United States v. Valadez

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM 39176 ________________________ UNITED STATES Appellee v. Phillip J. VALADEZ II Airman First Class (E-3), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Decided 22 March 2018 ________________________ Military Judge: Shelly Schools (arraignment); Marvin W. Tubbs II.

Approved sentence: Dishonorable discharge, confinement for 22 years, reduction to E-1, and a reprimand. Sentence adjudged 14 June 2016 by GCM convened at Goodfellow Air Force Base, Texas.

For Appellant: Lieutenant Colonel R. Davis Younts, USAF; Major Mark C. Bruegger, USAF; Major Patricia Encarnación Miranda, USAF.

For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mary Ellen Payne, USAF; Major Meredith L. Steer, USAF.

Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.

________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4. ________________________

PER CURIAM: A general court-martial convicted Appellant, in accordance with his pleas, of one specification of false official statement, two specifications of sexual as- sault, three specifications of aggravated assault, one specification of assault United States v. Valadez, No. ACM 39176

consummated by a battery, and one specification of kidnapping, in violation of Articles 107, 120, 128, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 920, 928, 934. Officer members sentenced Appellant to a dishonorable discharge, confinement for 31 years and 166 days, forfeiture of all pay and allowances, reduction to the grade of E-1, and a reprimand. In accordance with the pretrial agreement, the convening authority approved only 22 years of confinement. The convening authority also disapproved the adjudged forfeitures, deferred Appellant’s automatic forfeiture of pay until action, and then waived the automatic forfeiture of pay for six months for the benefit of Appellant’s dependent spouse. See Articles 57a and 58b, UCMJ, 10 U.S.C. §§ 857a, 858b. The convening authority approved the remaining por- tions of the adjudged sentence.

This case was submitted to us on its merits with no assignments of error.

We nevertheless address the facially unreasonable delay in the post-trial pro- cessing of Appellant’s case. We find no error materially prejudicial to Appel- lant’s substantial rights and we affirm the findings and sentence.

Appellant’s court-martial concluded on 14 June 2016, and the convening authority took action on 1 November 2016. This 140-day period exceeded the 120-day threshold for a presumptively unreasonable post-trial delay estab- lished by the United States Court of Appeals for the Armed Forces (CAAF) in United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Accordingly, we have considered the four factors identified in Moreno to assess whether Ap- pellant’s due process right to timely post-trial and appellate review has been violated. 1 Id. at 135 (citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F.

2005), United States v. Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004)).

Where, as here, there is no discernible prejudice from the delay, there is no due process violation unless the delay is so egregious as to “adversely af- fect the public’s perception of the fairness and integrity of the military justice system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). Consider- ing the relevant factors together, we conclude that the 140 days that elapsed between the conclusion of trial and the convening authority’s action does not meet that threshold.

Recognizing our authority under Article 66(c), UCMJ, we have also con- sidered whether relief for excessive post-trial delay is appropriate in this case even in the absence of a due process violation. See United States v. Tardif, 57

United States v. Valadez, No. ACM 39176

M.J. 219, 225 (C.A.A.F. 2002). After considering the factors enumerated in United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), we conclude it is not. 2 On the whole, the processing of Appellant’s case has not been subjected to excessive post-trial delay, and we perceive no substantial harm to Appellant, prejudice to the interests of justice or discipline, or erosion of this court’s ability to conduct our review or grant appropriate relief that would move us to modify an otherwise fitting sentence.

The approved findings and sentence are correct in law and fact, and no error materially prejudicial to Appellant’s substantial rights occurred. Arti- cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the ap- proved findings and sentence are AFFIRMED. 3

FOR THE COURT

CAROL K. JOYCE Clerk of the Court