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

                            No. ACM 39001 (reh)
                           ________________________

                              UNITED STATES
                                  Appellee
                                       v.
                          David R. ALLEN
            Master Sergeant (E-7), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                            Decided 24 June 2020
                           ________________________

Military Judge: Mark F. Rosenow (rehearing).
Approved sentence: Reduction to the grade of E-5 and a reprimand.
Sentence adjudged 26 June 2018 by GCM convened at Ramstein Air
Base, Germany.
For Appellant: Brian L. Mizer, Esquire.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Anne
M. Delmare, USAF; Mary Ellen Payne, Esquire.
Before MINK, LEWIS and D. JOHNSON, Appellate Military Judges.
Senior Judge MINK delivered the opinion of the court, in which Judge
LEWIS and Judge D. JOHNSON joined.
                           ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                       ________________________
MINK, Senior Judge:
    This case is before us for the second time. In October 2015, a general
court-martial composed of officer members found Appellant guilty, contrary
to his pleas, of dereliction of duty by willfully failing to refrain from pursuing
an unprofessional sexual relationship with two junior Airmen, including
                  United States v. Allen, No. ACM 39001 (reh)


Airman First Class (A1C) CG, in violation of Article 92(3), Uniform Code of
Military Justice (UCMJ), 10 U.SC. § 892(3); dereliction of duty by willfully
failing to refrain from pursuing an unprofessional dating relationship with
two other junior Airmen, also in violation of Article 92(3), UCMJ; and for
sexually assaulting A1C CG, in violation of Article 120, UCMJ, 10 U.S.C.
§ 920. 1 The court-martial sentenced Appellant to a bad-conduct discharge,
confinement for one year, reduction to the grade of E-3, and a reprimand. The
convening authority approved the adjudged sentence. In his initial appeal to
this court, Appellant raised numerous assignments of error, and we granted
relief as to two of them by setting aside the Article 92(3), UCMJ, dereliction
of duty conviction with respect to A1C CG and the Article 120, UCMJ, sexual
assault conviction because the evidence was factually insufficient to support
either conviction. We affirmed the remaining three Article 92(3), UCMJ, der-
eliction of duty offenses, but we also set aside the sentence and authorized a
rehearing on the sentence. United States v. Allen, No. ACM 39001, 2017 CCA
LEXIS 549 (A.F. Ct. Crim. App. 11 Aug. 2017) (unpub. op.). Appellant had
already served his sentence to confinement before our decision on his original
appeal was released on 11 August 2017 and Appellant was not placed in pre-
trial confinement while awaiting his rehearing on the sentence.
    On 7 May 2018, the general court-martial convening authority ordered a
rehearing for the purpose of sentencing Appellant. The rehearing was held at
Ramstein Air Base, Germany from 25–26 June 2018. A general court-martial
composed of a military judge alone sentenced Appellant for the previously
affirmed dereliction of duty offenses. The adjudged and approved sentence
consisted of a reduction to the grade of E-5 and a reprimand. 2
    Appellant now asserts three assignments of error: (1) whether Appellant
was denied due process of law when the military judge repeatedly refused to
consider Appellant’s previous confinement before adjudging the sentence in
this case as required by United States v. Allen, 17 M.J. 126 (C.M.A. 1984) and
the Manual for Courts-Martial; (2) whether Appellant was afforded conflict-
free trial defense counsel when the military judge announced that immediate-
ly following Appellant’s court-martial, trial defense counsel would be getting

1These offenses of which Appellant was found guilty are from the Manual for Courts-
Martial, United States (2012 ed.). All other references in this opinion to the Uniform
Code of Military Justice (UCMJ) and the Rules for Courts-Martial (R.C.M.) are from
the Manual for Courts-Martial, United States (2016 ed.), unless otherwise indicated.
2 A “post-findings, pre-sentencing agreement” between Appellant and the convening
authority was entered into prior to the rehearing on sentence but it had no impact on
the sentence that the convening authority could approve.




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                   United States v. Allen, No. ACM 39001 (reh)


an “opportunity . . . for professional development” by serving as the military
judge’s understudy in another court-martial later that week “which would
make it easier for him to become a serving military judge;” 3 and (3) whether
Charge I and the specifications thereunder are void for vagueness. 4 We also
address whether Appellant is entitled to relief due to facially unreasonable
post-trial delay. We find no prejudicial error and affirm the sentence.

