                       UNITED STATES, Appellee

                                    v.

              George A. CANCHOLA Jr., Lance Corporal
                   U.S. Marine Corps, Appellant

                              No. 06-0902

                       Crim. App. No. 200500538

       United States Court of Appeals for the Armed Forces

                       Decided January 4, 2007

                               PER CURIAM

STUCKY and RYAN, JJ., did not participate.

                                 Counsel

For Appellant:    Lieutenant Richard H. McWilliams, JAGC, USN.

For Appellee: Commander P. C. LeBlanc, JAGC, USN, and Major
Brian K. Keller, USMC.

Military Judge:   P.J. Betz, Jr.


       This opinion is subject to revision before final publication.
United States v. Canchola, No. 06-0902/MC

        PER CURIAM:

        At a special court-martial Lance Corporal George A.

Canchola, Jr., entered guilty pleas to dereliction of duty and

five specifications alleging wrongful use of a controlled

substance in violation of Articles 92 and 112a, Uniform Code of

Military Justice, 10 U.S.C. §§ 892, 912a (2000).    The military

judge sentenced him to a bad-conduct discharge, confinement for

130 days, and reduction to the grade of E-1.    The focus of

Canchola’s Petition for Grant of Review is timely post-trial

processing.    Specifically, of the 1,263 days between sentencing

and the decision of the United States Navy-Marine Corps Court of

Criminal Appeals, it took 783 days before the convening

authority acted upon the record of trial.    Canchola asserts that

the Court of Criminal Appeals erred in finding he was not

denied due process as a result of the post-trial delay in his

case.    Finding good cause, we grant review to determine whether

Canchola was denied his due process right to speedy post-trial

review.1



1
  We grant review of the following issue raised by appellate
defense counsel:

        WHETHER THE LOWER COURT ERRED IN ITS ASSESSMENT OF THE
        BARKER DUE PROCESS POST-TRIAL DELAY FACTORS WHERE:
             A. REGARDING THE SECOND FACTOR, THE COURT
                 DECLARED THAT THERE WOULD BE “EXCLUDABLE
                 DELAY” FOR GOVERNMENT MANPOWER SHORTAGES;
             B. REGARDING THE THIRD FACTOR, THE COURT HELD
                 THAT TRIAL DEFENSE COUNSEL’S CLEMENCY REQUEST

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United States v. Canchola, No. 06-0902/MC

                             Discussion

     We have evaluated Canchola’s claim under the four factors

of 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 timely post-trial review and appeal;

and (4) prejudice.   United States v. Moreno, 63 M.J. 129, 135

(C.A.A.F. 2005); 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).   We agree with the Court of Criminal Appeals

that the delay in this case was facially unreasonable, that

Canchola did not make a timely assertion of his right to speedy

review, and that Canchola has not demonstrated that he was

prejudiced by the delay.    We part from the Court of Criminal

Appeals’ analysis, however, with respect to that court’s

assessment and weighing of the reasons for the delay under the

second factor of the Barker analysis.

     In an addendum to his post-trial recommendation, the staff

judge advocate offered the following with regard to the delays

in post-trial processing:




               DID NOT SERVE TO ASSERT APPELLANT’S RIGHT TO
               TIMELY POST-TRIAL RELIEF; AND
          C.   REGARDING THE FOURTH FACTOR, THE COURT HELD
               THAT APPELLANT WAS NOT PREJUDICED BY THE
               UNREASONABLE DELAY WHERE HIS TRIAL DEFENSE
               COUNSEL WAS DEPLOYED AND UNABLE TO CONTACT
               APPELLANT AT THE TIME CLEMENCY MATTERS CAME
               DUE.

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United States v. Canchola, No. 06-0902/MC

     The defense counsel has addressed the post-trial delay
     in this case and asserted that his client has not
     received justice due to egregious delay. Due to a
     number of unforeseeable events the post-trial review
     process in this case has been unusually lengthy.
     Multiple deployments by the SJA and support judge
     advocates, as well as many of the Convening
     Authorities, in support of Operation Enduring Freedom
     and Operation Iraqi Freedom, and its many follow-on
     missions, have caused severe manpower issues that have
     affected the review process.

The Court of Criminal Appeals addressed this comment as follows:

     We believe that such consideration is demanded by the
     very nature of deployable fighting forces, especially
     when those forces are expected to answer the call to
     arms under austere budget and manpower constraints
     that are a reality in our nation today. There must be
     recognition in the post-trial arena of the concept of
     “excludable delay” for good cause shown, just as it is
     recognized in the pretrial arena. See, Rule for
     Courts-Martial 707(c), Manual for Courts-Martial,
     United States (2005 ed.); United States v. Longhofer,
     29 M.J. 22 (C.M.A. 1989).

United States v. Canchola, __ M.J. ___, ___ (N.M. Ct. Crim. App.

2006).

     We agree that the high demands placed upon military

personnel in supporting the national interests of the United

States, particularly in combat or hostile environments, is an

appropriate consideration when assessing the post-trial delay

factors under the Barker analysis.   Where operational

requirements affect post-trial processing delays, staff judge

advocates and convening authorities should ensure that those

reasons are documented in the record of trial.   Moreno, 63 M.J.

at 143.   Reviewing courts can then weigh and balance those



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United States v. Canchola, No. 06-0902/MC

reasons in determining whether they provide adequate explanation

for any apparent post-trial delays.    However, a general reliance

on budgetary and manpower constraints will not constitute

reasonable grounds for delay nor cause this factor to weigh in

favor of the Government.2    See id. at 137.

     In this case the staff judge advocate’s proffered

explanation is too general to demonstrate that the

“unforeseeable events” had a reasonably direct impact on the

timeliness of post-trial processing.    In particular, after the

military judge authenticated the record of trial, 503 days

elapsed before the staff judge advocate’s recommendation was

prepared.   The post-trial recommendation is barely four pages

long and contains nothing that appears to be unusual or to have

warranted substantial additional preparation time.    The record

upon which that recommendation is based is a fifty-nine page

guilty plea.   In short, the proffered general explanation for

this glaring delay in reviewing a relatively simple case does

not withstand scrutiny.     We conclude that the absence of reasons




2
  The Court of Criminal Appeals’ attempt to adopt a concept of
“excludable delay” similar to that embodied in Rule for Courts-
Martial 707(c) is also inappropriate. Review and balancing of
the Barker factors, as set forth in our recent appellate delay
jurisprudence, provide a sufficient framework for determining
whether a due process violation has occurred. See generally
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2005); 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).

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United States v. Canchola, No. 06-0902/MC

for the delay in post-trial processing causes this factor to

weigh somewhat in Canchola’s favor.

     Our balancing of the Barker factors in cases where we have

found no prejudice under the fourth prong will result in “a due

process violation only when, in balancing the other three

factors, the delay is so egregious that tolerating it would

adversely affect the public’s perception of the fairness and

integrity of the military justice system.”    United States v.

Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).     In light of this

standard, we agree with the Court of Criminal Appeals’

conclusion that Canchola was not denied his due process right to

timely post-trial review and speedy appeal.

                            Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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