                         UNITED STATES, Appellee

                                         v.

                        Kevin L. SIMON, Private
                     U.S. Marine Corps, Appellant

                                  No. 05-0563
                        Crim. App. No. 200500094

       United States Court of Appeals for the Armed Forces

                         Argued October 18, 2006

                       Decided November 27, 2006

EFFRON, C.J., delivered the opinion of the Court, in which BAKER
and ERDMANN, JJ., joined.

                                     Counsel


For Appellant: Lieutenant Richard H. McWilliams, JAGC, USNR
(argued); Lieutenant Janelle M. Lokey, JAGC, USNR (on brief);
Lieutenant Brian L. Mizer, JAGC, USNR.


For Appellee: Lieutenant Jessica M. Hudson, JAGC, USNR
(argued); Commander Charles N. Purnell, JAGC, USN (on brief).



Military Judge:    P. J. Betz Jr.




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Simon, No. 05-0563/MC


    Chief Judge EFFRON delivered the opinion of the Court.

    A special court-martial composed of a military judge sitting

alone, convicted Appellant, pursuant to his plea, of failure to

obey an order, in violation of Article 90, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 890 (2000).   The adjudged

and approved sentence included a bad-conduct discharge,

confinement for forty-five days, and forfeiture of $700.00 pay

per month for two months.   The Navy-Marine Corps Court of

Criminal Appeals affirmed in an unpublished opinion.    United

States v. Simon, No. NMCCA 200500094 (N-M. Ct. Crim. App. Apr.

28, 2005).

     On Appellant’s petition, we granted review of three issues

concerning the post-trial and appellate processing of

Appellant’s case:

     I. WHETHER ERROR OCCURRED IN APPELLANT’S CASE
     WHEN APPELLANT LACKS THE MENTAL CAPACITY TO
     UNDERSTAND AND COOPERATE INTELLIGENTLY IN
     APPELLATE PROCEEDINGS PURSUANT TO RULE FOR
     COURTS-MARTIAL 1203(c)(5) AND WHEN NO INQUIRY WAS
     MADE INTO WHETHER APPELLANT WAS CAPABLE TO ASSIST
     IN HIS DEFENSE PURSUANT TO RULE FOR COURTS-
     MARTIAL 706.

     II. WHETHER APPELLANT WAS DENIED HIS SIXTH
     AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF
     COUNSEL WHEN HIS INITIAL APPELLATE DEFENSE
     COUNSEL FAILED TO ESTABLISH CONTACT WITH THE
     CLIENT, FAILED TO REASONABLY INVESTIGATE HIS
     CASE, AND FAILED TO RAISE POST-TRIAL DELAY AT THE
     LOWER COURT.

     III. WHETHER THE UNREASONABLE DELAY CAUSED BY
     THE GOVERNMENT’S GROSS NEGLIGENCE IN FULFILLING


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United States v. Simon, No. 05-0563/MC


      THE NON-DISCRETIONARY AND MECHANICAL TASK OF
      FORWARDING A RECORD OF TRIAL FOR APPELLATE REVIEW
      VIOLATED THE APPELLANT’S RIGHT TO A SPEEDY POST-
      TRIAL REVIEW.

      For the reasons set forth below, we set aside the decision

of the Court of Criminal Appeals and remand this case for

further consideration.



                                I.    BACKGROUND

                         A.    POST-TRIAL PROCESSING

      The record of trial in Appellant’s case -- in which he pled

guilty to a single disobedience charge -- consisted of thirty-

six pages.     Table I summarizes key events in the post-trial

processing of his case.

                                     TABLE I

EVENT                                      DATE             DAYS     TOTAL
                                                            FROM     DAYS
                                                            PRIOR
                                                            ACTION
Findings and sentence adjudged             Oct. 16, 2002    0        0
Record of trial authenticated by the       Dec. 1, 2002     46       46
military judge
Staff Judge Advocate’s (SJA)               Feb. 10, 2003    71       117
recommendation served on defense
counsel; defense waived response to SJA
Convening authority’s action               July 18, 2003    158      275
Record of trial docketed at the Court of   Feb. 9, 2005     572      847
Criminal Appeals


      Pursuant to Article 70(c), UCMJ, 10 U.S.C. § 870(c) (2000),

an appellate defense counsel was assigned to represent Appellant

before the Court of Criminal Appeals.              The assigned appellate


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United States v. Simon, No. 05-0563/MC


defense counsel submitted the case to the Court of Criminal

Appeals without identifying any errors for consideration by the

court.   As noted above, the Court of Criminal Appeals affirmed

the findings and sentence.


    B.     MATTERS SUBMITTED BY APPELLANT’S NEW DEFENSE COUNSEL

     A new appellate defense counsel was assigned to represent

Appellant before this Court.   According to the brief submitted

by the new appellate defense counsel:

     (1)   Appellant, who suffers from a mental disease, is

unable to participate in the present appeal.

     (2)   As a result of the mental disease, Appellant was

unable to participate in his defense before the Court of

Criminal Appeals.

     (3)   Appellant’s first appellate defense counsel did not

contact him while the case was pending before the Court of

Criminal Appeals.   As a result, Appellant’s first defense

counsel did not learn of Appellant’s mental health issues and

did not bring those issues to the attention of the Court of

Criminal Appeals.

     (4)   There was substantial delay in the post-trial

processing and docketing of the case, but Appellant’s first

defense counsel failed to raise the issue of post-trial delay

before the Court of Criminal Appeals.



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United States v. Simon, No. 05-0563/MC


     (5)   The post-trial and docketing delays were unreasonable

and prejudicial.

