United States v. Sergeant CRISTIAN U. LOZANO

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before FLEMING, WILLIAMS, and COOPER Appellate Military Judges UNITED STATES, Appellee v. Sergeant CRISTIAN U. LOZANO United States Army, Appellant ARMY 20240096 Seventh Army Training Command Thomas P. Hynes, Military Judge Lieutenant Colonel Melvin L. Williams, Staff Judge Advocate For Appellant: Colonel Frank E. Kostik, Jr., JA; Lieutenant Colonel Kyle C.

Sprague, JA; Major Beau 0. Watkins, JA; Captain Louis S. Steiner, JA (on brief).

For Appellee: Colonel Richard E. Gorini, JA; Major Elizabeth G. Van Dyck, JA; Major Austin L. Fenwick, JA (on brief).

8 January 2026 SUMMARY DISPOSITION

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent COOPER, Judge: Appellant was convicted and sentenced on 4 March 2024. However, his record of trial did not arrive to this court until 27 February 2025-360 days later.

Appellant raised one assignment of error alleging unreasonable post-trial delay and requests this court grant appropriate relief.

Having considered the entire record, we do not find a due process violation, but we agree the post-trial delay was excessive and grant appropriate relief under Article 66, Uniform Code of Military Justice [UCMJ] . 1 We note two errors on the Statement of Trial Results. First, we correct Block 24 to include a missing term of the plea agreement - "a mandatory bad-conduct discharge." Second, Block 29 was incorrectly marked to indicate DNA processing was not required. In light of United States v. Williams, we lack the authority to correct this error. 85 M.J. 121, 126 (C.A.A.F. 2024).

LOZANO - ARMY 20240096 BACKGROUND On 4 March 2023, a military judge sitting as a special court-martial with the authority to adjudge a bad-conduct discharge (BCD), convicted appellant, pursuant to his pleas, of three specifications of larceny, in violation of Article 121, UCMJ, 10 U.S.C. § 921 (2019) and two specifications of obstructing justice in violation of Article 131b, UCMJ, 10 U.S.C. § 931b. In accordance with his plea agreement, the military judge sentenced appellant to a bad-conduct discharge and 8 months confinement.

Four days after the court-martial adjourned, the government received appellant's clemency matters under Rule for Courts-Martial [R.C.M.] 1106 where appellant requested waiver and deferral of automatic forfeitures. Seven days after that, on 15 March 2024, the Convening Authority (CA) approved appellant's request to defer and waive automatic frfeitures and took no action on the findings or sentence. On 9 April 2024, the military judge entered judgement and 25 days later, authenticated the record. The court reporter certified the record of trial (ROT) on 6 May 2024. The ROT was not received by this court until 27 February 2025-360 days after adjournment.

During post-trial processing, there was an opportunity to include a memorandum in the record of trial explaining any post-trial delay. The government neglected to do so. On appeal, after notice by appellant on post-trial delay, the government moved to attach a delay memorandum to the record. In light of US v. Jessie, we decline to allow this untimely supplementation of the record. 79 M.J. 437 (C.A.A.F. 2020).

LAW AND DISCUSSION We review allegations of unreasonable post-trial delay de novo. United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006). Whether a post-trial processing timeline is reasonable or dilatory is determined on a case-by-case basis. United States v. Winfield, 83 M.J. 662, 667 (Army Ct. Crim. App. 27 April 2023) (quoting Toohey v. United States (Toohey I), 60 M.J. 100, 101-02 (C.A.A.F. 2004); see also United States v. Abdullah, 85 M.J. 501, 2024 CCA LEXIS 479, at *27 (Army Ct. Crim. App. 5 November 2024); United States v. Moreno, 63 M.J. 129, 143 (C.A.A.F.

2006).

The Court of Appeals for the Armed Forces has recognized two separate and independent avenues for service courts to provide relief for dilatory post-trial processing: (1) the Due Process Clause of the Fifth Amendment; and (2) Article 66, UCMJ. Abdullah, 85 M.J. 501, 2025 CCA LEXIS 479, at *27 (citing United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002)); see also Toohey I, 60 M.J. at 101-02.

Whether there is a due process violation resulting from post-trial delay is analyzed

LOZANO - ARMY 20240096 using the four factors from Barker v. Wingo: (1) length of delay; (2) reasons for the delay; (3) appellant's assertion of the right to timely review and appeal; and (4) prejudice. 407 U.S.514, 530 (1972); Toohey I, 60 M.J.at 102."[N]o single factor [is] required to find that post-trial delay constitutes a due process violation." United States v. Toohey (Toohey 11), 63 M.J.353, 359 (C.A.A.F. 2006) (quoting Moreno, 63 M.J.at 136) (citation omitted).

Where post-trial delay is not a due process violation, this court still has "authority under Article 66[(d)(2), UCM J,] to grant relief for excessive post-trial delay without a showing of' actual prejudice' ....if it deems relief appropriate under the circumstances " Tardif, 57 M.J.at 224 (citation omitted). In determining "excessive delay, " this court considers "the totality of the circumstances surrounding the post-trial processing timeline for each case, balancing the interplay between factors such as chronology, complexity, and unavailability, as well as the unit's memorialized justifications for any delay " to make its determination. Winfield, 83 M.J.at 666.

Until its certification, this two-volume ROT with a 154-page transcript exhibits efficient post-trial processing. The sentence adjudication to certification took only 61 days. Once certified, however, post-trial processing halted. We have no explanation for the 270-day delay from certification on 6 May 2024 until the court received the record on 27 February 2025. A total of 360 days passed between the case adjournment and receipt of the record of trial by this court. The length of delay on this short rec9rd weighs heavily in favor of appellant.

This court emphasized in Winfield, that it would "scrutinize even more closely the unit-level explanations " of the delay to determine whether the delay was reasonable. 83 M.J.at 665. In addition, this court, sitting en bane, re-emphasized in Abdullah, the importance of an SJA's detailed explanation for post-trial delay and the expectation for OSJAs to "provide detailed explanations for any unwarranted delay." 85 M.J.501, 2025 CCA LEXI S479, at *29. Given clear notice from this court, the OSJA still inexplicably failed to provide any explanation. Thus, given no reason for the delay, the second factor weighs heavily in favor of appellant.

The third and fourth factor of the Barker test weigh in favor of the government, as appellant did not assert his right to a timely review and there is no prejudice alleged.2 When there is no finding of prejudice under the fourth Barker

In our analysis of prejudice under Barker, we considered 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." Moreno, 63 M.J.at 138-39 (quoting Rheuark v. Shaw, 628 F.2d 297, 303 n.8 (5th Cir. 1980)).