United States v. Specialist NICHOLAS A. OSBORNE

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before TOZZI, CELTNIEKS, and BURTON Appellate Military Judges UNITED STATES, Appellee v. Specialist NICHOLAS A. OSBORNE United States Army, Appellant ARMY 20160285 Headquarters, United States Army Central Christopher T. Fredrikson, Military Judge Colonel Kevin K. Robitaille, Staff Judge Advocate

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA; Captain Patrick J. Scudieri, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, JA; Major Michael E. Korte, JA (on brief).

25 May 2017 ---------------------------------- SUMMARY DISPOSITION ---------------------------------- Per Curiam: A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specification of attempted sexual assault of a child in violation of Article 80, Uniform Code of Military Justice, 10 U.S.C. § 880 (2012) [hereinafter UCMJ]. The convening authority approved the adjudged sentence of a dishonorable discharge, confinement for twelve months, and reduction to the grade of E-1.

This case is before us for review under Article 66, UCMJ. Appellate defense counsel assigns one error to this court, and appellant personally raises matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). After due consideration, we find the assigned error warrants discussion and relief; the matters raised under Grostefon are without merit.

OSBORNE—ARMY 20160285 LAW AND DISCUSSION The convening authority took action 245 days after the sentence was adjudged. The record in this case consists of 2 volumes, and the trial transcript is pages. It took sixty-seven days after the convening authority’s action for this court to receive the record of trial and docket appellant’s case. The government provided no explanation in its post-trial submissions for this delay.

There is a presumption of unreasonable delay where the convening authority’s action is not taken within 120 days of the completion of trial, or where a record of trial is not docketed by the service Court of Criminal Appeals within thirty days of the convening authority’s action. United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Post-trial delay in the administrative handling and forwarding of the record of trial and related documents to an appellate court is the “least defensible” type of post-trial delay and “worthy of the least patience.” United States v. Dunbar, 31 M.J. 70, 73 (C.M.A. 1990).

Although we find no due process violation in the post-trial processing of appellant’s case, we must still review the appropriateness of the sentence in light of the dilatory post-trial processing. UCMJ art. 66(c); United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ, service courts are] required to determine what findings and sentence ‘should be approved,’ based on all the facts and circumstances reflected in the record, including the unexplained and unreasonable post-trial delay.”). See United States v. Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000). Under the circumstances, we find relief from this court is appropriate and provide such in our decretal paragraph.

CONCLUSION Upon consideration of the entire record, the findings of guilty are AFFIRMED.

Given the dilatory post-trial processing, however, we affirm only so much of the sentence as provides for a dishonorable discharge, eleven months confinement, and reduction to the grade of E-1. All rights, privileges, and property, of which appellant has been deprived by virtue of that portion of his sentence set aside by this decision, are ordered restored. See UCMJ arts. 58b(c), 75(a).

FOR THE COURT: FOR THE COURT:

JOHN P. TAITT JOHN P. TAITT Chief Deputy Clerk of Court Chief Deputy Clerk of Court