          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                        Airman First Class PATRICK S. HANBERRY
                                  United States Air Force

                                              ACM S32251

                                            22 October 2015

         Sentence adjudged 8 May 2014 by SPCM convened at Seymour Johnson
         Air Force Base, North Carolina. Military Judge: Shaun S. Speranza (sitting
         alone).

         Approved Sentence: Bad-conduct discharge, confinement for 2 months,
         and reduction to E-1.

         Appellate Counsel for the Appellant: Captain Lauren A. Shure.

         Appellate Counsel for the United States: Captain Tyler B. Musselman;
         Captain Richard J. Schrider; and Gerald R. Bruce, Esquire.

                                                  Before

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          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



MITCHELL, Senior Judge:

       A special court-martial composed of a military judge sitting alone convicted
Appellant, pursuant to his pleas, of drunken operation of a vehicle, divers wrongful use of
marijuana, soliciting another Airman to commit the offense of wrongful interference with
an adverse administrative proceeding, and wrongfully resisting a blood draw, in violation
of Articles 111, 112a, and 134 UCMJ, 10 U.S.C. §§ 911, 912a, 934. The adjudged and
approved sentence consisted of a bad-conduct discharge, confinement for two months,
and a reduction to E-1.
                                       Background

        Appellant was a first-term Airman at his first duty station. The second day of his
court-martial was the day he completed two years of service. Appellant smoked
marijuana twice while on active duty in June and September 2013. Appellant was
selected for a random urinalysis in October 2013. Concerned that his marijuana use
would be detected, he contacted his friend, Airman First Class (A1C) ZB. He asked A1C
ZB to provide him with a urine sample that he could submit in lieu of his own for the
purpose of avoiding the resulting adverse consequences from a sample that was positive
for illicit drugs. A1C ZB, who had previously used marijuana with Appellant on the two
occasions, informed him, “mines [sic] hot too man.”

       On 14 February 2014, Appellant and three other friends decided to enjoy the
nightlife in nearby Goldsboro, North Carolina. They planned ahead and obtained a hotel
room. Appellant and his friends went to two bars in which they consumed beer and
liquor. They also consumed alcoholic beverages at the hotel both before and after they
went to the local bars. After about one hour of sleep, Appellant decided to drive his
friends back to base so they would not be late for work. As he approached the front gate,
Appellant swerved and went over the speed hump at a faster speed than most other
vehicles. When he provided his military identification to the security forces member at
the front gate, Appellant smelled of alcohol and had red, glassy eyes. When he was
asked to perform a field sobriety test, Appellant acted in a vulgar and disrespectful
manner.

        Appellant was later transported to the on-base clinic in order to have his blood
drawn for testing. When the medical technician approached to perform the blood draw,
Appellant refused. He then started kicking, spitting, and physically resisting the
procedure. Three security forces members were required to restrain Appellant.
Appellant finally relented and acquiesced to the procedure. Subsequent testing of his
blood indicated a blood alcohol concentration of .193, in excess of the North Carolina
legal limitation of .08 for those driving a car.

                          Post-Trial Processing Time Standards

       Appellant contends he is entitled to relief for the 31 days between convening
authority action and docketing with this court. Appellant urges us to exercise our
authority to grant relief under United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002).

        We review de novo “[w]hether an appellant has been denied [his] due process
right to a speedy post-trial review . . . and whether [any] constitutional error is harmless
beyond a reasonable doubt . . . .” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F.
2006). A presumption of unreasonable delay arises when docketing with this court
occurs more than 30 days after convening authority action. United States v. Moreno, 63


                                             2                                  ACM S32251
M.J. 129, 142 (C.A.A.F. 2006). Because the time from docketing to the initial decision
violates the Moreno standards, this presumptively unreasonable delay triggers an analysis
of the four factors elucidated in Barker v. Wingo, 407 U.S. 514, 530 (1972), adopted in
Moreno, 63 M.J. at 135. Those factors are “(1) the length of the delay; (2) the reasons for
the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice
to the appellant.” United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005) (citing
Barker, 407 U.S. at 530). Appellant concedes that he did not suffer any prejudice from
the delay in docketing. When there is no showing of prejudice under the fourth Barker
factor, “we will find 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). Having considered the totality of the
circumstances and the entire record, when we balance the other three factors, we find the
post-trial delay in this case to not be so egregious as to adversely affect the public’s
perception of the fairness and integrity of the military justice system. We are convinced
the error is harmless beyond a reasonable doubt.

       However, this does not end our analysis. Having conceded that he cannot
articulate any prejudice, Appellant focuses us on a theory of relief which does not have
that requirement. Article 66(c), UCMJ, 10 U.S.C. § 866(c), empowers appellate courts to
grant sentence relief for excessive post-trial delay without the showing of actual prejudice
required by Article 59(a), UCMJ, 10 U.S.C. § 859(a). Tardif, 57 M.J. at 224;
see also United States v. Harvey, 64 M.J. 13, 24–25 (C.A.A.F. 2006). In United States v.
Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), we identified a list of factors to
consider in evaluating whether Article 66(c), UCMJ, relief should be granted for post-
trial delay. Those factors include how long the delay exceeded appellate review
standards, the reasons for the delay, whether the government acted with bad faith or gross
indifference, evidence of institutional neglect, harm to the appellant or to the institution,
whether relief is consistent with the goals of both justice and good order and discipline,
and whether this court can provide any meaningful relief. Id. No single factor is
dispositive and we may consider other factors as appropriate. Id. After considering the
relevant factors in this case, we determine that no relief is warranted. We find there was
no bad faith or gross negligence in the post-trial processing. We find no evidence of
harm to the integrity of the military justice system. We have the authority to tailor an
appropriate remedy without giving Appellant a windfall. See Tardif, 57 M.J. at 225. We
have expressly considered whether we should reduce some or all of Appellant’s sentence.
Based on our review of the entire record, we conclude that sentence relief under Article
66, UCMJ, is not warranted.




                                             3                                  ACM S32251
                                                 Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. 1 Articles 59(a) and
66(c), UCMJ. Accordingly, the approved findings and sentence are AFFIRMED.



                 FOR THE COURT


                 STEVEN LUCAS
                 Clerk of the Court




1
 We note a minor typographical error in Charge I and its specification (“statue” should be “statute”) and order a
corrected court-martial order.


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