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

                       No. ACM S32430 (f rev)
                      ________________________

                         UNITED STATES
                             Appellee
                                   v.
                   Brandon M. ZEGARRUNDO
           Senior Airman (E-4), U.S. Air Force, Appellant
                      ________________________

       Appeal from the United States Air Force Trial Judiciary
                        Upon further review
                       Decided 13 June 2019
                      ________________________

Military Judge: J. Wesley Moore.
Approved sentence: Bad-conduct discharge, confinement for 30 days,
and reduction to E-1. Sentence adjudged 3 June 2016 by SpCM con-
vened at Moody Air Force Base, Georgia.
For Appellant: Major Allen S. Abrams, USAF; Major Patrick A. Clary,
USAF; Major Megan E. Hoffman, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mi-
chael T. Bunnell, USAF; Major Meredith L. Steer, USAF; Mary Ellen
Payne, Esquire.
Before MAYBERRY, HUYGEN, and KEY, Appellate Military Judges.
Senior Judge HUYGEN delivered the opinion of the court, in which
Chief Judge MAYBERRY and Judge KEY joined.
                      ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                      ________________________
             United States v. Zegarrundo, No. ACM S32430 (f rev)


HUYGEN, Senior Judge:
    Appellant pleaded guilty at a special court-martial to a total of six specifi-
cations involving attempted possession and possession, conspiracy to distrib-
ute, and attempted use and use of multiple drugs, in violation of Articles 80,
81, and 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880,
881, 912a. 1 A panel of officers sentenced Appellant to a bad-conduct dis-
charge, confinement for 30 days, reduction to the grade of E-1, and forfeiture
of $1,044.00 pay per month for one month. The convening authority approved
the adjudged sentence except for the forfeiture of pay.
    Appellant initially submitted his case on its merits with no specific as-
signment of error. The court specified the following issue: whether Appellant
is entitled to new post-trial processing consistent with the decision of the
United States Court of Appeals for the Armed Forces (CAAF) in United
States v. Addison, 75 M.J. 405 (C.A.A.F. 2016) (mem.), because the addendum
to the staff judge advocate’s recommendation (SJAR) failed to correct an error
in Appellant’s clemency submission. We determined that Appellant was so
entitled and ordered new post-trial processing. United States v. Zegarrundo,
77 M.J. 612 (A.F. Ct. Crim. App. 2018).
    New post-trial processing has been accomplished, and we have Appel-
lant’s case for further review. Pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), Appellant filed two supplemental assignments of error: (1)
that he was deprived of his right to a speedy trial for the 219-day delay be-
tween the remand of his case and new action by the convening authority and
the 181-day delay between the new action and the re-docketing of his case
with the court and (2) that he suffered cruel and unusual punishment in vio-
lation of the Eighth Amendment to the United States Constitution, U.S.
CONST. amend. VIII, and Article 55, UCMJ, 10 U.S.C. § 855, for the 30 days
of confinement during which he was subjected to solitary confinement and
not given his prescription medications. 2 Exercising our authority under Unit-
ed States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002), we affirm the findings
and only so much of the sentence as provides for a bad-conduct discharge,
confinement for 15 days, and reduction to the grade of E-1.



1All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.).
2We have considered the second supplemental assignment of error, which warrants
no further discussion or relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A.
1987).




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            United States v. Zegarrundo, No. ACM S32430 (f rev)


                               I. BACKGROUND
    On 31 January 2018, the court set aside the action of the convening au-
thority and remanded Appellant’s case for new post-trial processing. The
Government submitted a Motion for Reconsideration and Reconsideration En
Banc, which was opposed by Appellant and denied by the court on 19 March
2018. On 27 March 2018, Appellant’s case was returned to the convening au-
thority. The servicing legal office did not initiate new post-trial processing
until 12 June 2018. On 18 June 2018, the staff judge advocate issued a rec-
ommendation (SJAR). The defense counsel who assisted Appellant only dur-
ing new post-trial processing requested and received a copy of Appellant’s
record of trial and a second copy of the SJAR. On 14 July 2018, Appellant re-
ceived his copy of the SJAR. On 17 July 2018, Appellant was granted a 20-
day extension to submit clemency matters and submitted clemency matters
through his defense counsel on 13 August 2018. The clemency matters were
attached to the SJAR addendum, dated 27 August 2018. The convening au-
thority took action on 7 September 2018, or 219 days after the court’s decision
of 31 January 2018.
    After multiple attempts to obtain receipts from the trial defense counsel
and Appellant, the servicing legal office forwarded the record of trial on 1 No-
vember 2018. The record was received by the Air Force Legal Operations
Agency, Military Justice Division (AFLOA/JAJM), on 8 November 2018. The
court-martial order was not accomplished until 5 March 2019. Appellant’s
case was docketed on 7 March 2019, or 181 days after the convening authori-
ty’s action.

                               II. DISCUSSION
    Appellant contends that he was deprived of his right to a speedy trial by
the 219-day delay between the remand of his case and action by the conven-
ing authority as well as the 181-day delay between the action and the docket-
ing of his case. Appellant supports his claim by citing United States v. More-
no, 63 M.J. 129, 142 (C.A.A.F. 2006), and its determination of a presumptive-
ly unreasonable delay when more than 120 days elapse between the end of
trial and the convening authority’s action or when more than 30 days elapse
between action and docketing. Appellant relies on Barker v. Wingo, 407 U.S.
514, 530 (1972), and United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F.
2002), to articulate bases for granting relief for post-trial delay. The Govern-
ment also cites Moreno, Barker, and Tardif as the cases that address the is-
sue raised by Appellant.
    We review de novo whether an appellant has been denied the due process
right to a speedy post-trial review and appeal. Moreno, 63 M.J. at 135 (cita-
tions omitted). A presumption of unreasonable delay arises when the conven-

