           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                            Airman First Class DIMITRI R. SMITH
                                   United States Air Force

                                               ACM 38845

                                               7 June 2016

          Sentence adjudged 8 January 2015 by GCM convened at Mountain Home Air
          Force Base, Idaho. Military Judge: Lyndell M. Powell (sitting alone).

          Approved Sentence: Dishonorable discharge, confinement for 28 months,
          forfeiture of all pay and allowances, and reduction to E-1.

          Appellate Counsel for Appellant: Major Jeffrey A. Davis.

          Appellate Counsel for the United States: Captain Tyler B. Musselman and
          Gerald R. Bruce, Esquire.

                                                  Before

                              MITCHELL, DUBRISKE, and BROWN
                                   Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



DUBRISKE, Judge:

        Appellant, in accordance with his guilty plea, was convicted by a military judge
sitting alone of sexual assault, in violation of Article 120, UCMJ, 10 U.S.C. § 920. Pursuant
to a pretrial agreement, two additional specifications of sexual assault involving the same
victim were dismissed by the Government after acceptance of Appellant’s guilty plea.

        Appellant was sentenced to a dishonorable discharge, 42 months of confinement,
total forfeiture of pay and allowances, and reduction to E-1. The dishonorable discharge
was a mandatory punishment under Article 56, UCMJ, 10 U.S.C. § 856, given the nature
of the offense of which Appellant was found guilty. The convening authority only
approved 28 months of confinement, pursuant to the terms of the pretrial agreement;
otherwise, he approved the sentence as adjudged.

       Appellant now argues on appeal he is entitled to a reduction of his sentence due to
a violation of his right to timely post-trial processing. While the Government’s post-trial
processing of Appellant’s case was far from exemplary, we decline to grant relief in this
particular case.

                               Post-Trial Processing Delays

        Appellant asserts this court should grant him meaningful relief in light of the 158
days that elapsed between the completion of trial and the convening authority’s action.
Under United States v. Moreno, courts apply a presumption of unreasonable delay “where
the action of the convening authority is not taken within 120 days of the completion of
trial.” 63 M.J. 129, 142 (C.A.A.F. 2006). Appellant does not assert any prejudice, and we
independently find Appellant suffered no prejudice from the delay that would authorize
Moreno relief. Appellant instead argues the court should nonetheless grant relief under
United States v. Tardif, 57 M.J. 219, 223–24 (C.A.A.F. 2002).

        Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), this court is empowered “to grant
relief for excessive post-trial delay without a showing of ‘actual prejudice’ within the
meaning of Article 59(a), if it deems relief appropriate under the circumstances.” Id. at
224 (quoting United States v. Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000)). In
United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006), our superior court held that a
service court may grant relief even when the delay was not “most extraordinary.” The
court held, “The essential inquiry remains appropriateness in light of all circumstances,
and no single predicate criteria of ‘most extraordinary’ should be erected to foreclose
application of Article 66(c), UCMJ, consideration or relief.” Id.

        This court set out a non-exhaustive list of factors we consider when evaluating the
appropriateness of Tardif relief 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). Those factors include how long the delay
exceeded appellate review standards, the reasons noted by the Government for the delay,
whether the Government acted with bad faith or gross indifference, evidence of
institutional neglect, harm to the appellant or the institution, the goals of justice and good
order and discipline, and, finally, whether the court can provide any meaningful relief given
the passage of time. Id. No single factor is dispositive, and we may consider other factors
as appropriate. Id.

       The Government justifies the delay by pointing to the post-trial hearing ordered in
this case to correct a typographical error on the charge sheet. In support of this claim, the
Government submitted an affidavit from a base-level judge advocate who explained the


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circumstances surrounding the hearing and the delay it caused to the overall post-trial
processing of the case. The delay from the convening authority’s post-trial hearing order
until transcript authentication by the military judge accounted for only 34 of the 158 days
in this case. Given the relatively short delay caused by the post-trial hearing, the
Government’s reliance on this event as its primary justification for denying Tardif relief is
misplaced.

        Additionally, while the Government’s brief is quick to point out the trial defense
counsel was ultimately responsible for 25 of the 34 days it took to complete the post-trial
hearing, neither the brief, nor its attached affidavit, addresses significant periods of inaction
on the part of the Government. For example, the affidavit notes the numbered air force
legal office identified the need for a post-trial hearing on 9 February 2015. The hearing,
however, was not ordered until 10 March 2015, some 29 days later. Additionally, we note
that, based on the timeline submitted in the Government’s brief, it took over a month from
authentication of the post-trial hearing transcript to author the staff judge advocate’s
recommendation (SJAR) in this case. The addendum to the SJAR was then completed 12
days after submission of clemency matters by Appellant and his defense counsel. The
explanation of these delays, primarily attributed to the numbered air force legal office,
should have been the focus of the Government’s brief and its supporting affidavit.

       On the whole, however, we find the presumptively unreasonable delay does not
merit sentencing relief in this case. While the timeliness concerns and the post-trial
processing errors, as noted in more detail below, provide some evidence of institutional
neglect, we find the majority of factors employed when considering Tardif relief weigh in
favor of the Government in this particular case.

                                Post-Trial Processing Errors

        As with a number of cases docketed with this court, we unfortunately must again
discuss two discrepancies in the post-trial processing documents that impact the accuracy
of the advice provided to the general court-martial convening authority by his staff judge
advocate (SJA). First, while the SJA in his recommendation properly noted the terms of
Appellant’s pretrial agreement required the convening authority to only approve 28 months
of confinement, the SJA then erroneously recommended in the SJAR and its addendum
that the convening authority approve the sentence as adjudged by the court at trial.

       Second, we note the SJAR and its addendum failed to advise the convening
authority of the restrictions on his authority to disapprove both findings and sentence under
Article 60, UCMJ, 10 U.S.C. § 860. Given the date of Appellant’s offense, the convening
authority had no authority to disapprove the guilty finding or reduce Appellant’s punitive
discharge or term of confinement beyond what was agreed upon in the pretrial agreement.
The SJA’s silence is of particular concern in this case given Appellant requested the
convening authority further reduce his sentence to confinement as a form of clemency.


                                               3                                      ACM 38845
        Although we find no prejudice to Appellant from these discrepancies, we once again
remind staff judge advocates and their staffs of the importance of timely and accurate post-
trial processing. See United States v. Parker, 73 M.J. 914, 921 (A.F. Ct. Crim. App. 2014)
(“The Government’s neglectful post-trial processing . . . created an issue where none
should have existed.”). Errors such as the ones made in this case can easily be eliminated
if sufficient attention is dedicated to this important phase of our trial practice.

                                        Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the sentence are
AFFIRMED.



              FOR THE COURT


              LEAH M. CALAHAN
              Clerk of the Court




                                             4                                    ACM 38845
