         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                       _________________________

                           No. 201400230
                       _________________________

                UNITED STATES OF AMERICA
                               Appellee
                                   v.
                       RONALD MONTANO
              Master Sergeant (E-8), U.S. Marine Corps
                             Appellant
                      _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

      Military Judge: Colonel Michael B. Richardson, USMC.
 For Appellant: Lieutenant Colonel Richard A. Viczorek, USMCR.
   For Appellee: Major Tracey L. Holtshirley, USMC; Lieutenant
 James M. Belforti, JAGC, USN; Lieutenant Ann E. Dingle, JAGC,
                               USN.
                     _________________________

                     Decided 15 November 2016
                      _________________________

Before C AMPBELL , R UGH , and H UTCHISON , Appellate Military Judges
                       _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

RUGH, Judge:

   A military judge, sitting as a special court-martial, convicted the
appellant in accordance with his pleas of attempted indecent visual
recording and making a false official statement in violation of Articles
80 and 107, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and
907 (2012). The military judge sentenced the appellant to nine months’
confinement, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority (CA) approved the sentence as
adjudged on 6 June 2014.
    The appellant originally raised three assignments of error (AOE):
(1) that the original staff judge advocate’s recommendation (SJAR) was
deficient; (2) that the appellant was denied the effective assistance of
counsel during his original opportunity to submit clemency; and (3)
that his sentence was inappropriately severe. On 14 May 2015 we
agreed with the appellant’s first AOE, set aside the original CA’s
action, and returned the record for new post-trial processing.
   On 2 September 2015, the CA again approved the sentence as
adjudged. On 26 October 2015 the appellant raised as supplemental
AOE (4) that the new SJAR was again deficient. The government
conceded the error, and we agreed, setting aside the second CA’s action
and returning the record for new post-trial processing on 25 November
2015.
   On 24 February 2016, the CA approved the sentence as adjudged
once again. The record was re-docketed with this court on 29 April
2016.
   In addition to AOE (3), the appellant now raises as error that he
was denied the due process of law because of the untimely review of his
appeal.1 Having carefully considered the record of trial and the
pleadings, we find no error materially prejudicial to the appellant’s
substantial rights and affirm the findings and sentence, as approved
by the CA below.
                                 I. BACKGROUND
   The appellant and Major KM shared an office while serving as the
operations chief and the operations officer for an aircraft wing located
on board Marine Corps Air Station Miramar, California. They
maintained a professional relationship despite having to share a “very
tight space.”2
   On 5 June 2013, as Major KM was preparing to secure for the
evening, the appellant asked her if she was going to change clothing in
the office before going home. When Major KM responded “no,” he
commented, “but you always change.”3 The next day, after Major KM
indicated she planned to leave the office for an afternoon run, the
appellant offered “[y]ou can change [here in the office]. I’m going to get


   1   Of note, our action on AOE (1) rendered AOE (2) moot.
   2   Record at 82.
   3   Id. at 86.



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a haircut.”4 He then surreptitiously angled his Samsung smartphone to
capture Major KM’s desk and office locker, pressed the phone’s record
button, and left. Returning to their office after her run, Major KM
discovered the phone—which had successfully recorded her changing—
and reported the event to the Provost Marshall’s office.
    When interviewed that evening by Naval Criminal Investigative
Service investigators, the appellant initially denied setting up the
phone to record Major KM, claiming his phone had been lost or stolen.
Eventually, however, the appellant admitted his conduct to
investigators.
                                 II. DISCUSSION
A. Timeliness of appellate review5
    At court-martial the appellant pleaded guilty pursuant to a pretrial
agreement in which the CA agreed—among other things—to refer the
offenses to special court-martial and to dismiss an additional charge.
After announcing sentence, the military judge recommended the CA
grant clemency in the form of forfeiture protections for the benefit of
the appellant’s family. However, the original SJAR failed to note the
sentencing authority’s recommendation, resulting in this court setting
aside the original CA’s action on 14 May 2015.

    On 2 September 2015 the CA again acted to approve the findings
and the sentence as adjudged, and the record was returned to the court
for completion of appellate review on 25 September 2015.

   In his brief filed on 26 October 2015, the appellant asserted that the
new SJAR incorrectly applied RULE FOR COURT-MARTIAL (R.C.M.)
1107, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) to his
case.6 The government agreed with the appellant’s asserted error via a
consent motion filed on 24 November 2015; we set aside the second
CA’s action on 25 November 2015 and returned the record for new
post-trial processing. A new SJAR and addendum were prepared on 7
January 2016 and 23 February 2016, respectively. The appellant
submitted a request for clemency on 4 February 2016. The CA


   4   Id. at 44.
   5   Raised as supplemental AOE (5).
   6  R.C.M. 1107, as amended by Executive Order 13696, 119 Fed. Reg. 35811 (June
22, 2015), required the CA to considered matters submitted by the victim prior to
taking action. However, the changes to R.C.M. 1107 applied to offenses committed on
or after 24 June 2014. The offenses in this case took place on 6 June 2013.

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approved the findings and sentence as adjudged on 24 February 2016.
However, the record was not docketed with this court until 29 April
2016—65 days later.

   The appellant now asserts that he was denied his right to speedy
post-trial review and appeal as a result of the 65 days it took to
transmit the record of trial to this court after the CA’s third action. He
argues that this delay “has caused him to lose faith in the Marine
Corps military justice system,” and that “[t]his loss of faith has caused
him anxiety and concern that he is not being treated fairly by the
institution . . . .”7

   “[C]onvicted servicemembers have a due process right to timely
review and appeal of courts-martial convictions.” United States v.
Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006) (citations omitted). We
review claims of denial of the due process right to a speedy post-trial
review and appeal de novo. Id.8

    Due process speedy trial review is triggered by a facially
unreasonable delay. Id. at 136. Once review is triggered, the analysis
is conducted adopting the four factors set forth in Barker v. Wingo, 407
U.S. 514, 530 (1972): (1) the length of 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 135-39. No one factor is
dispositive, but should be balanced within the context of all the
relevant circumstances. Id. at 136.

