UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         KERN, ALDYKIEWICZ, and MARTIN
                             Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                     Specialist RONALD E. PLEASANT, Jr.
                         United States Army, Appellant

                                  ARMY 20100437

                      Headquarters, III Corps and Fort Hood
                       Matthew J. McDonald, Military Judge
                   Colonel Stuart W. Risch, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Major Richard E. Gorini, JA; Major
Meghan M. Poirier, JA (on brief); Colonel Patricia A. Ham, JA; Major Jaired
Stallard, JA; Captain Robert N. Michaels, JA (reply brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley,
JA; Captain Edward J. Whitford, JA (on brief).


                                  11 February 2013
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of conspiring to wrongfully distribute cocaine, violating a
lawful general regulation by transporting a concealed weapon onto a military
installation, fleeing apprehension, distributing cocaine, distributing marijuana, and
wrongfully introducing cocaine onto a military installation with the intent to
distribute, in violation of Articles 81, 92, 95, and 112a Uniform Code of Military
Justice, 10 U.S.C. §§ 881, 892, 895, 912a (2006) [hereinafter UCMJ]. The military
judge sentenced appellant to a bad-conduct discharge, confinement for six years, and
reduction to the grade of E-1. The convening authority approved only so much of
the sentence that provided for a bad-conduct discharge, confinement for twelve
months, and reduction to the grade of E-1. Appellant was credited with 212 days of
confinement against his sentence to confinement.
PLEASANT—ARMY 20100437

      Appellant raises two assignments of error for our review under Article 66,
UCMJ, of which one merits discussion and relief. Though we do not find any
prejudice, we agree with appellant that the excessive post-trial delay in the
processing of this case warrants relief.

                                  BACKGROUND

        Appellant’s general court-martial adjourned on 21 May 2010. The record of
trial is 269 pages long. On 21 September 2010, defense counsel made a request for
speedy post-trial processing pursuant to United States v. Collazo, 53 M.J. 721 (Army
Ct. Crim. App. 2000), and United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).
In his Rule for Courts-Martial [hereinafter R.C.M.] 1105 matters, appellant’s
defense counsel raised the dilatory post-trial processing as a legal error and
requested relief. While the Staff Judge Advocate (SJA) noted the issue in the
addendum, he did not provide any explanation for the delay nor did he recommend
any corrective action. On 8 August 2011, 444 days after the conclusion of trial, the
convening authority took initial action, and did not provide any relief based on post-
trial delay.

                              LAW AND DISCUSSION

       In Moreno, our superior court provided a processing standard of 120 days
from the conclusion of appellant’s court-martial to action by the convening
authority. Moreno, 63 M.J. at 142. Therefore the 444-day delay present in
appellant's action is presumptively unreasonable. See id. at 136 (finding that a 490-
day delay during the same time period was presumptively unreasonable). As a
result, appellant’s case triggers a Barker v. Wingo, 407 U.S. 514 (1972), four-factor
analysis to determine if appellant’s due process rights were violated. Those factors
are: “(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. See United States v. Ney, 68 M.J. 613, 616 (Army Ct. Crim. App.
2010). In order to analyze the fourth factor, we must consider three sub-factors:
“(1) prevention of oppressive incarceration pending appeal; (2) minimization of
anxiety and concern of those convicted awaiting the outcome of their appeals; and
(3) limitation of the possibility that a convicted person’s grounds for appeal, and his
or her defenses in case of reversal and retrial, might be impaired.” Moreno, 63 M.J.
at 138–39 (quoting Rheuark v. Shaw, 628 F.2d 297, 303 n.8 (5th Cir. 1980)).

       The first Barker factor favors appellant, as the processing of this case
exceeded our superior court’s standard by over 300 days, creating a presumption of
unreasonable delay. The second and third Barker factors also favor appellant. Even
allowing for defense counsel’s request for a 20-day extension in order file R.C.M.
1105 matters, we do not find the reasons articulated by the government in post-trial
affidavits sufficient to justify the delay, because they fall into the category of



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PLEASANT—ARMY 20100437

“administrative matters, manpower constraints or the press of other cases,” which
does not justify dilatory processing. Moreno, 63 M.J. at 143. Moreover, appellant’s
defense counsel made two separate requests for speedy post-trial processing during
this period.

       Under the fourth Barker factor, however, appellant fails to establish prejudice
under any of the prejudice sub-factors. First, appellant was released from
confinement on 5 January 2011, and there is no evidence of “oppressive
incarceration pending appeal.” Id. at 139. Appellant has not demonstrated
“particularized anxiety or concern that is distinguishable from the normal anxiety
experienced by prisoners awaiting an appellate decision.” Id. at 139–140. Finally,
appellant has not provided any information that his grounds for appeal might be
impaired. Although defense appellate counsel assert that appellant encountered
difficulty finding employment because he lacks a Department of Defense Form 214,
Certificate of Release or Discharge from Active Duty (Aug. 2009) (DD Form 214),
we find that this assertion without any supporting documentation to be mere
speculation that does not amount to prejudice. See United States v. Allende, 66 M.J.
142, 145 (C.A.A.F. 2008) (appellant’s affidavit that he was denied employment as a
result of his inability to obtain a DD Form 214, without more, is insufficient to
establish prejudice). We therefore find that, under the circumstances, appellant’s
due process rights were not violated.

        This does not, however, end our analysis. Under Article 66(c), UCMJ, this
court has the responsibility and the authority to assess the appropriateness of
appellant’s sentence in light of the presumptively unreasonable 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);
Ney, 68 M.J. at 616–17. Reviewing the entire record of trial, and in light of the
government’s unpersuasive post-trial explanations for excessive post-trial processing
time, along with the particular circumstances of this case, we find a reduction of two
months in the sentence to confinement appropriate.

                                   CONCLUSION

       On consideration of the entire record, appellant’s assigned errors, and the
matters personally raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), we hold the findings of guilty are correct in law and fact. Therefore,
we affirm the findings of guilty. Based on the reasons outlined above, the court
affirms only so much of the sentence as provides for a bad-conduct discharge,
confinement for ten months, and reduction to the grade of E-1. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of his sentence set aside by this decision, are ordered restored. See UCMJ
arts. 58b(c) and 75(a).




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PLEASANT—ARMY 20100437




                               FOR THE COURT:

                         MALCOLM H. SQUIRE
                         Clerk of Court
                             MALCOLM H. SQUIRES, JR.
                             Clerk of Court




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