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

                        No. ACM S32635 (f rev)
                        ________________________

                           UNITED STATES
                               Appellee
                                    v.
                      Spencer L. KILCREASE
            Senior Airman (E-4), U.S. Air Force, Appellant
                        ________________________

       Appeal from the United States Air Force Trial Judiciary
                         Upon Further Review
                       Decided 8 February 2021
                        ________________________

Military Judge: Elizabeth M. Hernandez.
Sentence: Sentence adjudged 18 November 2019 by SpCM convened at Maxwell
Air Force Base, Alabama. Sentence entered by military judge on 23 December
2019 and reentered on 18 November 2020: Bad-conduct discharge, confinement
for 130 days, reduction to E-1, and a reprimand.
For Appellant: Major Kirk W. Albertson, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Captain
Cortland T. Bobczynski, USAF; Mary Ellen Payne, Esquire.
Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military
Judges.
Judge MEGINLEY delivered the opinion of the court, in which Senior
Judge POSCH and Judge RICHARDSON joined.
                        ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 30.4.
                      ________________________
               United States v. Kilcrease, No. ACM S32635 (f rev)


MEGINLEY, Judge:
   A special court-martial composed of a military judge sitting alone found
Appellant guilty, in accordance with his pleas and pursuant to a plea agree-
ment, of one specification of dereliction of duty, in violation of Article 92, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. § 892; one specification of
communicating a threat, in violation of Article 115, UCMJ, 10 U.S.C. § 915;
and one specification of aggravated assault, in violation of Article 128, UCMJ,
10 U.S.C. § 928. 1
    As part of his plea agreement with the convening authority, Appellant
waived his right to a trial by members and requested to be tried by military
judge alone. As such, the provisions outlined in Rule for Courts-Martial
(R.C.M.) 705, Plea agreements and R.C.M. 1002(d)(2), Sentencing determina-
tion, applied to Appellant’s case. 2 On 18 November 2019, the military judge
sentenced Appellant to a bad-conduct discharge, a total of 130 days of confine-
ment, reduction to the grade of E-1, and a reprimand. Appellant was credited
with 69 days against his sentence for time served in pretrial confinement. On
23 December 2019, the convening authority decided to take no action on Ap-
pellant’s sentence and the military judge signed the entry of judgment (EoJ)
the same day. 3
   Appellant raised two assignments of error (AOE) relating to the post-trial
processing in his case: (1) whether Appellant’s record should be returned for


1All offenses occurred after 1 January 2019. Thus, all references to the Uniform Code
of Military Justice (UCMJ) and the Rules for Courts-Martial (R.C.M.) are to the Man-
ual for Courts-Martial, United States (2019 ed.). Further, the Military Justice Act of
2016, National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328,
§§ 5001–5542 (23 Dec. 2016), as fully implemented by Exec. Order 13,825, 83 Fed. Reg.
9889 (

), applied to Appellant’s court-martial and post-trial processing.
2 See Exec. Order 13,825, §§ 5 and 10, 83 Fed. Reg. at 9890–91. As part of his plea
agreement, Specification 2 of Charge III was withdrawn and dismissed. The parties
agreed that to Charge I and its Specification, the maximum amount of confinement
Appellant would serve was 90 days, for Charge II and its Specification, 180 days, and
for Charge III, Specification 1, 180 days. The minimum amount of confinement for each
charge was zero (0) days confinement. Appellant received 15 days, 100 days, and 130
days for each charge, respectively. The intent of the parties regarding adjudged con-
finement was that any sentence to confinement would be served concurrently.
3 Appellant was found guilty of charges and specifications that alleged the commission
of offenses on or after 1 January 2019. Articles 60a and 60b, UCMJ, 10 U.S.C. §§ 860a,
860b, and R.C.M. 1109 and 1110, applied to the convening authority’s decision on ac-
tion. See Exec. Order 13,825, §§ 3 and 5, 83 Fed. Reg. at 9890 (

).




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               United States v. Kilcrease, No. ACM S32635 (f rev)


correction of the Statement of Trial Results and EoJ, and (2) whether the Gov-
ernment’s post-trial delay entitles Appellant to sentence appropriateness re-
lief. 4
     Regarding Appellant’s first AOE, by order of this court on 9 November
2020, we remanded Appellant’s record of trial to the Chief Trial Judge, Air
Force Trial Judiciary, for correction of the EoJ. United States v. Kilcrease, No.
ACM S32635, 2020 CCA LEXIS 407 (A.F. Ct. Crim. App. 9 Nov. 2020) (order).
On 18 November 2020, the military judge corrected the EoJ and the record of
trial was returned to this court the next day. We have reviewed the corrections
made to the EoJ and those corrections comply with this court’s order. As such,
we find this issue has been resolved. Appellant did not submit any additional
filings with this court.
   Regarding Appellant’s second AOE, we find no error prejudicial to the sub-
stantial rights of Appellant, and we affirm the findings and sentence.

