ACCA, in an unanimous decision affirmed Private Jesse L. Pimental-Torres' findings of guilt and affirmed only so much of his sentence as provides for a dishonorable discharge, confinement for eight months, reduction to E-1, and total forfeiture of all pay and allowances.
Appellant was convicted of sexual assault, in violation of Article 120, UCMJ, and was sentenced to a dishonorable discharge, confinement for 10 months, reduction to the grade of E-1, and total forfeiture of all pay and allowances. The convening authority eventually approved the sentence. However, the Government allowed 209 days to pass between the adjournment of his trial and the convening authority’s action, and 141 days to pass between the convening authority’s action and the delivery of this case to the ACCA.
On appeal, ACCA considered whether (1) Appellant’s post-trial delay violated his due process rights; and (2) whether he is entitled to relief under Article 66(c), UCMJ. In a unanimous opinion, ACCA found no violation, but exercised its authority, under Article 66(c), to reduce Appellant's confinement by 60 days.
There is a presumption of unreasonable post-trial delay when the convening authority fails to take action within 120 days of the completion of trial. Here, the convening authority took 209 days, and therefore established the presumption.
Next, to evaluate whether the post-trial delay constituted a due process violation, the Court applied the four-factor test from Barker v. Wingo. When assessing the fourth part, the Court considered three sub-factors. The first and second factors weighed against the Government because it did not provide a reason for the 141 day delay in delivering the trial record to ACCA. However, the third factor weighed against Appellant because he did not assert his right to a timely appeal.
The fourth factor also weighted against Appellant because (1) his anxiety during the appeals process was not a “particularized anxiety,” greater than that of others awaiting appellate review; and (2) his delay in gaining appellate counsel did not cause a longer period of confinement. Further, the Court did not find that Appellant’s post-trial delay was “so egregious” that he was denied due process rights.
2. The Court Exercised its Authority to Reduce Appellant’s Sentence
The Court can grant relief for excessive post-trial delay under its authority of determining sentence appropriateness under Article 66(c). Given the facts, the Court found the 141 day delay egregious, and exercised its authority to reduce Appellant’s sentence by 60 days.
Editor's note: ACCA exercised their Art. 66 power to grant Appellant a remedy, this use of Art. 66 appears to eclipse the use of the traditional Barker factors.
Judge Fleming authored the majority opinion, which was joined by Judges Burton and Rodriguez.
(1) Length of the delay; (2) reasons for the delay; (3) the appellant’s assertion of his right to a timely appeal; and (4) prejudice to the appellant.
(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.
When the fourth factor weighs against the Appellant, the Court finds “a due process violation only when, in balancing the other three [Barker] 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.” Toohey v. United States(C.A.A.F. 2004).
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