Post-trial delay

The CGCCA has issued a per curiam opinion in United States v. Sapp., a SPCM tried at U.S.C.G. Training Center Yorktown.

Before this court, Appellant has assigned two errors: (1) This court should consider the unreasonable and unexplained post-trial delay in determining the sentence that should be approved under Article 66(c); and (2) the promulgating order contains three errors. We grant sentence relief for post-trial delay and otherwise affirm. . . .

Notable delays in post-trial processing are found in the fifty-nine days apparently taken by the military judge to authenticate the record, the seventy-seven days taken after receipt of the authenticated record to produce the SJAR and send it to defense counsel, and the twenty-eight days between Convening Authority action and sending the record to Headquarters. The Memorandum forwarding the record gives no meaningful explanation for these delays, attributing them only to “administrative processing.”

Note to defense counsel.

Appellant did assert the right to timely review twice before the Convening Authority. On both occasions, the Government took its next step within three days of Appellant’s assertion of right. The appearance is that Convening Authority action might have occurred far later but for Appellant’s reminders to the Government.

The court found no prejudice.

We turn now to Appellant’s argument: that we should grant sentence relief under United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), which held that we may grant relief for excessive post-trial delay without a showing of prejudice. Id. at 224. Upon finding unreasonable and unexplained post-trial delay, this Court may consider such delay, along with all the other facts and circumstances, in exercising its responsibilities under Article 66(c), UCMJ. Id. We have granted such relief in several cases, most recently in United States v. Beaber (C.G.Ct.Crim.App. 15 April 2010) (unpub.), and before that in United States v. Greene, 64 M.J. 625 (C.G.Ct.Crim.App. 2007).