          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                         Staff Sergeant DANIEL P. OPENSHAW
                                  United States Air Force

                                        ACM 38049 (recon)

                                           1 August 2014

         Sentence adjudged 5 October 2011 by GCM convened at Joint Base
         Lewis-McChord, Washington. Military Judge: Martin T. Mitchell (sitting
         alone).

         Approved Sentence: Dishonorable discharge, confinement for 13 years, and
         reduction to E-1.

         Appellate Counsel for the Appellant:      Major Daniel E. Schoeni;
         Major Bryan A. Bonner; Captain Isaac C. Kennen; and Captain Lauren A.
         Shure.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel Linell A. Letendre; Major Daniel J. Breen;
         Major Brian C. Mason; and Gerald R. Bruce, Esquire.

                                                 Before

                              ALLRED, HARNEY, and WEBER
                                 Appellate Military Judges

                                  OPINION OF THE COURT
                                 UPON RECONSIDERATION

                   This opinion is subject to editorial correction before final release.



PER CURIAM:

        The appellant was tried by a military judge sitting as a general court-martial
between 4 and 5 October 2011. Consistent with his pleas, the appellant was found guilty
of six specifications of wrongful sexual contact upon a child who had not attained the age
of 12 years and two specifications of indecent acts upon a female under 16 years of age,
in violation of Articles 120 and 134, UCMJ, 10 U.S.C. §§ 920, 934. The military judge
sentenced the appellant to a dishonorable discharge, confinement for 18 years, and
reduction to E-1. Consistent with the terms of a pretrial agreement, the convening
authority approved only so much of the sentence as called for a dishonorable discharge,
13 years of confinement, and reduction to E-1.1

                                             Procedural History

       On 25 January 2013, The Judge Advocate General of the Air Force appointed
Mr. Laurence M. Soybel to the position of appellate military judge on the Air Force
Court of Criminal Appeals pursuant to Article 66(a), UCMJ, 10 U.S.C. § 866(a). At the
time of this appointment, Mr. Soybel, a retired Air Force officer and former appellate
military judge, was serving as a civilian litigation attorney in the Department of the
Air Force. On 25 June 2013, the Secretary of Defense, “[p]ursuant to [his] authority
under title 5, United States Code, section 3101 et seq.,” issued a memorandum that
“appoint[ed] Mr. Laurence M. Soybel, a civilian employee of the Department of the
Air Force, to serve as appellate military judge on the Air Force Court of Criminal
Appeals.” Memorandum from Sec’y of Def. Chuck Hagel for Sec’y of the Air Force
Eric Fanning (25 June 2013).

       When the appellant’s case was initially before us, the appellant argued his
sentence was inappropriately severe.

       On 28 March 2013, this Court issued a decision denying the appellant relief.
United States v. Openshaw, ACM 38049 (A.F. Ct. Crim. App. 2013) (unpub. op.).
Mr. Soybel was a member of the panel that decided the case. Following Mr. Soybel’s
appointment by the Secretary of Defense on 25 June 2013, we reconsidered the decision
sua sponte and on 18 July 2013 issued a new opinion upon reconsideration. United States
v. Openshaw, ACM 38049 (recon) (A.F. Ct. Crim. App. 18 July 2013) (unpub. op.).
Mr. Soybel was again a member of the panel. On 19 September 2013, the appellant filed
a petition for grant of review with our superior court. United States v. Openshaw,
73 M.J. 51 No. 14-0051/AF (Daily Journal 19 September 2013). On 31 October 2013,
our superior court dismissed the appellant’s petition for review without prejudice and
converted the appellant’s motion to vacate, then pending before this Court, into a motion
for reconsideration. United States v. Openshaw, 73 M.J. 91 (C.A.A.F. 2013) (mem.). On
15 April 2014, our superior court issued its decision in United States v. Janssen, 73 M.J.
221, 225 (C.A.A.F. 2014), holding that the Secretary of Defense did not have the

1
  The appellant pled not guilty to one specification of wrongfully committing indecent conduct and two
specifications of wrongfully engaging in a sexual act upon a child who had not yet attained 12 years of age, alleged
as violations of Article 120, UCMJ, 10 U.S.C. § 920, as well as three specifications of committing an indecent act
upon a female under 16 years of age, alleged as violations of Article 134, UCMJ, 10 U.S.C. § 934. Consistent with
the terms of the pretrial agreement, these specifications were withdrawn and dismissed with prejudice after
arraignment.


