Appellant was convicted, in accordance with a plea agreement, of desertion and sentenced to a bad-conduct discharge, 57 days of confinement, reduction to the grade of E-1, and a reprimand. On appeal, Appellant argues that his due process rights were violated when his case was not docketed with this court within 30 days of the convening authority's action. Finding no error or violation, the judgment was Affirmed.
Appellant’s trial concluded on April 2, 2019. On April 19, 2019, the military judge signed the decision in Appellant’s case. On July 2, 2019, the entry of judgment was signed. On July 3, 2019, the court reporter certified the record of trial (ROT). Due to some delay, the ROT was received by Appellant on September 13, 2019 and on September 19, 2019, the ROT was docketed with the court. At no time during this process did Appellant object to the delay or assert his right to timely review prior to April 22, 2020.
As the foundation for his claims, Appellant argues that the delay was in violation of United States v. Moreno. Moreno identifies an analysis when delay during three particular segments of the post-trial and appellate process is facially unreasonable: (1) the convening authority did not take action within 120 days of the completion of trial, (2) the record was not docketed with the Court of Criminal Appeals within 30 days of the convening authority's action, or (3) the Court of Criminal Appeals did not render a decision within 18 months of docketing.
Applying the 150-day threshold, the Court found that the delay was facially unreasonable as the process took 170 days. As such, the relevant issue before the Court is whether there was a due process violation. To determine whether a due process violation has occurred, the Court looked to the four factors set out in Barker v. Wingo, 407 U.S. 514, 530-32, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
As for the first factor, the Court found that the 170-day delay was presumptively unreasonable and weighs in favor of Appellant. Regarding the reasons for the delay, the court explained that the Government tried to serve the ROT multiple times to different addresses with no success. The Court also noted that since Appellant did not allege any bad faith, the second factor favors the Government. Because Appellant did not assert his rights until April 22, 2020, this weighs in favor of the Government as Appellant could have asserted his rights sooner. On the question of prejudice, the Court dismissed the interests of oppressive incarceration and anxiety and concern. Lastly, the Court found that the final factor weighed in the Government’s favor as Appellant’s guilty plea rendered his ability to present a defense upon rehearing moot.
In short, the Court Affirmed the decision and found no material prejudice or violation of Appellant’s rights.
 In United States v. Livak,____M.J., No. ACM S32617, [2020 BL 351805], 2020 CCA LEXIS 315, (A.F. Ct. Crim. App. 14 Sep. 2020), the court abandoned the 30 day requirement for an aggregated model: "[T]he specific requirement in Moreno which called for docketing to occur within 30 days of action no longer helps us determine a facially unreasonable delay under the new procedural rules, but the aggregate standard threshold established by the majority in Moreno of 150 days from Appellant's sentence to docketing is still applicable in determining a facially unreasonable delay."
 (1) the length of the delay; (2) the reasons for the delay; (3) Appellant's assertion of the right to timely review and appeal; and (4) prejudice.