay per month for 6 months, and reduction to the
grade of E-1. Sentence adjudged 12 May 2016 by GCM convened at Joint
Base Elmendorf-Richardson, Alaska.
For Appellant: Major Jarett F. Merk, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Major Meredith L. Steer, USAF; Mary
Ellen Payne, Esquire.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
Judge DENNIS delivered the opinion of the court, in which Senior Judge
JOHNSON 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   This is an unpublished opinion and, as such, does not serve as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.
                        ________________________
                   United States v. Touttoulos, No. ACM 39177


DENNIS, Judge:
    A general court-martial convicted Appellant, contrary to his pleas, of one
specification of wrongful use of heroin on divers occasions, in violation of Arti-
cle 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. 1 Officer
and enlisted members sentenced Appellant to a bad-conduct discharge, con-
finement for 180 days, forfeiture of all pay and allowances, and reduction to
the grade of E-1. The convening authority approved the discharge, confinement
and rank reduction as adjudged, but only so much of the forfeitures as provided
for $1,044.00 pay per month for six months. 2
    In his sole assignment of error, Appellant alleges ineffective assistance of
counsel. 3 Specifically, he alleges that his defense counsel failed to advise Ap-
pellant of his rights at a post-trial Article 39(a), UCMJ, 10 U.S.C. § 839(a),
session to address a decertification issue with the drug testing laboratory that
tested and analyzed Appellant’s positive urine samples. Appellant also alleges
that his trial defense counsel “failed to zealously advocate” on his behalf during
the hearing. We also independently address the presumptively unreasonable
delay between Appellant’s trial and the convening authority’s action. We find
no error prejudicial to Appellant’s substantial rights and affirm the findings
and sentence.

                                  I. BACKGROUND
    Appellant’s conviction was based almost entirely on the positive results of
four urinalysis tests taken at Joint Base Elmendorf-Richardson, Alaska. Each
of the tests was analyzed at the Tripler Forensic Toxicology Drug Testing
Laboratory (FDTL-Tripler) at the Tripler Army Medical Center, Hawaii. On 1
August 2016, approximately three months after Appellant’s trial, FDTL-
Tripler was decertified for testing and reporting 6-Acetylmorphine, also known


1Appellant was acquitted of one specification each of wrongful use of morphine, hydro-
morphone, and codeine, in violation of Article 112a, UCMJ, and one specification of
breaking restriction, in violation of Article 134, UCMJ, 10 U.S.C. § 934.
2Appellant received 90 days of pretrial confinement credit and 90 days credit for illegal
pretrial punishment in violation of Article 13, UCMJ, 10 U.S.C. § 813. Because Appel-
lant completed his term of confinement prior to action, the convening authority ad-
justed the forfeitures to comply with Rule for Courts-Martial (R.C.M.) 1107(d)(2), Dis-
cussion (“When an accused is not serving confinement, the accused should not be de-
prived of more than two-thirds pay for any month . . .”).
3Appellant’s claim is made pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).




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                  United States v. Touttoulos, No. ACM 39177


as 6-AM, the metabolite for heroin, after failing to identify a known positive
sample during a proficiency analysis. The lab was recertified on 20 September
2016 after validating a new method and completing a certification set.
    Three of Appellant’s samples, those originally reporting a positive result
for heroin, were later retested at a separate certified facility. All three samples
were reconfirmed as positive on 18 August 2016, albeit with slightly different
concentrations of heroin. 4
    The convening authority ordered a post-trial session “to address eviden-
tiary matters that arose after trial that may affect the legal sufficiency of the
findings of guilty” in Appellant’s case as authorized by R.C.M. 1102(d). The
Article 39(a), UCMJ, session was held on 12 October 2016. The session con-
sisted primarily of marking several additional appellate exhibits regarding
FDTL-Tripler’s decertification and recertification, as well as the results of the
retesting of Appellant’s samples. The military judge also noted that Appellant’s
trial defense counsel requested and received additional consultation with a fo-
rensic toxicologist to assess the impact of the additional evidence on Appel-
lant’s case. Appellant was personally asked only one question: whether he un-
derstood the purpose of the session. He said that he did. The session ended 12
minutes after it began.

                                  II. DISCUSSION
A. Ineffective Assistance of Counsel
    Appellant’s claim of ineffective assistance of counsel pertains only to the
post-trial representation he received regarding the FDTL-Tripler decertifica-
tion.
    This court reviews claims of ineffective assistance of counsel de novo.
United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009) (citations omitted).
When reviewing such claims, we follow the two-part test outlined by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).
The United States Court of Appeals for the Armed Forces (CAAF) has applied
this standard to military courts-martial, noting that “[i]n order to prevail on a
claim of ineffective assistance of counsel, an appellant must demonstrate both
(1) that his counsel’s performance was deficient, and (2) that this deficiency


4 The first urine sample originally tested positive for heroin at 13 nanograms per mil-
liliter (ng/mL) but retested at 10 ng/mL. The second urine sample originally tested
positive for heroin at 39 ng/mL but retested at 37 ng/mL. The third urine sample orig-
inally tested positive for heroin at 90 ng/mL but retested at 75 ng/mL. All three sam-
ples retested at concentration levels above the Department of Defense cutoff level to
be confirmed positive.


