UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Private E2 JESSE L. PIMENTAL-TORRES
United States Army, Appellant

ARMY 20190044

Headquarters, Fort Stewart
David H. Robertson and John M. Bergen, Military Judges
Lieutenant Colonel Andrew K. Kernan, Acting Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Jack D. Einhorn, JA;
Captain Catherine E. Godfrey, JA (on brief}; Major Jack D. Einhorn, JA; Captain
Catherine E. Godfrey, JA (on reply brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Captain Allison L. Rowley, JA (on brief).

26 August 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FLEMING, Judge:

The government’s unexplained dilatory post-trial processing of appeilant’s case
watrants reducing his sentence to confinement by 60 days. A military judge sitting
as a general court-martial convicted appellant, contrary to his pleas, of one
specification of sexual assault, in violation of Article 120, Uniform Code of Military
Justice, 10 U.S.C. § 920 [UCMJ]. The military judge sentenced appellant to a
dishonorable discharge, confinement for ten months, reduction to the grade of E-1,
and total forfeiture of all pay and allowances. The military judge credited appellant
with 10 days of credit against his sentence to confinement, The convening authority
approved the adjudged sentence.
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We review this case under Article 66, UCMJ. On appeal, appellant’s sole
assignment of error concerns the government’s dilatory post-trial processing. !
Appellant asserts the government allowed 209 days to elapse between the
adjournment of his trial and the convening authority’s action.? Additionally, the
government allowed 141 days to elapse between the convening authority’s action
and the delivery of his case to our court. As we discuss below, the government’s
unexplained and dilatory post-trial processing warrants relief under Article 66(c),
UCM.

BACKGROUND

After the adjournment of appellant’s trial, the government lost the transcript
and failed to provide any details explaining the loss. Despite this negligence, the
government attempted to fix its off-course post-trial ship by creating a new
transcript and issuing a staff judge advocate recommendation within four and a half
months of the trial’s adjournment. The government’s attempt to course-correct
quickly went awry, however, when it took the convening authority approximately
two months to take action after the receipt of appellant’s Rule for Courts-Martial
(RCM) 1105 matters. The post-trial ship sank, much like the Titanic, when the
government took an additional 141 days to deliver a three-volume record of trial to
this court.

LAW AND DISCUSSION

This court has two distinct responsibilities in addressing post-trial delay.
United States v. Simon, 64 M.J. 205, 207 (C.A.A.F. 2006) (citing Toohey v. United
States, 60 M.J. 100, 103-04 (C.A.A.F. 2004)). First, as a matter of law, this court
reviews whether claims of excessive post-trial delay resulted in a due process
violation. See U.S. Const. amend. V; Diaz v. Judge Advocate General of the Navy,
59 M.J. 34, 38 (C.A.A.F. 2003). Second, we may grant an appellant relief for
excessive post-trial delay using our broad authority of determining sentence

 

' We have given full and fair consideration to the matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
find them to be without merit.

* The actual delay attributable to the government during this period is 189 days.
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appropriateness under Article 66(c), UCMJ. See United States v. Tardif, 57 M.J.
219, 225 (C.A.A.F. 2002)).

We review de novo whether appellant has been denied his due process right to a
speedy post-trial review. United States v. Moreno, 63M.J. 129, 135 (C.A.A.F.
2006). A presumption of unreasonable post-trial delay exists when the convening
authority fails to take action within 120 days of completion of trial. /d. at 142. A
similar presumption of unreasonable post-trial delay exists when the record of trial
of a completed court-martial is not docketed by the appropriate service court of
criminal appeals within thirty days of the convening authority’s action. /d. In
Toohey v. United States, our Superior Court adopted the following four-factor
balancing test from Barker vy. Wingo, 407 U.S. 514, 530-32 (1972), which we employ
when a presumption of unreasonable post-trial delay exists, to determine whether the
post-trial delay constitutes a due process violation: “(1} length of the delay; (2)
reasons for the delay; (3) the appellant’s assertion of his right to a timely appeal;
and (4) prejudice to the appellant.” 60 M.J. at 102. In assessing the fourth factor of
prejudice, we consider three sub-factors: “(1) prevention of oppressive incarceration
pending appeal; (2) minimization of anxiety and concern of those convicted awaiting
the outcome of their appeals; and (3) limitation of the possibility that a convicted
person’s grounds for appeal, and his or her defenses in case of reversal and retrial,
might be impaired.” Moreno, 63 M.J. at 138-39 (quoting Rheuark v. Shaw, 628 F.2d
297, 303 n.8 (Sth Cir. 1980)).

At bar, the first two factors weigh in appellant’s favor. The government failed
to provide any reason for the approximate two-month delay for the convening
authority to take action from the receipt of appellant’s RCM 1105 matters or the
even more egregious delay of 141 days to deliver a three-volume record of trial to
this court. See Moreno, 63 M.J. at 142 (presumption of unreasonable post-trial delay
exists when the record of trial has not been received by the service court of criminal
appeals within thirty days of the convening authority’s action). The third factor
weighs in the government’s favor as appellant did not assert his right to a timely
appeal.

Regarding the fourth factor, appellant alleges as his sole grounds of prejudice
that he “had to endure the entirety of his ten-month confinement without access to
appellate counsel.” Appellant’s assertion is not persuasive. See Moreno, 63 M.J. at
140 (requiring “an appellant to show particularized anxiety or concern that is
distinguishable from the normal anxiety experienced by prisoners awaiting an
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appellate decision.”). We acknowledge the post-trial delay likely contributed to
appellant’s anxiety during his appeal, but just as our Superior Court found in United
States v. Toohey, appellant has not alleged a particularized anxiety greater than that
of others awaiting appellate review of their cases. 63 M.J. 353, 361 (C.A.A.F.
2006). Many convicted military prisoners with shorter adjudged confinement
periods complete their confinement before receiving appellate representation or
consideration by this court. In this case, the delay in gaining “access to appellate
counsel” did not cause appellant to be confined for a longer period of time and does
not constitute a “particularized anxiety.” As such, the fourth factor weighs against
appellant.

Absent the fourth factor weighing for appellant, we may find “a due process
violation only when, in balancing the other three [Barker] 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.” Toohey, 63 M.J. at 362.
Under these facts, we do not find the post-trial delay in appellant’s case so egregious
that he was denied his due process rights under Moreno.

We do find, however, that this is an appropriate case to exercise our authority
to grant relief under Article 66(c), UCMJ. See Tardif, 57 M.J. at 224. Having
considered the entire record, particularly noting the egregious and unexplained 141-
day delay, we find that appellant is entitled to relief and a two-month reduction in
sentence to confinement is appropriate.

CONCLUSION

The findings of guilty are AFFIRMED. After determining an appropriate
remedy for the government’s dilatory post-trial processing, in accordance with
Tardif, we affirm only so much of the sentence as provides for a dishonorable
discharge, confinement for eight months, reduction to E-1, and total forfeiture of all
pay and allowances. All rights, privileges, and property, of which appellant has
been deprived by virtue of that portion of the sentence set aside by this decision are
ordered restored. See UCMJ arts. 58b(c) and 75(a).

Senior Judge BURTON and Judge RODRIGUEZ concur.
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FOR THE COURT:

MALCOLM H. SQUIRES, JR.
. Clerk of Court