                                   I. DISCUSSION
A. Prior Punishment
    1. Additional Background
    Prior to Appellant’s selection of forum, the military judge advised counsel
for both parties not to “improperly disclose” the adjudged or approved sen-
tence from Appellant’s original court-martial to the court members if Appel-
lant selected that forum for his rehearing. The military judge also stated that
if Appellant selected trial by military judge alone as the forum for the rehear-
ing, he would not consider the approved or adjudged sentence from Appel-
lant’s original trial, even though he was aware of both, when deciding an ap-
propriate sentence for the offenses for which Appellant was being sentenced.
    The military judge advised Appellant that the maximum sentence that
could be adjudged at the rehearing for the offenses for which he was being
sentenced was a bad-conduct discharge, forfeiture of all pay and allowances,
confinement for 18 months, and reduction to the lowest enlisted grade. The
military judge also advised Appellant that because this proceeding was a re-
hearing on sentence, the convening authority could not approve a sentence
that exceeded the sentence approved by the convening authority following the
original trial. After Appellant elected trial by military judge alone pursuant
to a provision in his “post-findings, pre-sentencing agreement,” both trial
counsel and trial defense counsel agreed that Appellant was not to be credit-
ed with any pretrial confinement on the charge sheet.


3We have carefully considered this second issue Appellant raises regarding whether
he was provided conflict-free trial defense counsel and determine this issue is with-
out merit and warrants no discussion or relief. See United States v. Matias, 25 M.J.
356, 361 (C.M.A. 1987).
4 As Appellant correctly notes, this third assignment of error was fully briefed and
rejected by this court in 2017. In his brief, Appellant states that this issue was raised
again only to preserve this issue where the United States Court of Appeals for the
Armed Forces (CAAF) denied review of this error without prejudice. We decline to
reconsider our previous decision on this assignment of error.




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                  United States v. Allen, No. ACM 39001 (reh)


    Later, when the trial defense counsel moved to admit a character state-
ment as Defense Exhibit C for identification, trial counsel objected to one
sentence in paragraph 6 of the document on the basis that it improperly “al-
lude[d] to the prior punishment in the former proceeding.” Trial defense
counsel responded that the statement referred to the length of time that had
passed from the previous court-martial until the rehearing and did not per-
tain to the time Appellant spent in post-trial confinement. Overruling the tri-
al counsel’s objection, the military judge stated:
       I’ve already made it clear on the record how this court will not
       consider any of the previous punishments in this case in de-
       termining what an appropriate sentence is for [Appellant] for
       the offenses of which he remains convicted. The rules are clear
       as well, that the parties may not and should not make refer-
       ence to those punishments.
The military judge admitted the exhibit as marked “for the narrow purpose
put forth by the defense counsel.”
    When discussing the proposed defense sentencing evidence, including Ap-
pellant’s unsworn statement, the military judge addressed varied references
to the time Appellant spent in post-trial confinement following the original
trial. The military judge stated:
       It’s fairly clear to me, based on the procedural guide,[ 5] the cas-
       es that are cited inside the procedural guide as well as the
       plain language under R.C.M. 810(d) that this court should not
       be focused on what was previously adjudged or approved but
       instead on what the authorized punishments are available in
       this case and what an appropriate sentence is for [Appellant]
       for the three offenses that he remains convicted of. And I will
       only deliberate in that manner as I’ve described.
   Appellant asserts that the military judge erred when deciding Appellant’s
sentence at the rehearing because the military judge failed to consider the
“year in confinement” Appellant served following his initial court-martial.
Appellant specifically contends that the “year” he spent in confinement as a
result of his original sentence constituted pretrial confinement that the mili-
tary judge was required to consider pursuant to Rule for Courts-Martial


5 In referring to the “procedural guide,” the military judge was apparently referenc-
ing Department of the Army (DA) Pamphlet 27-9, otherwise known as the Military
Judge’s Benchbook, as modified for use in Air Force trial practice.




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                  United States v. Allen, No. ACM 39001 (reh)