   The Court of Appeals for the Armed Forces (CAAF) has applied a
presumption of unreasonable delay “where the record of trial is not
docketed by the service Court of Criminal Appeals within thirty days of
the [CA’s] action.” Id. at 142. The presumption of unreasonable delay
also serves to satisfy the first of the four Barker factors. Id.
   Here, the government has failed to articulate a satisfactory reason
why the 65–day period from the third CA’s action to docketing with
this court was not unreasonable. As a result, the first two Barker
factors cut against the government. However, the appellant only first
asserted his right to timely review and appeal in his Second

    7   Appellant’s Second Supplemental Brief and Assignment of Error of 1 Jun 2016
at 8.
    8See United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F. 2003) (speedy trial issues
are conclusions of law that are reviewed under the de novo standard).



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Supplemental Brief and Assignment of Error on 1 June 2016. This cuts
against the appellant.

   We then resolve the analysis by considering the prejudice suffered
by the appellant as a result of the excessive delay.

    The CAAF has adopted the Fifth Circuit’s modification in Rheuark
v. Shaw, 628 F.2d 297, 303 n. 8 (5th Cir. 1980), of Barker’s framework
for analyzing prejudice in the speedy trial context. Moreno, 63 M.J. at
138. This modified framework involves an analysis of three, related
interests in prompt appeals: (1) prevention of oppressive incarceration;
(2) minimization of anxiety; and (3) impairment of the ability to
present a defense at a rehearing. Id.

   1. Prevention of oppressive incarceration
   This sub-factor directly relates to the success or failure of an
appellant’s substantive appeal. ‘“If the substantive grounds for the
appeal are not meritorious, an appellant is in no worse position due to
the delay, even though it may have been excessive.’” United States v.
Merritt, 72 M.J. 483, 491 (quoting Moreno, 63 M.J. at 139). As we
decline to find merit and, thus, grant relief on the appellant’s sole
remaining issue below, we also find by necessity that the appellant is
no worse off than he would have been without the delay in re-docketing
the case. As a result, the appellant suffered no prejudice as a result of
oppressive incarceration.

   2. Minimization of anxiety

    For this sub-factor, the appellant must show, ‘“particularized
anxiety or concern that is distinguishable from the normal anxiety
experienced by prisoners awaiting an appellate decision.’” Id. (quoting
Moreno, 63 M.J. at 140). Here, the appellant avers merely a
generalized anxiety resulting from his “loss of faith” in the system
untethered to the specific delay he identifies in his brief. As a result,
he has failed to demonstrate that he suffered a greater-than-normal
level of anxiety and that his generalized worry had a nexus to the
processing of his appellate review beyond “wondering about the status
of [his] case.”9




   9   Appellant’s Declaration of 31 May 2016 at 3.



                                           5
    3. Impairment of ability to present a defense at a rehearing

   As with the first sub-factor, the final sub-factor is related to the
success or failure of an appellant’s substantive appeal. Moreno, 63 M.J.
at 140. And like the first sub-factor, our finding below forecloses a
finding of prejudice on this final sub-factor. Regardless, the appellant
has articulated no impairment, and we find no impairment, hindering
his ability to present a defense should a rehearing be authorized in the
future.

   While we find that the length of the delay between the third CA’s
action and re-docketing the record with this court was unreasonable,10
our balancing of the four Barker factors leads us to conclude that the
appellant was not denied his due process right to speedy trial review.
Consequently, he is not entitled to relief on this issue.

B. Sentence appropriateness11
   We review the record for sentence appropriateness de novo. United
States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “Sentence appropriateness
involves the judicial function of assuring that justice is done and that
the accused gets the punishment he deserves.” United States v. Healy,
26 M.J. 394, 395 (C.M.A. 1988). “This requires individualized
consideration of the particular accused on the basis of the nature and
seriousness of the offense and the character of the offender.” United
States v. McDonald, No. 201400357, 2016 CCA LEXIS 310, at *4 (N-M.
Ct. Crim. App. 2016) (per curiam) (citations and internal quotation
marks omitted). “While [a Court of Criminal Appeals] clearly has the
authority to disapprove part or all of the sentence findings,” we may
not engage in acts of clemency. United States v. Nerad, 69 M.J. 138,
145 (C.A.A.F. 2010).
    While acknowledging the appellant’s commendable 23-year record
of service prior to committing the offenses to which he pleaded guilty
and the unreasonable 65-day delay in docketing his case with the court
after the most recent CA’s action, we find the adjudged sentence in this
case appropriate under the circumstances. His was not an impulsive
act, as his comment, “but you always change,” evinced his desire to
record Major KM as early as the day before. When caught, he initially
denied encouraging her to change in the office and denied that he knew

    10It is particularly so in light of this case’s convoluted history of deficient SJARs
and actions.
    11   Raised as AOE (3).


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his phone was recording her while she changed. The appellant’s actions
betrayed the trust of his fellow Marine and superior officer in a
manner that caused both embarrassment and lasting impact on Major
KM. Under the circumstances, we are convinced that justice was done,
and that the appellant received the punishment he deserved. Healy, 26
M.J. at 395. Granting relief at this point would be to engage in
clemency, a prerogative reserved for the CA, and we decline to do so.
See id. at 395-96.
                          III. CONCLUSION
   The findings and the sentence, as approved by the CA, are affirmed.

                                   For the Court



                                      R.H. TROIDL
                                      Clerk of Court




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