United States v. Davis

Opinion

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM S32648 (f rev) ________________________ UNITED STATES Appellee v. Cyle L. DAVIS Airman Basic (E-1), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Upon Further Review Decided 22 February 2022 ________________________ Military Judge: Bryon T. Gleisner; Dayle P. Percle (remand). Sentence: Sentence adjudged 31 January 2020 by SpCM convened at Shaw Air Force Base, South Carolina. Sentence entered by military judge on 3 March 2020, and reentered on 15 September 2021: Bad-con- duct discharge and confinement for 210 days. For Appellant: Lieutenant Colonel Kirk W. Albertson, USAF. For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major John P. Patera, USAF; Mary Ellen Payne, Esquire. Before JOHNSON, LEWIS, and CADOTTE, Appellate Military Judges. ________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ PER CURIAM: This case is before this court for the second time. Appellant initially per- sonally raised, in accordance with United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), two issues on appeal: (1) whether the convening authority im- properly failed to take action on the sentence in his case; and (2) whether Ap- pellant is entitled to sentence appropriateness relief resulting from the Gov- ernment’s post-trial delay. Previously, our court remanded this case to the United States v. Davis, No. ACM S32648 (f rev)

Chief Trial Judge, Air Force Trial Judiciary, to resolve the first issue. United States v. Davis, No. ACM S32648, 2021 CCA LEXIS 433, at *7–8 (A.F. Ct. Crim. App. 26 Aug. 2021) (unpub. op.).* We deferred deciding the second issue. After our remand, on 8 September 2021, the convening authority signed a new decision on action memorandum approving the sentence in its entirety. On 15 September 2021, a new entry of judgment (EoJ) was completed. Subse- quently, the record of trial was returned to this court. We find that the conven- ing authority’s action and the new EoJ remedy the error identified in our ear- lier opinion. Appellant submitted a supplemental brief to this court on 24 No- vember 2021, resubmitting his case on its merits with no additional assign- ment of error but “specifically preserv[ing] and maintain[ing]” the issues raised in his initial brief. We find the convening authority’s 8 September 2021 action on the sentence complies with applicable law, and that the 15 September 2021 EoJ correctly reflects the sentence and post-trial actions taken in this case. We further find that no additional modifications are necessary. We therefore address Appellant’s second issue regarding unreasonable post-trial delay. Appellant contends that he is entitled to sentence relief be- cause his case was not docketed with this court within 30 days of the convening authority’s action as required by United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006) (citations omitted). We disagree and find no relief is warranted. Post-trial processing of courts-martial has changed significantly since Moreno, to include the use of an entry of judgment before appellate proceedings can begin. See United States v. Livak, 80 M.J. 631, 633 (A.F. Ct. Crim. App. 2020); see also United States v. Brown, 81 M.J. 507, 510 (A. Ct. Crim. App. 2021). This court has previously explained the consequences of updates to post- trial processing: [T]he specific requirement in Moreno which called for docketing to occur within 30 days of action no longer helps us determine an unreasonable delay under the new procedural rules. How-

* Subsequent to our remand, the United States Court of Appeals for the Armed Forces

(CAAF) decided United States v. Brubaker-Escobar, 81 M.J. 471 (C.A.A.F. 2021) (per curiam). In Brubaker-Escobar, the CAAF held the convening authority committed a procedural error by taking no action on the sentence, when the case involved a convic- tion for at least one offense committed before 1 January 2019 and referral was after 1 January 2019. Id. at 475. The CAAF tested the procedural error for material preju- dice. Id.; see also United States v. Aumont, ___ M.J. ___, No. 21-0126, 2021 CAAF LEXIS 892, at *1 (C.A.A.F. 12 Oct. 2021) (remanding to our court to determine whether the procedural error of taking no action on the sentence materially prejudiced a sub- stantial right of appellant).

2 United States v. Davis, No. ACM S32648 (f rev)

ever, we can apply the aggregate standard threshold the major- ity established in Moreno: 150 days from the day Appellant was sentenced to docketing with this court. Livak, 80 M.J. at 633 (citation omitted). Appellant was sentenced on 31 January 2020, and the convening authority signed the initial decision on action memorandum on 27 February 2020. On 3 March 2020, the military judge completed the initial EoJ. On 22 April 2020, Appellant’s case was initially docketed with this court 55 days after the deci- sion on action and 82 days from the conclusion of trial. We are not persuaded by Appellant’s argument that Livak does not apply because the convening authority was required to take action on the sentence in this case and, therefore, the Moreno 30-day docketing standard beginning with the convening authority’s action applies. Whether or not the convening authority was required to take action is immaterial. The determining factor, applying Livak, is that the case was conducted under the “new procedural rules.” Id. As Appellant’s case was processed under the “new procedural rules,” we apply Livak’s 150-day aggregate standard threshold. From the conclusion of trial to the docketing of Appellant’s case, 82 days passed, which is well under the 150-day threshold for a showing of facially unreasonable delay. Under the circumstances of this case, we find no due process violation occurred. Finally, applying 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 considered all the facts and circumstances with regard to the post-trial delay and decline to exercise our Article 66(d), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(d) (Manual for Courts-Martial, United States, (2019 ed.)), authority for excessive delay absent a due process violation. See also United States v. Tardif, 57 M.J. 219, 223–24 (C.A.A.F. 2002). After full consideration, we find Appellant is not entitled to relief for post-trial delay. Upon further review, the findings and sentence as reentered are correct in law and fact, and no error materially prejudicial to Appellant’s substantial rights occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court