     Appellant’s new defense counsel submitted a number of

documents concerning Appellant’s mental condition, including a

medical diagnosis that Appellant suffers from schizoaffective

disorder, and statements from his mother concerning his

treatment and behavior.   The documents refer to delusional

thoughts, self-inflicted injuries, and management of his

behavior with medication.   The documents submitted by the new

appellate defense counsel also indicate that the initial

appellate defense counsel did not contact Appellant while the

case was pending at the Court of Criminal Appeals.   The

Government has not submitted documentation rebutting the

information in these documents.

     Under these circumstances, we shall treat the statements in

the documents as establishing the factual setting of the

appellate proceedings.    See United States v. Ginn, 47 M.J. 236,

250 (C.A.A.F. 1997).   In particular, we shall proceed on the

basis that Appellant has a mental condition that potentially

affects his competence to assist in the present proceedings;

that the same circumstances applied during the proceedings in

this case before the Court of Criminal Appeals; and that the

initial appellate defense counsel did not contact him while the

case was pending before the Court of Criminal Appeals.


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United States v. Simon, No. 05-0563/MC


                          II.   DISCUSSION

     This case involves a guilty plea and a thirty-six page

record.   A total of 847 days elapsed between the completion of

Appellant’s court-martial and the docketing of his appeal at the

Court of Criminal Appeals.   The 572-day period between the

convening authority’s action and docketing at the lower court

represents the most glaring deficiency in the post-trial

processing of this case. Transmission of the record of trial

from the field to the court is a ministerial act, routinely

accomplished in a brief period of time in the absence of special

circumstances.   There are no special circumstances in this case;

indeed, no explanation for the delay has been offered.

Likewise, there is no explanation for the lengthy period -- 275

days -- taken by the convening authority to act on this case.

     The Court of Criminal Appeals has two distinct

responsibilities in addressing appellate delay.   See Toohey v.

United States, 60 M.J. 100, 103-04 (C.A.A.F. 2004).   First, the

court may grant relief for excessive post-trial delay under its

broad authority to determine sentence appropriateness under

Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).   See United

States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002).   Second, as

a matter of law, the court reviews claims of untimely review and

appeal under the Due Process Clause of the Constitution.   U.S.




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United States v. Simon, No. 05-0563/MC


Const. amend. V; see Diaz v. Judge Advocate General of the Navy,

59 M.J. 34, 38 (C.A.A.F. 2003).

     Because a sentence appropriateness analysis under Article

66(c), UCMJ, is highly case specific, the details of a

servicemember’s post-trial situation constitute an important

element of a court’s analysis.    See, e.g., United States v.

Bodkins, 60 M.J. 322, 324 (C.A.A.F. 2004).   Likewise, a due

process review of a claim of unreasonable delay involves a four-

factor analysis in which at least two of the factors concern the

personal post-trial circumstances of the servicemember -– i.e.,

reasons for asserting or not asserting the right to timely

review, and prejudice.   See United States v. Moreno, 63 M.J.

129, 138-41 (C.A.A.F. 2006).   In such cases, the servicemember

may well be the best source of information on these factors.

See, e.g., United States v. Jones, 61 M.J. 80, 82-83 (C.A.A.F.

2005).

     The present case involves a post-trial delay in performing

the routine, nondiscretionary, ministerial task of transmitting

the record from the convening authority to the Court of Criminal

Appeals.   See United States v. Oestmann, 61 M.J. 103, 104

(C.A.A.F. 2005).   The appellate delay was compounded by a

lengthy period between the end of trial and the convening

authority’s action.




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United States v. Simon, No. 05-0563/MC


        The extensive post-trial delays in the present case raise

substantial questions under both a sentence appropriateness and

due process analysis.    At the Court of Criminal Appeals,

however, the initial appellate defense counsel did not assign

any errors.    The unrebutted record on appeal indicates that

counsel had no contact with Appellant while the case was pending

before the lower court.    Further, the unrebutted record

indicates that Appellant suffered from a significant mental

health condition.    In short, the problem of evaluating the

treatment of appellate delay by the lower court is compounded by

questions as to whether the initial appellate counsel was

ineffective by not communicating with Appellant, see United

States v. MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994), and

whether Appellant was mentally competent to participate in the

appellate process before the lower court.    See Rule for Courts-

Martial (R.C.M.) 1203(c)(5).

        Although we could order further inquiry regarding the prior

proceedings at the Court of Criminal Appeals, including whether

Appellant received effective assistance of appellate counsel and

whether Appellant was mentally competent at that earlier time,

we decline to do so where such an inquiry would add further time

to an already lengthy appellate process without addressing the

merits of the ongoing appellate delay issues in the present

case.


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United States v. Simon, No. 05-0563/MC


        Under the circumstances of this case, it is appropriate for

the lower court to conduct a new review under Article 66(c),

UCMJ.    In that review, the court shall expressly address the

question of whether the post-trial delays in the present case

warrant relief either as a matter of sentence appropriateness or

due process.    See Oestmann, 61 M.J. at 104.    The court’s

analysis shall include separate treatment of the issues of

sentence appropriateness and due process for each of the

following periods:    (1) from the conclusion of trial to the

convening authority’s action; (2) from the convening authority’s

action to docketing at the Court of Criminal Appeals; and (3)

the overall period from the conclusion of trial to issuance of

the original decision by the Court of Criminal Appeals.        At the

outset of such further proceedings, the court shall determine --

under the circumstances presented to the court at the time of

such further proceedings -- whether there is a question as to

Appellant’s competence to participate in the appellate

proceedings.    If so, the court shall take appropriate action

under R.C.M. 1203(c)(5).



                           III.   CONCLUSION

        The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is set aside.      The record of trial is

returned to the Judge Advocate General of the Navy for remand to


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United States v. Simon, No. 05-0563/MC

the Court of Criminal Appeals for a review under Article 66(c),

UCMJ.   Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000),

will apply.




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