Filed: Nov. 01, 2017
Latest Update: Mar. 03, 2020
Summary: Major Mary Ellen Payne, USAF; Although Appellant has not raised the issue, of post-trial delay on appeal, the time between final action by the convening, authority and docketing with this court exceeded 30 days and is presumptively, unreasonable. United States v. Moreno, 63 M.J.
U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39133
______________________
UNITED STATES
Appellee
v.
Alix N. THORNE
Airman Basic (E-1), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 1 November 2017
________________________
Military Judge: Andrew Kalavanos.
Approved sentence: Bad-conduct discharge and confinement for 14 months.
Sentence adjudged 1 April 2016 by GCM convened at Joint Base Langley-
Eustis, Virginia.
For Appellant: Major Mark C. Bruegger, USAF; Major Jarett F. Merk, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Amanda L.K.
Linares, USAF; Major Mary Ellen Payne, USAF; Gerald R. Bruce, Esquire.
Before HARDING, SPERANZA, and HUYGEN, 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This is an unpublished opinion and, as such, does not serve as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:
After the convening authority took final action, 33 days elapsed before this
case was docketed with this court. Although Appellant has not raised the issue
of post-trial delay on appeal, the time between final action by the convening
authority and docketing with this court exceeded 30 days and is presumptively
unreasonable. United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006). Con-
sequently, we are required to conduct a due process review of this post-trial
United States v. Thorne, No. ACM 39133
delay. Id. Accordingly, we considered the four factors set forth in Barker v.
Wingo,
407 U.S. 514, 530 (1972), and whether the delay is so egregious as to
“adversely affect the public’s perception of the fairness and integrity of the mil-
itary justice system.” United States v. Toohey,
63 M.J. 353, 362 (C.A.A.F. 2006).
Appellant claims no legally cognizable prejudice from the delay and we find
none. Given the minimal delay, we find no adverse effect on the public’s per-
ception of the fairness and integrity of the military justice system. Therefore,
we find no due process violation.
We nonetheless considered whether relief under Article 66(c), Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 866(c), and pursuant to Tardif is ap-
propriate. United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002). In doing
so, we were guided by 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), with no sin-
gle factor being dispositive. * We remain mindful of our superior court’s admon-
ition that “delay in the administrative handling and forwarding of the record
of trial and related documents to an appellate court is the least defensible of
all [post-trial delays] and worthy of the least patience.” United States v. Dun-
bar,
31 M.J. 70, 73 (C.M.A. 1990) (internal hyphens omitted). After considering
the entirety of the post-trial processing, we conclude no exercise of Article 66(c)
relief is warranted here.
The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to Appellant’s substantial rights occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved find-
ings and sentence are AFFIRMED.
FOR THE COURT
KATHLEEN M. POTTER
Acting Clerk of the Court
* These factors include: (1) How long the delay exceeded the standards set forth in
Moreno; (2) what reasons, if any, the Government set forth for the delay and whether
there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) whether there is nonetheless evidence of harm (either to the
appellant or institutionally) caused by the delay; (4) whether the delay has lessened
the disciplinary effect of any particular aspect of the sentence and whether relief is
consistent with the dual goals of justice and good order and discipline; (5) whether
there is any evidence of institutional neglect concerning timely post-trial processing,
either across the service or at a particular installation; and (6) whether, given the pas-
sage of time, this court can provide meaningful relief in this particular situation. Gay,
74 M.J. at 744, aff’d,
75 M.J. 264 (C.A.A.F. 2016).
