United States v. Denny

• Court: United States Air Force Court of Criminal Appeals
• Decided: September 21, 2017
• Docket: ACM 39089
• Status: Unpublished

Opinion

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________

No. ACM 39089 ________________________

UNITED STATES Appellee v. Hunter J. DENNY Airman Basic (E-1), U.S. Air Force, Appellant ________________________

Appeal from the United States Air Force Trial Judiciary Decided 21 September 2017 ________________________

Military Judge: Marvin W. Tubbs II. Approved sentence: Dishonorable discharge and confinement for 1 year. Sentence adjudged 10 February 2016 by GCM convened at Sheppard Air Force Base, Texas. For Appellant: Captain Patricia Encarnación Miranda, USAF. For Appellee: Major Mary Ellen Payne, USAF; Gerald R. Bruce, Esquire. Before DREW, MAYBERRY, and BENNETT, 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This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4.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: The approved findings and sentence are correct in law and fact, and no er- ror materially prejudicial to Appellant’s substantial rights occurred. Articles United States v. Denny, No. ACM 39089

59(a) and 66(c), Uniform Code of Military Justice, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and sentence are AFFIRMED. *

FOR THE COURT

KURT J. BRUBAKER Clerk of the Court

* Though not raised by Appellant, we note that 2016 was a leap year, February 2016 had 29 days, and the convening authority failed to take action within 120 days. Rather, action was taken in 121 days. Therefore, we apply a rebuttable presumption of unreasonable post-trial delay which triggers an analysis of the four factors from Barker v. Wingo, 407 U.S. 514, 530 (1972). See United States v. Moreno, 63 M.J. 129, 142–43 (C.A.A.F. 2006). Based on our de novo review and after applying the four Barker v. Wingo factors, we find no prejudice, and any post-trial delay in this case harmless beyond a reasonable doubt. Moreover, while Article 66(c) empowers appellate courts to grant sentence relief for excessive post-trial delay without the showing of actual prejudice, we conclude that sentence relief under Article 66(c) is unwarranted. See Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); see also United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006).