             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                              UNITED STATES

                                                        v.

                              Airman Basic BRENNEN C. SNODGRASS
                                      United States Air Force

                                                 ACM S32274

                                               14 January 2016

            Sentence adjudged 27 August 2014 by SPCM convened at Keesler Air
            Force Base, Mississippi. Military Judge: Matthew S. Ward (sitting alone).

            Approved Sentence: Bad-conduct discharge, confinement for 6 months,
            and forfeiture of $1000.00 pay per month for 10 months.

            Appellate Counsel for the Appellant: Major Jeffrey A. Davis.

            Appellate Counsel for the United States: Major Mary Ellen Payne; Gerald
            R. Bruce; and Tyler Smith (civilian intern).1

                                                     Before

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             This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



SANTORO, Judge:

       A military judge sitting alone as a special court-martial convicted Appellant,
consistent with his pleas, of violating an order, divers wrongful uses of cocaine and
marijuana, larceny, and breaking restriction, in violation of Articles 92, 112a, 121, and
134, UCMJ, 10 U.S.C. §§ 892, 912a, 921, and 934. The adjudged and approved sentence
was a bad-conduct discharge, confinement for 6 months, and forfeiture of $1,000 pay per

1
 Mr. Tyler Smith was not a licensed attorney during his participation in this case. In accordance with AFCCA Rule
of Practice and Procedure 6.1, he was supervised by attorneys admitted to practice before this court.
month for 10 months.2 Appellant requests relief for post-trial processing delays. We
decline to grant relief and affirm.

                                                Background

        Appellant admitted to using crack cocaine 10–15 times and powdered cocaine 3–4
times with fellow Airmen. When Appellant expressed interest in breaking his cocaine
habit, one of his friends suggested that he try marijuana instead. Although he smoked
marijuana approximately 4–5 times during the charged time frame, it did not eliminate
his cocaine addiction. He stole an acoustic guitar, a PlayStation 3 and games, a
television, and 12 DVDs from his dormitory suitemate to support his drug habit.

       Appellant also violated his base commander’s order not to enter a local
establishment that sold drug paraphernalia and that had been determined to be prejudicial
to good order and discipline (on the “off-limits” list). Additionally, Appellant left base to
meet with his drug supplier, violating a restriction imposed upon him pursuant to Article
15, UCMJ, 10 U.S.C. § 815, for missing an ADAPT (Alcohol and Drug Abuse
Prevention and Treatment) appointment.

        Additional facts necessary to resolve the assignment of error are included below.

                                          Post-Trial Processing

       Appellant argues that the 35-day period between convening authority action and
the forwarding of the case for our review warrants “meaningful relief,” although no
specific relief is requested. See United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F.
2006). Following Moreno, the record of trial should have been docketed by this court
within 30 days of the convening authority’s action. Id. at 142.

        We review de novo Appellant’s claim that he has been denied the due process
right to a speedy post-trial review and appeal. Id. at 135. Here, the 35-day delay period
triggers a presumption of unreasonable delay. Id. at 142. This requires us to examine the
claim under 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 the
right to timely review and appeal; and (4) prejudice. Moreno, 63 M.J. at 135. If we are
able to conclude directly that any error was harmless beyond a reasonable doubt, we do
not need to engage in a separate analysis of each factor. See United States v. Allison, 63
M.J. 365, 370–71 (C.A.A.F. 2006).


2
  The court-martial order (CMO) failed to include the words “forfeiture of” before the dollar amount and term the
forfeitures were to run. The military judge properly announced the sentence and the convening authority’s action
indicated that the sentence announced by the military judge was approved. We therefore conclude that the omission
was an administrative error and order the completion of a corrected CMO.


                                                       2                                           ACM S32274
       Appellant does not argue that he has been personally prejudiced by the delay.
Instead, he urges us to provide relief to send a message to staff judge advocates that
delays in post-trial processing will not be tolerated. Moreno identified three types of
prejudice arising from post-trial processing delay: (1) oppressive incarceration,
(2) anxiety and concern, and (3) impairment of ability to present a defense at a rehearing.
Id. at 138–39. None are present or alleged in this case. While we agree that Moreno
violations are unacceptable, we find beyond a reasonable doubt that Appellant was not
harmed by the 35-day period from action to docketing and is thus not entitled to relief
under Moreno.

        However, that does not end the inquiry, as we may grant sentence relief under
Article 66(c), UCMJ, 10 U.S.C. § 866(c), even when we find no prejudice in
unreasonable post-trial delays. United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002); see
also United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006) (finding delays were
“such that tolerating them would adversely affect the public’s perception of the fairness
and integrity of the military justice system). However, “[a]ppellate relief under Article
66(c) should be viewed as the last recourse to vindicate, where appropriate, an appellant’s
right to timely . . . review.” Tardif, 57 M.J. at 225.

       The Government submitted an affidavit from the special court-martial convening
authority’s chief of military justice. The affidavit contains a timeline of the post-trial
processing actions taken in this case, including coordination with the general court-
martial convening authority’s staff judge advocate. Significant for our Tardif analysis is
the fact that the processing time exceeded the Moreno standard by only five days, that the
record of trial was forwarded for docketing with this court 28 days after action, and that
we find no evidence of bad faith, gross negligence, or institutional neglect.

       We have reviewed the entirety of the post-trial processing, including each of the
steps identified by Moreno and the “non-exhaustive” list of factors we analyze when
considering Tardif relief. United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App.
2015). We do not believe Tardif relief is warranted under the facts of this case.

                                       Conclusion

       The 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).




                                             3                                  ACM S32274
Accordingly, the findings and sentence are

                                     AFFIRMED.



             FOR THE COURT


             LEAH M. CALAHAN
             Clerk of the Court




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