ACCA affirmed the conviction, but modified the sentence of Specialist Jonathan Badgett.
Badgett opinion here.
ACCA affirmed Appellant’s conviction and sentence, but modifying the order to allow for the restoration of Appellant’s property. Appellant was convicted of two specifications of sexual abuse of a child, one specification of possession of child pornography, two specifications of production of child pornography, one specification of viewing child pornography, one specification of distributing child pornography, and one specification of communicating indecent language, in violation of Articles 120 and 134, UCMJ. The military judge sentenced appellant to a dishonorable discharge, confinement for twenty-five years, total forfeitures of all pay and allowances, and reduction to the grade of E-1.
After the adjournment of Appellant's trial, the Government took over 250 days to serve Appellant with the record of trial. Appellant's trial defense counsel submitted a request for speedy post-trial processing within that 250-day period and within the 10 days of receiving his record of trial. After Appellant submitted his post-trial matters to the convening authority, it took an additional 78-days for the convening authority to take action.
The total time between adjournment of his trial and the appellate court’s receipt of his case was 391 days. On appeal, Appellant argued that his right to a speedy trial was violated due to the delay.
Reviewing the case de novo, the Court considered the two issues necessary regarding a possible post-trial delay: (1) whether claims of excessive post-trial delay resulted in a due process violation as a matter of law, and (2) whether the Court can grant relief for excessive post-trial delay using its broad authority of determining sentence appropriateness.
Generally, the Court presumes that an unreasonable post-trial delay exists when the convening authority fails to take action within 120 days of completion of trial. If the delay has exceeded 120 days, then a four-factor balancing test is applied to determine whether a due process violation is triggered.
To assess whether there was prejudice to the Appellant, the Court considers three sub-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."
In the present case, the length of the delay was 390 days. As such, the Court determined this was unreasonable because the SJA did not provide an adequate explanation for the excessive delay. Additionally, the Court also found that there was no sufficient reason to delay the service and action at issue. The Appellant additionally satisfies the third factor, as Appellant's trial defense counsel timely submitted a request for speedy post-trial processing within the 250-day period. Although, the Court did not find the delay to be “so egregious that tolerating it would adversely affect the public's perception of the fairness and integrity of the military justice system," the Court did ultimately exercise its authority to grant relief to the Appellant.
After determining an appropriate remedy for the government's slow post-trial processing, the Court affirmed only so much of the sentence as provides for a dishonorable discharge, 5 years and 8 months of confinement, reduction to E-1, and the total forfeiture of all pay and allowances. The Court then restored all rights, privileges, and property, of which the Appellant had been deprived of by virtue of that portion of the sentence.
The four factors include "[the] length of the delay; reasons for the delay; the appellant's assertion of his right to a timely appeal; and prejudice to the appellant."
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