                                                         2                                     ACM 38049 (recon)
legislative authority to appoint civilian employees as appellate military judges and that
his appointment of Mr. Soybel to this Court was “invalid and of no effect.”

       In light of Janssen, we granted the appellant’s motion for reconsideration on
29 April 2014 and permitted the appellant to file a supplemental assignment of errors. In
a supplemental assignment of error, the appellant asserts he is entitled to relief due to
unreasonable appellate delay. With a properly constituted panel, we have reviewed the
appellant’s case, to include the appellant’s previous and current filings and the previous
opinions issued by this Court. We affirm the findings and sentence in this matter.

                                                 Sentence Severity

       On appeal, the appellant asserts his sentence is inappropriately severe.2 He argues
his trial defense counsel submitted an extensive sentencing package that included
10 letters from family and friends expressing their confidence in his potential for
rehabilitation. He also points to his deployment to Kuwait and his service in Korea
during his eight years of military service. The appellant asks this Court to approve no
more than eight years of confinement.

       This Court reviews sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we find] correct in law and fact and
determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ,
10 U.S.C. § 866(c). “We assess sentence appropriateness by considering the particular
appellant, the nature and seriousness of the offense[s], the appellant’s record of service,
and all matters contained in the record of trial.” United States v. Anderson, 67 M.J. 703,
705 (A.F. Ct. Crim. App. 2009) (citations omitted). Although we are accorded great
discretion in determining whether a particular sentence is appropriate, we are not
authorized to engage in exercises of clemency. United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010).

        In this case, the appellant clearly violated the standards of conduct expected of any
human being, let alone the high standards to which Airmen are held. The record shows
that, on multiple occasions over a period of several years, the appellant sexually molested
his biological daughter, his adopted daughter, and his stepdaughter. The appellant
touched the genitalia of all three daughters through their clothing, touched the naked
genitalia and buttocks of his adopted daughter, and touched the naked genitalia of his
biological daughter. His biological and adopted daughters were under 12 years of age at
the time of the molestations. His stepdaughter was under 16 years of age at the time of
the molestations. We also note that the maximum time of confinement in this case was
134 years. The appellant was sentenced to 18 years confinement, but negotiated a

2
    The appellant raises this issue pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                            3                                      ACM 38049 (recon)
favorable pretrial agreement with the convening authority that capped confinement at
13 years.

       We have given individualized consideration to this particular appellant, the nature
and seriousness of the offenses, the appellant’s record of service, and all other matters
contained in the record of trial. We find that the approved sentence was clearly within
the discretion of the convening authority, was appropriate in this case, and was not
inappropriately severe.

                            Appellate Review Time Standards

        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 appellate review is not completed and
a decision is not rendered within 18 months of the case being docketed before this Court.
United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). The Moreno standards
continue to apply as a case remains in the appellate process. United States v. Mackie,
72 M.J. 135, 135–36 (C.A.A.F. 2013). The Moreno standard is not violated when each
period of time used for the resolution of legal issues between this Court and our superior
court is within the 18-month standard. Id. at 136; see also United States v. Roach,
69 M.J. 17, 22 (C.A.A.F. 2010). However, when a case is not completed within
18 months, such a delay is presumptively unreasonable and triggers an analysis of the
four factors elucidated in Barker v. Wingo, 407 U.S. 514 (1972), and Moreno. See
United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011). 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); see also Barker, 407 U.S. at 530.