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             United States v. Zegarrundo, No. ACM S32430 (f rev)


ing authority does not take action within 120 days of the completion of trial
or when the case is not docketed with the appropriate service court of crimi-
nal appeals within 30 days of action. Id. at 142. A presumptively unreasona-
ble delay triggers an analysis of the four Barker factors: “(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 (cita-
tions omitted). A presumptively unreasonable delay satisfies the first factor,
but the Government “can rebut the presumption by showing the delay was
not unreasonable.” Id. at 142. Assessing the fourth factor of prejudice, we
consider the interests of “prevention of oppressive incarceration,” “minimiza-
tion of anxiety and concern of those convicted,” and “limitation of the possibil-
ity that . . . grounds for appeal, and . . . defenses . . . might be impaired.” Id.
at 138–39.
     As did both parties, we apply the 120-day standard for the convening au-
thority’s action to Appellant’s case, even though it was remanded for new
post-trial processing. See United States v. Bailon, 2009 CCA LEXIS 149 at *3
(f. rev.) (A.F. Ct. Crim. App. 29 Apr. 2009) (unpub. op.). However, we agree
with the Government, not Appellant, that the 120-day clock started when the
record was returned to the convening authority on 27 March 2018, not when
the court issued its opinion on 31 January 2018. Were we to find as Appellant
contends—that, as in Bailon, the 120-day clock in Appellant’s case began
ticking when the court issued its opinion—we would have to ignore the fact
that the convening authority could not proceed with new post-trial processing
while the Government’s Motion for Reconsideration and Reconsideration En
Banc was pending before the court. We decline to do so. Instead, we start the
clock when the record was returned to the convening authority and find that
the length of the delay was 164 days, not 219 days, and the 120-day standard
was exceeded by 44 days, not 99 days.
    We acknowledge that the reasons for the 164-day delay between return of
the case and action of the convening authority included the Government’s ef-
forts to satisfy the requests of the trial defense counsel for additional copies of
documents and to obtain receipts from Appellant and his counsel. But we de-
cline to hold Appellant responsible for any delay other than his requested and
granted 20-day delay to submit clemency matters. Post-trial processing and
its timeliness are responsibilities of the Government, and the delays, espe-
cially those related to the Government’s attempts to obtain receipts, could
have been mitigated by the Government had it been more proactive.
    Both parties agree that 181 days elapsed between the convening authori-
ty’s action and the docketing of Appellant’s case and that the 30-day standard
for this step of post-trial processing was exceeded by 151 days.



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            United States v. Zegarrundo, No. ACM S32430 (f rev)


   The reasons for the 151-day delay involved another round of attempts by
the servicing legal office to obtain receipts from Appellant and his counsel.
When the legal office eventually asked on 31 October 2018 and was advised
by AFLOA/JAJM to continue post-trial processing without the receipts, it ap-
pears that the office forwarded the record in November 2018 and then
stopped processing the case until reminded by AFLOA/JAJM in late Febru-
ary or early March 2019 to produce the court-martial order.
    With regard to the third and fourth Barker factors, Appellant did not as-
sert his right to timely post-trial processing at any time before he filed sup-
plemental assignments of error on 18 March 2019. He also did not make any
specific claim of prejudice.
   Considering the four Barker factors, we determine that Appellant has not
been denied his due process right to timely post-trial processing and thus is
not entitled to Moreno relief.
    Although we find no due process violation, we do grant Tardif relief, spe-
cifically because of the 151-day delay between action and docketing. Contrary
to the Government’s assertions, we cannot view as “negligible” or “modest”
either the 151-day delay or the time that passed between action and docket-
ing: 181 days, which was six times the 30 days allotted. We note in particular
that, after the convening authority took action on 7 September 2018, 179
days elapsed before the legal office produced the court-martial order required
by Rule for Courts-Martial 1111(b)(1) on 5 March 2019—and did so only after
being reminded by AFLOA/JAJM.
    In Tardif, the CAAF recognized that “a Court of Criminal Appeals has au-
thority under Article 66(c) to grant relief for excessive post-trial delay with-
out a showing of ‘actual prejudice’ within the meaning of Article 59(a).” 57
M.J. at 224. Furthermore, we as a service court of criminal appeals are re-
quired by Article 66(c), UCMJ, to determine which findings of guilty and the
sentence or part thereof “should be approved.” Article 66(c), UCMJ, 10 U.S.C.
§ 866(c); see Tardif, 57 M.J. at 224. Although the 151-day delay between ac-
tion and docketing was at least partially explained by the legal office’s at-
tempts to obtain receipts and the unavailability of the judge advocate and
paralegal primarily responsible for the post-trial processing of Appellant’s
case, the delay was almost wholly unjustified and unreasonable. As a result,
we consider not only the delay but also “all the facts and circumstances re-
flected in the record,” id., and conclude that we should approve the findings of
guilty and only so much of the sentence as provides for a bad-conduct dis-
charge, confinement for 15 days, and reduction to the grade of E-1.




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            United States v. Zegarrundo, No. ACM S32430 (f rev)


                              III. CONCLUSION
    We approve only so much of the sentence as provides for a bad-conduct
discharge, confinement for 15 days, and reduction to the grade of E-1. Article
66(c), UCMJ. The findings approved by the convening authority are correct in
law and fact, and no error materially prejudicial to Appellant’s substantial
rights occurred. Article 59(a), UCMJ, 10 U.S.C. § 859(a). Accordingly, the ap-
proved findings and the modified sentence are AFFIRMED.


                    FOR THE COURT



                    CAROL K. JOYCE
                    Clerk of the Court




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