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                 United States v. Touttoulos, No. ACM 39177


resulted in prejudice.” United States v. Green, 68 M.J. 360, 361–62 (C.A.A.F.
2010) (citing Strickland, 466 U.S. at 687; Mazza, 67 M.J. at 474).
    Appellant’s right to counsel extends to post-trial proceedings. United States
v. Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997). As a general rule, al-though de-
fense counsel is responsible for making tactical decisions, he should act “after
consultation with the client where feasible.” United States v. MacCulloch, 40
M.J. 236, 239 (C.M.A. 1994) (citing ABA Standard 4-5.2(b) (1993)). Applying
the Strickland analysis, we need not decide if defense counsel was deficient
during the post-trial representation of Appellant if Appellant fails to show that
the alleged deficiency resulted in prejudice. Appellant has failed to make such
a showing in this case.
    Both Appellant and trial defense counsel submitted declarations regarding
the post-trial Article 39(a), UCMJ, session. By order of this court, Appellant’s
trial defense counsel submitted a declaration outlining his consultation with
Appellant. After discussing the evidence with the defense expert in forensic
toxicology, trial defense counsel discussed the issue with Appellant. Defense
counsel explained that the evidence “did not serve as a sufficient basis for re-
questing a new trial,” that “the post-trial session would be very short,” and that
“there would be no motions presented.” Appellant’s declaration was largely
consistent with that of his trial defense counsel, but Appellant’s declaration
added that his counsel “believed that the dates of my urinalysis and the time
of the decertification were not close enough to bring up a defense.” Appellant
also claimed that his trial defense counsel “did not make it seem like I had any
other options or motions that we could have pursued.” Appellant asserts that
had he known of his options, he would have wanted to move “for a retrial or
any type of review or relief at that time.”
    Setting aside the difference of opinion between Appellant and his trial de-
fense counsel, the critical issue here is whether a request for a new trial would
have been granted. Requests for new trial on the basis of newly-discovered ev-
idence are granted when Appellant can establish the following: (1) the evidence
was discovered after the trial; (2) the evidence was not such that it would have
been discovered by the petitioner at the time of trial in the exercise of due dil-
igence; and (3) the newly-discovered evidence, if considered by a court-martial
in light of all other pertinent evidence, would probably produce a substantially
more favorable result. R.C.M. 1210(f)(2)(A)–(C). Appellant asserts that he
would have asked for a new trial, but he has not offered any evidence to show
that the decertification evidence would have led to a different result. As noted
by his trial defense counsel, the dates of his urinalysis and the timing of the




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                  United States v. Touttoulos, No. ACM 39177


decertification did not establish a defense. 5 Also telling is the fact that Appel-
lant’s samples were retested at a separate facility which confirmed, once again,
that the samples were positive for heroin.
    Based on our review of the record, we are convinced that a request for a
new trial based on the decertification evidence would have been denied. Ac-
cordingly, we find that Appellant has failed to demonstrate prejudice and deny
his claim of ineffective assistance of counsel.
B. Post-Trial Processing Delay
   It took 174 days from the day Appellant was sentenced for the convening
authority to take action.
    Where the convening authority’s action is not taken within 120 days of the
end of trial, we apply the presumption of unreasonable post-trial delay estab-
lished by the CAAF in United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F.
2006). We review de novo whether Appellant’s due process rights were violated
because of post-trial delay. Id. at 135. In conducting our analysis, we have con-
sidered the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530–32
(1972): (1) the length of the delay; (2) the reasons for the delay; (3) Appellant’s
assertion of the right to timely review and appeal; and (4) prejudice. “[These]
four factors are balanced, with no single factor being required to find that post-
trial delay constitutes a due process violation.” Moreno, 63 M.J. at 136 (citing
Barker, 407 U.S. at 533).
    After applying the Barker factors, we conclude that the 54-day delay, while
presumptively unreasonable, was adequately explained by the record. The
FDTL-Tripler was decertified on 1 August 2016 as the transcript was being
reviewed for certification by the military judge. Notably, both counsel and the
military judge certified the original transcript well within the required 120-
day period. Notwithstanding their efficiency, the decertification required re-
testing of Appellant’s samples and the scheduling of a post-trial Article 39(a),
UCMJ, session on 12 October 2016. We also note that action was taken just 21
days after the post-trial hearing and docketed with this court 14 days after
action. In light of these particular circumstances, we find that the Government
acted with reasonable diligence in the post-trial processing of Appellant’s case.
   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.”


5The supplemental records indicate that the heroin testing error at the FDTL-Tripler
occurred in May 2016. We note that each of Appellant’s samples resulting in a positive
result for heroin occurred between on or about 10 December 2015 and on or about 4
February 2016.


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                   United States v. Touttoulos, No. ACM 39177


United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). Considering the rel-
evant factors together, we conclude that the 174 days that elapsed between the
conclusion of trial and the convening authority’s action are not so egregious as
to impugn the fairness and integrity of the military justice system.
     Recognizing our authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c),
we have also considered whether relief for excessive post-trial delay is appro-
priate 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. 6 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 in-
terests 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.

                                   III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cle 59(a), UCMJ, 10 U.S.C. §859(a), and Article 66(c), UCMJ. Accordingly, the
findings and the sentence are AFFIRMED.


                   FOR THE COURT



                   CAROL K. JOYCE
                   Clerk of the Court




6 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. Gay, 74 M.J. at 744.


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