UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
ALDYKIEWICZ, SALUSSOLIA, and WALKER
Appellate Military Judges

UNITED STATES, Appellee
v.
Private EZ ALEJANDRO REYES
United States Army, Appellant

ARMY 20190261

Headquarters, Fort Stewart
David H. Robertson, Military Judge
Colonel Steven M. Ranieri, Staff Judge Advocate

For Appellant: Captain Benjamin A. Accinelli, JA; Captain Catherine E. Godfrey,
JA.

For Appellee: Lieutenant Colonel Wayne H. Williams, JA.

21 February 2020

Per Curiam:

We review this case under Article 66, Uniform Code of Military Justice, 10
U.S.C. § 866 (UCMS). In matters submitted pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), appellant alleges that the 199 days that elapsed between
the pronouncement of the sentence and the convening authority’s final action
constitute an unreasonable post trial delay. We agree. We also find the 91 days that
elapsed between action and referral of appellant’s case to this court to be patently
unreasonable. Accordingly, we grant relief in our decretal paragraph.”

 

* A military judge sitting as a general court-martial convicted appellant, pursuant to
his plea, of a single specification of negligent homicide in violation of Article 134,
UCMJ, 10 U.S.C. § 934. The convening authority approved the adjudged sentence
of confinement for seven months and a bad-conduct discharge.
REYES—ARMY 20190261

Post-trial Delay

Article 66(c), UCMJ imposes an obligation on this court to assess the
appropriateness of appellant’s sentence in light of presumptively unreasonable and
unexplained delay in the post-trial processing of his case. See generally United
States v. Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006); United States v. Tardif, 57
M.J. 219, 224 (C.A.A.F. 2002). The government is accountable for each of the 199
days that elapsed between the 15 April 2019 announcement of the sentence and the
convening authority’s 30 October 2019 action, as well as the 91 days that elapsed
until the case was docketed by this court on 28 January 2020. United States v.
Banks, 75 M.J. 746, 751 (Army Ct. Crim. App. 2016).

A presumption of unreasonable post-trial delay exists when the convening
authority fails to take action within 120 days of completion of trial or when the
record of trial is not docketed by the service court of criminal appeals within 30
days of action. United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). This
court has two distinct responsibilities in addressing post-trial delay. See United
States v. Simon, 64 M.J. 205 (C.A.A.F. 2006). 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 under our broad authority of determining sentence
appropriateness under Article 66(c), UCMJ. See Tardif, 57 M.J. at 225.

Though 199 days and 91 days are presumptively unreasonable post-trial and
post-action delays respectively, in applying the four-factor test in Barker v. Wingo,
407 U.S. 514, 530 (1972), we do not find the delays so egregious that appellant was
denied his due process right to a speedy post-trial review. See Moreno, 63 M.J. at
142. We find the delays unreasonable but not unconstitutional, and now turn to our
“authority under Article 66(c), UCMJ to grant relief for excessive post-trial delay
without a showing of ‘actual prejudice’ within the meaning of Article 59(a).”
Tardif, 57 M.J. at 224 (citing United States v. Collazo, 53 M.J. 721, 727 (Army Ct.
Crim. App. 2000)). We must determine what findings and sentence “should be
approved” based on the facts and circumstances reflected in the record, including the
unexplained and unreasonable post-trial delay.” Tardif, 57 M.J. at 224.

The post-trial processing in this case is not the example of diligence and
efficiency expected of the military, particularly for a case which resulted in a guilty
plea captured in a 138-page transcript. Without explanation, the government
surpassed the prescribed 120-day post-trial clock by 79 days. Perhaps more
concerning is that an additional 91 days elapsed between the convening authority’s
action and docketing of appellant’s case by this court—three times the
presumptively reasonable period of time for docketing to occur. There is no reason
REYES-—ARMY 20190261

it should take three months for the government to mail three short volumes to this
court. The unexplained delays in the post-trial processing of this case warrant relief.

“Incidents of poor administration reflect adversely on the United States Army
and the military justice system.” United States v. Carroll, 40 M.J. 554, 557 1.8
(A.C.M.R. 1994), Reviewing the entire record, and in light of the government's
failure to satisfy its obligation to provide adequate reasons for excessive post-trial
delay, along with the particular facts and circumstances of this case, we find a thirty
day reduction in the sentence appropriate. We take this opportunity to remind all
military justice practitioners that “[djilatory post-trial processing, without an
acceptable explanation, is a denial of fundamental military justice,” and when
presented with excessive and unexplained delays in post-trial processing, this court
will “assur[e] that justice is done.” United States v. Bauerbach, 55 M.J. 501, 507
(Army Ct. Crim. App. 2001).

CONCLUSION

The findings of guilty are AFFIRMED. Reassessing the sentence in
accordance with Tardif, we affirm only so much of the sentence as provides for
confinement for six months and a bad-conduct discharge. 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. 58(b)(c)
and 75(a).

FOR THE COURT:

*

MALCOLM H. SQUIRES, JR.
Clerk of Court
UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
ALDYKIEWICZ, SALUSSOLIA, and WALKER
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Private EZ ALEJANDRO REYES
United States Army, Appellant

ARMY 20190261

IT IS ORDERED THAT, to reflect the true proceedings at the trial of the
above-captioned case,

GENERAL COURT-MARTIAL ORDER NUMBER 14, HEADQUARTERS,
FORT STEWART, FORT STEWART, GEORGIA 31314, dated 30 October 2019,

IS CORRECTED AS FOLLOWS:

BY reflecting the Finding of The Specification, Charge I
as “Guilty as amended.”

DATE: 21 February 2020

FOR THE COURT:

MALCOLM H. SQ py

Clerk of Court
