In this post, we noted the Army CCA’s recent published opinion United States v. Arias, __ M.J. __, No. ARMY 20100973 (A. Ct. Crim. App. Feb. 12, 2013). This opinion addresses post-trial delay of about 300 days between the completion of the Appellant’s trial by general court-martial (where he was convicted pursuant to his pleas of possession and distribution of child pornography, and sentenced to confinement for 30 months, reduction to E-1, total forfeitures, and a bad-conduct discharge) and docketing of his case at the ACCA.
During the post-trial processing, the appellant’s defense counsel submitted matters that included a complaint of “untimely post-trial processing and service of the record of trial and staff judge advocate’s recommendation.” Slip op. at 3. But in an addendum to his SJAR, the Staff Judge Advocate wrote, “Counsel for the accused does not allege any legal error.” Slip op. at 4.
The CCA finds that this was error. “At issue in appellant’s case is whether an allegation of dilatory post-trial processing implicating Moreno and Barker amounts to an allegation of legal error requiring, at a minimum: (1) agreement or disagreement by the SJA, and (2) a statement on whether corrective action is required. We hold that it does.” Slip op. at 5. Moreover, considering this error under the factors set-forth in Barker v. Wingo, 407 U.S. 514 (1972), the CCA notes:
The third Barker factor, “assertion of the right to timely review and appeal,” also favors appellant, as his post-trial submission complaining about post-trial processing is sufficient to constitute a demand for timely review. United States v. Ney, 68 M.J. 613, 617 (Army Ct.Crim. App. 2010).
Slip op. at 7. This assertion occurred in a submission made on day 241, well-after the 120-day period established by United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). That this isn’t a bar to calling this a Barker demand is a notable reminder for trial-stage practitioners that under the Barker factors, the existence of a speedy-trial demand is an appellate consideration.
But the CCA finds no prejudice, and actually finds some benefit:
While appellant speculates regarding a missed opportunity for parole, the government properly points out that appellant actually benefited, at least monetarily, by the processing of his case. Since the convening authority granted appellant’s request to defer forfeitures, every day of post-trial processing prior to action resulted in additional money paid to appellant.
Slip op. at 8. The court affirmed the findings and sentence.