(R.C.M.) 1001(b)(1) and the failure to do so constituted a deprivation of due
process of law. We disagree. 6
    2. Law
     We review a military judge’s admission or exclusion of evidence, including
sentencing evidence, for an abuse of discretion. United States v. Stephens, 67
M.J. 233, 235 (C.A.A.F. 2009) (citing United States v. Manns, 54 M.J. 164,
166 (C.A.A.F. 2000)). “The abuse of discretion standard is a strict one, calling
for more than a mere difference of opinion. The challenged action must be
‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly erroneous.’” United
States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (citing United States v.
Miller, 46 M.J. 63, 65 (C.A.A.F. 1997); United States v. Travers, 25 M.J. 61,
62 (C.M.A. 1987)). “A military judge abuses his discretion when: (1) the find-
ings of fact upon which he predicates his ruling are not supported by the evi-
dence of record; (2) if incorrect legal principles were used; or (3) if his applica-
tion of the correct legal principles to the facts is clearly unreasonable.” United
States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citing United States v. Mack-
ie, 66 M.J. 198, 199 (C.A.A.F. 2008)).
   Limitations on sentence as a result of rehearing are addressed in R.C.M.
810(d), which states, in pertinent part, that
       offenses on which a rehearing . . . has been ordered shall not be
       the basis for an approved sentence in excess of or more severe
       than the sentence ultimately approved by the convening or
       higher authority following the previous trial or hearing, unless
       the sentence prescribed for the offense is mandatory.
    The Discussion to the Rule further states:
       At a rehearing, the trier of fact is not bound by the sentence
       previously adjudged or approved. The members should not be
       advised of the sentence limitation under this rule. See R.C.M.
       1005(e)(1). An appropriate sentence on a retried or reheard of-
       fense should be adjudged without regard to any credit to which
       [Appellant] may be entitled.




6 The Government argues that Appellant waived or forfeited this issue at trial. Ap-
pellant contends that the record does not support forfeiture, much less waiver of this
issue. We chose to address the substance of this issue.




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                 United States v. Allen, No. ACM 39001 (reh)


   3. Analysis
     Appellant does not contend that the military judge erred by following the
“non-binding Discussion’s guidance” that the sentencing authority not con-
sider the adjudged or approved sentence from the prior trial. Instead, Appel-
lant argues that the military judge was required to consider the punishment,
i.e., the “year in confinement” that Appellant had already served in determin-
ing a sentence at the rehearing, because it constituted pretrial confinement.
Appellant correctly states that R.C.M. 1001(b)(1) requires the trial counsel to
inform the sentencing authority of the “duration and nature of any pretrial
restraint.” However, as the military judge, trial counsel, and trial defense
counsel all agreed during the rehearing, the time Appellant spent in confine-
ment as a result of his approved sentence following his original trial was not
“pretrial confinement.” We are not persuaded by Appellant’s argument that
the time he spent in post-trial confinement as a result of his original ap-
proved sentence should have been considered in the same manner as pretrial
confinement or restraint.
    The question of whether a court-martial should consider post-trial con-
finement served by an appellant during a rehearing on sentence has been
previously addressed by this court. In United States v. Rhodes, 64 M.J. 630,
632 (A.F. Ct. Crim. App. 2007), aff’d, 65 M.J. 310 (C.A.A.F. 2007), while pre-
senting his unsworn statement during his rehearing on sentence before of-
ficer members, the appellant revealed that he had spent ten months in post-
trial confinement as a result of his original court-martial conviction. The trial
counsel then introduced the appellant’s entire approved sentence from the
original trial in rebuttal to the appellant’s unsworn statement. Id. This court
held that the “evidence of the sentence from the previous court-martial
should not have been presented by either party to the members at the rehear-
ing. It directly assault[ed] their ability to arrive at an independent and unbi-
ased sentence based solely on the evidence presented to them under the Rules
for Courts-Martial.” Id. Tacitly apparent in the court’s decision was the un-
derstanding that the post-trial confinement served by the appellant did not
constitute pretrial confinement for purposes of the rehearing. We see no basis
to depart from the court’s rationale in Rhodes, even in the context of sentenc-
ing by military judge alone. We do, however, acknowledge that there may be
some circumstance where evidence related to an appellant’s time in prior
post-trial confinement could constitute proper evidence for consideration in
mitigation, but we find no such circumstances in this case. We find that the
military judge did not abuse his discretion in refusing to consider Appellant’s
adjudged or approved sentence from the prior court-martial or the time that
Appellant spent in post-trial confinement when deciding the sentence at the
rehearing.



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                 United States v. Allen, No. ACM 39001 (reh)


