Filed: Aug. 21, 2015
Latest Update: Mar. 02, 2020
Summary: Sentence adjudged 24 January 2014 by GCM convened at Columbus Air, Force Base, Mississippi. Before us, the appellant seeks sentencing relief pursuant to United States v., Tardif, 57 M.J. (2) the reasons for the delay; (3) the appellants assertion of the right, to timely review and appeal;
UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Second Lieutenant DAVID M. CAMPBELL
United States Air Force
ACM 38610
21 August 2015
Sentence adjudged 24 January 2014 by GCM convened at Columbus Air
Force Base, Mississippi. Military Judge: Shaun Speranza.
Approved Sentence: Dismissal and confinement for 15 days.
Appellate Counsel for the Appellant: Major Jeffrey A. Davis and
Captain Travis L. Vaughan.
Appellate Counsel for the United States: Major Roberto Ramirez and
Gerald R. Bruce, Esquire.
Before
ALLRED, TELLER, and SANTORO
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
SANTORO, Judge:
A general court-martial composed of officer members convicted the appellant,
contrary to his plea, of the wrongful use of cocaine in violation of Article 112a, UCMJ,
10 U.S.C. § 912a. The adjudged and approved sentence was a dismissal and confinement
for 15 days. Before us, the appellant seeks sentencing relief pursuant to United States v.
Tardif, 57 M.J. 219 (C.A.A.F. 2002). We disagree and affirm.
Background
The appellant traveled to Las Vegas, Nevada, to attend a weekend bachelor party.
Upon his return he was randomly selected to provide a urine sample as part of the
Air Force’s drug testing program. The metabolite of cocaine was detected in the
appellant’s urine. Following a rights advisement, the appellant told investigators that he
had shared a hotel room with several civilians and that some of the civilian attendees
brought or obtained cocaine and other controlled substances. The appellant said he was
offered and declined pills but, after initially denying that he used cocaine, eventually told
investigators that he did ingest cocaine on a single occasion while in Las Vegas.
Post-Trial Processing Delay
Thirty-two days elapsed between the convening authority’s action and the
docketing of this case before this court. Under United States v. Moreno, 63 M.J. 129, 142
(C.A.A.F. 2006), the record should have been docketed with this court within 30 days of
the convening authority’s action.
We review de novo an appellant’s claim that he has been denied his due process
right to a speedy post-trial review and appeal. Moreno, 63 M.J. at 135. Because the
32-day period in this case is facially unreasonable, see
id. at 142, we examine the claim
under the four factors set forth in Barker v. Wingo,
407 U.S. 514, 530 (1972): “(1) the
length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right
to timely review and appeal; and (4) prejudice.”
Moreno, 63 M.J. at 135. If we are able
to conclude directly that any error was harmless beyond a reasonable doubt, we do not
need to engage in a separate analysis of each factor. See United States v. Allison,
63 M.J. 365, 370 (C.A.A.F. 2006).
The appellant does not argue that he has been personally prejudiced by the delay.
While we agree that Moreno violations are unacceptable, we find beyond a reasonable
doubt that the appellant was not harmed by the two-day delay and is thus not entitled to
relief under Moreno.
However, that does not end the inquiry, as we may grant sentence relief under
Article 66(c), UCMJ, 10 U.S.C. § 866(c), even when we find no prejudice in
unreasonable post-trial delays. United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F.
2002); see also United States v. Toohey,
63 M.J. 353, 362 (C.A.A.F. 2006) (finding
delays were “such that tolerating them would adversely affect the public’s perception of
the fairness and integrity of the military justice system”). However, “[a]ppellate relief
under Article 66(c) should be viewed as the last recourse to vindicate, where appropriate,
an appellant’s right to timely . . . review.”
Tardif, 57 M.J. at 225.
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We have examined the entirety of the post-trial process. Aside from the two-day
delay in docketing the record with this court, the remainder of the post-trial activities
occurred within established time standards, and we detect nothing that would suggest this
is a case in which the public’s perception of the fairness and integrity of the system could
reasonably he questioned. We therefore decline to grant Tardif relief.
Conclusion
The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Article 66(c),
UCMJ, 10 U.S.C. § 866(c). Accordingly, the findings and the sentence are AFFIRMED.
FOR THE COURT
STEVEN LUCAS
Clerk of the Court
3 ACM 38610
