               U NITED S TATES AIR F ORCE
              C OURT OF C RIMINAL APPEALS
                           ________________________

                                No. ACM 39176
                           ________________________

                              UNITED STATES
                                  Appellee
                                       v.
                       Phillip J. VALADEZ II
           Airman First Class (E-3), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 22 March 2018
                           ________________________

Military Judge: Shelly Schools (arraignment); Marvin W. Tubbs II.
Approved sentence: Dishonorable discharge, confinement for 22 years,
reduction to E-1, and a reprimand. Sentence adjudged 14 June 2016 by
GCM convened at Goodfellow Air Force Base, Texas.
For Appellant: Lieutenant Colonel R. Davis Younts, USAF; Major
Mark C. Bruegger, USAF; Major Patricia Encarnación Miranda,
USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mary
Ellen Payne, USAF; Major Meredith L. Steer, USAF.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.

                           ________________________

    This is an unpublished opinion and, as such, does not serve as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


PER CURIAM:
    A general court-martial convicted Appellant, in accordance with his pleas,
of one specification of false official statement, two specifications of sexual as-
sault, three specifications of aggravated assault, one specification of assault
                    United States v. Valadez, No. ACM 39176


consummated by a battery, and one specification of kidnapping, in violation
of Articles 107, 120, 128, and 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 907, 920, 928, 934. Officer members sentenced Appellant to a
dishonorable discharge, confinement for 31 years and 166 days, forfeiture of
all pay and allowances, reduction to the grade of E-1, and a reprimand. In
accordance with the pretrial agreement, the convening authority approved
only 22 years of confinement. The convening authority also disapproved the
adjudged forfeitures, deferred Appellant’s automatic forfeiture of pay until
action, and then waived the automatic forfeiture of pay for six months for the
benefit of Appellant’s dependent spouse. See Articles 57a and 58b, UCMJ, 10
U.S.C. §§ 857a, 858b. The convening authority approved the remaining por-
tions of the adjudged sentence.
   This case was submitted to us on its merits with no assignments of error.
We nevertheless address the facially unreasonable delay in the post-trial pro-
cessing of Appellant’s case. We find no error materially prejudicial to Appel-
lant’s substantial rights and we affirm the findings and sentence.
    Appellant’s court-martial concluded on 14 June 2016, and the convening
authority took action on 1 November 2016. This 140-day period exceeded the
120-day threshold for a presumptively unreasonable post-trial delay estab-
lished by the United States Court of Appeals for the Armed Forces (CAAF) in
United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Accordingly, we
have considered the four factors identified in Moreno to assess whether Ap-
pellant’s due process right to timely post-trial and appellate review has been
violated. 1 Id. at 135 (citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F.
2005), United States v. Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004)).
    Where, as here, there is no discernible prejudice from the delay, there is
no due process violation unless the delay is so egregious as to “adversely af-
fect 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). Consider-
ing the relevant factors together, we conclude that the 140 days that elapsed
between the conclusion of trial and the convening authority’s action does not
meet that threshold.
    Recognizing our authority under Article 66(c), UCMJ, we have also con-
sidered whether relief for excessive post-trial delay is appropriate in this case
even in the absence of a due process violation. See United States v. Tardif, 57


1 These factors include: (1) the length of the delay; (2) the reasons for the delay; (3)
the appellant’s assertion of his right to a timely review; and (4) prejudice to the ap-
pellant. Moreno, 63 M.J. at 135 (internal citations omitted).




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                    United States v. Valadez, No. ACM 39176


M.J. 219, 225 (C.A.A.F. 2002). After considering the factors enumerated 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), we conclude it is not. 2 On the whole, the processing
of Appellant’s case has not been subjected to excessive post-trial delay, and
we perceive no substantial harm to Appellant, prejudice to the interests of
justice or discipline, or erosion of this court’s ability to conduct our review or
grant appropriate relief that would move us to modify an otherwise fitting
sentence.
    The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to Appellant’s substantial rights occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the ap-
proved findings and sentence are AFFIRMED. 3


                       FOR THE COURT



                       CAROL K. JOYCE
                       Clerk of the Court




2 These factors include: (1) how long the delay exceeded the standards set forth in
Moreno; (2) what reasons, if any, the Government set forth for the delay, and wheth-
er there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) keeping in mind that our goal under Tardif is not to analyze
for prejudice, whether there is nonetheless some evidence of harm (either to the ap-
pellant or institutionally) caused by the delay; (4) whether the delay has lessened the
disciplinary effect of any particular aspect of the sentence, and is relief consistent
with the dual goals of justice and good order and discipline; (5) whether there is any
evidence of institutional neglect concerning timely post-trial processing, either across
the service or at a particular installation; and (6) given the passage of time, whether
this court can provide meaningful relief in this particular situation. Gay, 74 M.J. at
744.
3 We also note that the Court-Martial Order (CMO) of 1 November 2016 failed to in-
clude forfeiture of all pay and allowances as part of the adjudged sentence. We find
no prejudice, but order the promulgation of a corrected CMO.




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