    Appellant was nonetheless entitled to receive the benefit for the time that
he spent in post-trial confinement. As noted above, the maximum sentence
that could be approved by the convening authority after the rehearing was
limited to the original sentence approved by the convening authority. With-
out question, Appellant would have been entitled to receive day-for-day credit
for the entire time he spent in post-trial confinement following his original
court-martial. See Allen, 17 M.J. at 128. In other words, even if the military
judge had sentenced Appellant to the maximum confinement permitted—18
months—the convening authority could have only approved 1 year of con-
finement, and Appellant would have been credited for the confinement he al-
ready served. In fact, the action of the convening authority stated, “[Appel-
lant] will be credited with any portion of the sentence as approved that was
served as the result of a previous court-martial.” Moreover, even assuming
arguendo that the military judge erred by not considering the time Appellant
spent in post-trial confinement as a result of his previous trial in determining
an appropriate sentence at the rehearing, the military judge sentenced Ap-
pellant to no confinement, and Appellant therefore suffered no prejudice.
B. Post-Trial Delay
   1. Additional Background
    Appellant was sentenced at the rehearing on 26 June 2018 and the con-
vening authority took action on the new sentence on 22 October 2018. Appel-
lant’s case was then docketed with this court on 26 November 2018, 35 days
after the convening authority took action on the new sentence, and this opin-
ion was issued more than 18 months after docketing.
   2. Law
    We review de novo whether an appellant has been denied the right to due
process and a speedy post-trial review and appeal. United States v. Moreno,
63 M.J. 129, 135 (C.A.A.F. 2006) (citations omitted). In Moreno, the United
States Court of Appeals for the Armed Forces (CAAF) established a presump-
tion of facially unreasonable delay when the convening authority does not
take action within 120 days of trial, when a record of trial is not docketed
with the Court of Criminal Appeals within 30 days of the convening authori-
ty’s action, and when the Court of Criminal Appeals does not render a deci-
sion within 18 months of the case being docketed. Id. at 142. Where there is
such a delay, we examine the four factors 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 his right to a timely review; and (4) prejudice
[to the appellant].” Moreno, 63 M.J. at 135 (citing United States v. Jones, 61
M.J. 80, 83 (C.A.A.F. 2005); Toohey v. United States, 60 M.J. 100, 102
(C.A.A.F. 2004) (per curiam)). “No single factor is required for finding a due


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process violation and the absence of a given factor will not prevent such a
finding.” Id. at 136 (citing Barker, 407 U.S. at 533). However, where an ap-
pellant has not shown prejudice from the delay, there is no due process viola-
tion unless the delay is so egregious as to “adversely affect the public’s per-
ception of the fairness and integrity of the military justice system.” United
States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
   3. Analysis
    Although Appellant does not raise post-trial delay as an error, we note
that the 35 days that elapsed between the action of the convening authority
and docketing with this court exceeded by five days the 30-day standard for a
presumptively unreasonable post-trial delay. See Moreno, 63 M.J. at 142. In
addition, we note that over 18 months elapsed between the docketing of Ap-
pellant’s case with this court and the issuance of this opinion, which is also a
presumptively unreasonable delay. See id. Therefore, we have considered the
four Barker factors to determine whether Appellant’s due process right to
timely post-trial and appellate review has been violated in this case. We find
it has not.
    In Moreno, the CAAF identified three types of cognizable prejudice for
purposes of an Appellant’s due process right to timely post-trial review: (1)
oppressive incarceration; (2) anxiety and concern; and (3) impairment of the
appellant’s ability to present a defense at a rehearing. Id. at 138–39 (citations
omitted). In this case, we find no oppressive incarceration because Appellant
was not sentenced to any confinement at his rehearing. Nor do we discern
any impairment of Appellant’s ability to present a defense at a rehearing. In
addition, Appellant raises no potential impairment as to a sentencing rehear-
ing arising from the delay, and we perceive none.
    As for anxiety and concern, the CAAF has explained “the appropriate test
for the military justice system is to require an appellant to show particular-
ized anxiety or concern that is distinguishable from the normal anxiety expe-
rienced by prisoners awaiting an appellate decision.” Id. at 140. Appellant
has asserted no such particularized concern.
    Where, as here, there is no qualifying 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 sys-
tem.” Toohey, 63 M.J. at 362. We do not find such an egregious delay here,
and we find no violation of Appellant’s due process rights. This court is issu-
ing its opinion within one month of the Moreno date.
    Recognizing our authority under Article 66(c), UCMJ, we have also con-
sidered whether relief for excessive post-trial delay is appropriate even in the
absence of a due process violation. See United States v. Tardif, 57 M.J. 219,


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                 United States v. Allen, No. ACM 39001 (reh)


225 (C.A.A.F. 2002). Applying the factors articulated 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 that the time taken to review Appellant’s case is not un-
reasonable and relief based on the delay is unwarranted.

                              II. CONCLUSION
    The approved findings were previously affirmed. The approved sentence
is correct in law and fact, and no error materially prejudicial to the substan-
tial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C.
§§ 859(a), 866(c). Accordingly, the approved sentence is AFFIRMED.


                    FOR THE COURT



                    CAROL K. JOYCE
                    Clerk of the Court




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