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

                           UNITED STATES, Appellee
                                        v.
                          Sergeant JOSEPH A. BRANDT
                          United States Army, Appellant

                                   ARMY 20100294

                                Headquarters, Fort Bliss
                           Michael J. Hargis, Military Judge
             Colonel Michael J. Benjamin, Staff Judge Advocate (pretrial)
    Colonel Francis P. King, Staff Judge Advocate (recommendation and addendum)


For Appellant: Major Richard E. Gorini, JA; Captain Richard M. Gallagher.

For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed.


                                  23 December 2011

                              -----------------------------------
                               SUMMARY DISPOSITION
                              -----------------------------------

ALDYKIEWICZ, Judge:

       This case was submitted to this court without assignment of error. On 12
March 2010, 26 March 2010, and 12-13 April 2010, 1 an officer panel sitting as a
general court-martial convicted appellant, contrary to his plea, of abusive sexual
contact with a child, in violation of Article 120, Uniform Code of Military Justice,
10 U.S.C. § 920 (2008) [hereinafter UCMJ]. On 10 February 2011, the convening
authority approved the adjudged sentence of reduction to the grade of Private E1,
forfeiture of all pay and allowances, confinement for six months, and a dishonorable
discharge.

      The court notes that the detailing, qualifications, and status as to oath of one
of appellant’s two defense counsel, Captain Joseph Godbey [hereinafter CPT G], was

1
 Court sessions were conducted on 12 and 26 March 2010 pursuant to Article 39(a),
UCMJ; the court was assembled on 12 April 2010; trial occurred on 12-13 April
2010.
BRANDT – ARMY 20100294

never placed on the record, either orally or in writing. Additionally, the post-trial
processing of appellant’s case, from trial to action, took 303 days, a post-trial delay
triggering a Moreno due process analysis. United States v. Moreno, 63 M.J. 129
(C.A.A.F. 2006).

        On 12 March 2010, the military judge fully advised appellant of his rights to
counsel, ensuring he understood his rights. Appellant elected, at that time, to be
represented by Captain Travis P. Sommer [hereinafter CPT S], an officer qualified
and certified under Article 27(b), UCMJ, sworn under Article 42(a), UCMJ, and
detailed by the Fort Bliss senior defense counsel. On 26 March, the government
augmented the prosecution team by one additional attorney, as did the defense, who
added CPT G. Unlike the new prosecutor, however, who stated his detailing,
qualifications, and status as to oath on the record, CPT G did not. After the new
trial counsel noted the physical presence of CPT G, the military judge asked
appellant: if he recalled their discussion two weeks earlier regarding his rights to
counsel, to which appellant replied in the affirmative; whether he wanted the rights
repeated, to which appellant replied in the negative; whether appellant had any
questions about his rights to counsel, again resulting in a negative reply; and by
whom appellant wished to be represented. Appellant requested CPT S and CPT G
and no one else. A similar colloquy occurred on 12 April when appellant again
indicated he understood his rights, did not want them repeated, had no questions
about his rights, and desired to be represented by CPT S and CPT G and no one else.
Captain G’s failure to state detailing, qualifications, and status as to oath on the
record went unresolved both at trial and during the post-trial processing of the case.

       While the military judge erred in failing to obtain defense counsel’s detailing,
qualifications, and status as to oath on the record, 2 such error, on these facts, is a
non-jurisdictional, procedural irregularity. Although not articulated, a review of the
record reveals CPT S began as lead counsel and retained that role throughout: he
was appellant’s sole defense counsel at the Article 32, UCMJ hearing; he and only
he signed every pretrial motion; he acted on and initialed every court-martial
member questionnaire; he is the only designated counsel in the post-trial and
appellate rights advice and requirement to register as a sex offender notice; and he is
on record as the counsel to handle appellant’s post-trial submissions. In addition to
being fully represented by no less than one apparently qualified, certified, and sworn
counsel (i.e., CPT S), appellant is not heard to object to the composition or
performance of his defense team, either during trial, after trial, or on appeal before

2
  “The Chief, USATDS details trial defense counsel for GCMs and SPCMs. This
authority may be delegated down to senior defense counsel. Detail of counsel will
be reduced to writing and included in the record of trial or announced orally on the
record at court-martial. The writing or announcement will indicate by whom the
counsel was detailed.” (Emphasis added). Army Reg. 27-10, Legal Services:
Military Justice, para. 6-9 (16 November 2005).


                                           2
BRANDT – ARMY 20100294

this court. Absent prejudice, of which there is none, relief is not warranted. See
United States v. Ogren, 52 M.J. 528, 538 (N.M. Ct. Crim. App. 1999).

       The next issue before the court is the unexplained post-trial delay. As our
superior court noted in Moreno, any delay from trial to action in excess of 120 days
is “presumptively unreasonable.” United States v. Moreno, 63 M.J. 129, 142
(C.A.A.F. 2006). In appellant’s case, action was taken 303 days after trial, a
presumptively unreasonable delay triggering the Barker v. Wingo four-factor
analysis: “(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” to
determine whether appellant was denied due process in the post-trial processing of
his case. Moreno, 63 M.J. at 135 (citing Barker v. Wingo, 407 U.S. 514 (1972)). In
addressing prejudice, the Moreno court adopted the Fifth Circuit’s modification of
the Barker analysis, focusing on three 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 (citations
omitted).

        Barker’s first factor, length of delay (i.e., 303 days), favors appellant.
Barker’s second factor, reasons for delay, also favors appellant. The record is
devoid of any explanation for the lengthy post-trial processing of appellant’s case.
Barker’s third factor, timely demand for speedy post-trial processing, favors the
government. Appellant failed to make any demand for speedy post-trial processing.
Finally, Barker’s fourth factor, prejudice, also favors the government. Appellant
failed, either in his post-trial submissions to the convening authority or on appeal
before this court, to complain about the post-trial processing of his case. While not
dispositive, appellant’s “complete lack of effort to seek expeditious processing” is a
factor this court can consider when assessing prejudice. See United States v.
Garman, 59 M.J. 677 (A.C.C.A. 2003). “Had he been prejudiced, we are certain that
he would have complained.” United States v. Jenkins, 38 M.J. 287, 289 (C.M.A.
1993). After careful analysis and consideration of the Barker factors, to include the
three prejudice sub-factors, we find no deprivation of due process; therefore, no
relief is warranted.

       Finally, this court considered its Article 66(c), UCMJ, authority to grant relief
when there has been unreasonable post-trial delay, notwithstanding the absence of
prejudice. See United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); United
States v. Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000). In light of all the
circumstances, we conclude the post-trial delay in this case does not adversely affect
the public's perception of the fairness and integrity of the military justice system;
therefore, no relief is warranted.




                                           3
BRANDT – ARMY 20100294

      We have reviewed the matter personally raised under United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982) and find it to be without merit.

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge KERN and Judge YOB concur.

                                      FOR
                                       FORTHE
                                           THECOURT:
                                               COURT:




                                       MALCOLMH.H.SQUIRES,
                                      MALCOLM          SQUIRES,JR.
                                                                JR.
                                       ClerkofofCourt
                                      Clerk      Court




                                        4