       This case was first docketed for appeal at this Court on 5 December 2011. After
considering the briefs of counsel, this Court rendered its first decision on 28 March 2013,
which did not trigger the presumption of unreasonable delay. Upon reconsideration,
however, this Court vacated the previous decision and issued its subsequent decision on
18 July 2013—more than 18 months after the case was first docketed for appeal. The
overall delay of more than 18 months between the time of docketing and review by the
Court, therefore, is facially unreasonable. As stated earlier in this opinion, our superior
court recently decided that one of the judges who participated in that decision was not
properly appointed, and subsequently the appellant’s case remained in the appellate
process. Accordingly, we have considered the appellant’s case before a properly
constituted panel and issue this decision. The time between our superior court’s action
and this decision has not exceeded 18 months; therefore the Moreno presumption of
unreasonable delay is not triggered for this period of time.



                                             4                             ACM 38049 (recon)
        We analyze the Barker factors for the delay leading up to our 18 July 2013
decision. The first factor weighs in favor of the appellant; the length of the delay
between docketing and our decision is presumptively unreasonable and therefore satisfies
the first Barker factor. See Moreno, 63 M.J. at 142. The second factor also weighs in the
appellant’s favor, although minimally. Our original opinion was issued within the
18-month Moreno standard but was subsequently vacated by our 18 July 2013
reconsideration decision. That reconsideration was accomplished in order to have the
appellant’s case heard before what was then thought to be a properly constituted panel
after the Secretary of Defense’s appointment of Mr. Soybel. Third, although the
Government carries the primary responsibility for speedy post-trial processing, see
United States v. Bodkins, 60 M.J. 322, 323–24 (C.A.A.F. 2004), the appellant did not
assert his right to speedy post-trial processing until 19 May 2014, in his supplemental
assignment of error. His 9 October 2013 submission to our superior court did not include
a demand for speedy appellate review. Finally, on the fourth factor, the appellant fails to
demonstrate any prejudice in this case. “An appellant must demonstrate a particularized
anxiety or concern that is distinguishable from the normal anxiety experienced by
prisoners awaiting an appellate decision.” Arriaga, 70 M.J. at 58 (internal quotation
marks and citations omitted). Here, the appellant has not done so.

        When there is no showing of prejudice under the fourth 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, 361–62
(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 fairness and integrity of the
military justice system. We are convinced the error is harmless beyond a reasonable
doubt.

        While we find the post-trial delay was harmless, that does not end our analysis.
Article 66(c), UCMJ, 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). United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); see also
United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In United States v. Brown,
62 M.J. 602, 606–07 (N.M. Ct. Crim. App. 2005), our Navy and Marine Court colleagues
identified a “non-exhaustive” list of factors to consider in evaluating whether
Article 66(c), UCMJ, relief should be granted for post-trial delay. Among the non-
prejudicial factors are the length and reasons for the delay; the length and complexity of
the record; the offenses involved; and the evidence of bad faith or gross negligence in the
post-trial process. Id. at 607. We find there was no bad faith or gross negligence in the
post-trial processing in any stage of the appellate review of this matter. The reason for


                                             5                             ACM 38049 (recon)
the delay between 18 July 2013 and our opinion today was to allow this Court and our
superior court to fully consider a constitutional issue of first impression: whether the
Secretary of Defense has the authority under the Appointments Clause3 to appoint
civilian employees to the service courts of criminal appeals. We conclude that sentence
relief under Article 66, UCMJ, is not warranted.

                                                 Conclusion

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

                                                 AFFIRMED.

Senior Judge HARNEY participated in this decision prior to her retirement.




                     FOR THE COURT


                     LEAH M. CALAHAN
                     Deputy Clerk of the Court




3
    U.S. CONST. art II § 2, cl 2.


                                                     6                    ACM 38049 (recon)