                                   I. DISCUSSION
    Appellant argues he is entitled to relief because his case was not docketed
with this court within 30 days of the convening authority’s Decision on Action.
In United States v. Moody-Neukom, this court addressed issues regarding en-
tries of judgment in place of the convening authority’s action 5 and how future
post-trial processing will be analyzed under United States v. Moreno, 

, 142 (C.A.A.F. 2006):
       In Moreno, the [United States Court of Appeals for the Armed
       Forces (CAAF)] identified thresholds for facially unreasonable
       delay for particular segments of the post-trial and appellate pro-
       cess.

Specifically, the CAAF established a pre-




4Appellant personally raises this issue pursuant to United States v. Grostefon, 

(C.M.A. 1982).
5The EoJ has the significance that action once had, and a convening authority is not
required to act on the findings, R.C.M. 1110(e)(1)–(2), or the sentence, R.C.M.
1109(c)(5)(A), (g)(2); R.C.M. 1110(c), (e)(3).
       The entry of judgment takes the place of action by the convening au-
       thority under the former procedures in the sense that it terminates the
       trial proceedings and initiates the appellate process. R.C.M. 1111(a)(2).
       After the military judge enters the judgment, the court reporter pre-
       pares and certifies the record of trial and attaches additional matters
       to the record for appellate review. R.C.M. 1112(c), (f).
Moody-Neukom, 2019 CCA LEXIS 521, at *3–4.


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              United States v. Kilcrease, No. ACM S32635 (f rev)


       sumption of facially unreasonable delay where the convening au-
       thority did not take action within 120 days of the completion of
       trial, where the record was not docketed with the court of crimi-
       nal appeals within 30 days of the convening authority’s action,
       or where the court of criminal appeals did not render a decision
       within 18 months of docketing.

No. ACM S32594, 2019 CCA LEXIS 521, at *4 (A.F. Ct. Crim. App. 16 Dec.
2019) (per curiam) (unpub. op.). However, as we recently noted in United States
v. Livak,
       [d]epending on the length and complexity of the record involved,
       we can envision cases in which the court reporter is still tran-
       scribing the proceedings after the convening authority’s deci-
       sion. As such, the prior 30-day period from action to docketing,
       which primarily involved transmitting an already-completed
       [record of trial] to the Court of Criminal Appeals, now overlays
       substantive actions such as completing the preparation of the
       record.

, 633 (A.F. Ct. Crim. App. 2020). Additionally, this court held:
       [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-
       ever, we can apply the aggregate standard threshold the major-
       ity established in Moreno: 150 days from the day [the a]ppellant
       was sentenced to docketing with this court. See 

. This 150-day threshold appropriately protects an appel-
       lant’s due process right to timely post-trial and appellate review
       and is consistent with our superior court’s holding in Moreno.

(footnote omitted).
    Considering Livak, we review the dates of the post-trial processing in Ap-
pellant’s case. Appellant’s trial concluded on 18 November 2019. The Defense
submitted clemency matters on 18 December 2019, after requesting and re-
ceiving an additional 20 days to submit such matters. The convening authority
effectuated the sentence by his decision on action on 23 December 2019, and
the military judge signed the EoJ the same day. The court reporter certified
the record of trial on 31 December 2019. The record was docketed with this
court on 23 January 2020. From the convening authority’s decision on action
to the docketing of Appellant’s case with this court, 31 days passed. From the
conclusion of trial to the docketing of Appellant’s case with this court, 66 days
passed, which is substantially less than the 150 days for a threshold showing
of facially unreasonable delay that we announced in Livak, where 82 days


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              United States v. Kilcrease, No. ACM S32635 (f rev)


passed. See 

. Thus, we find no facially unreasonable delay
occurred and no violation of the Appellant’s due process rights.
    Assuming arguendo that there was a facially unreasonable delay, we have
assessed whether there was a due process violation by considering the four
factors the CAAF identified in Moreno: “(1) the length of the delay; (2) the rea-
sons for the delay; (3) the appellant’s assertion of his right to a timely review
and appeal; and (4) prejudice [to the appellant].” 

(cita-
tions omitted). We have also considered that where an appellant has not shown
prejudice from the delay, there is no due process violation unless the delay is
so egregious as to “adversely affect the public’s perception of the fairness and
integrity of the military justice system.” United States v. Toohey, 

,
362 (C.A.A.F. 2006). We discern no prejudice, and we find no violation of Ap-
pellant’s due process rights.
    In the absence of a due process violation, we consider whether relief for
excessive post-trial delay is warranted and consistent with this court’s author-
ity under Article 66(d), UCMJ, 10 U.S.C. § 866(d). See United States v. Gay, 

, 744 (A.F. Ct. Crim. App. 2015), aff’d, 

(C.A.A.F. 2016);
United States v. Tardif, 

, 224 (C.A.A.F. 2002). Having considered
the entire record, and the particular facts and circumstances of this case, we
find Appellant is not entitled to relief on this issue.

                              II. CONCLUSION
   Upon further review, the findings and sentence entered are correct in law
and fact, and no error materially prejudicial to the substantial rights of Appel-
lant occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Ac-
cordingly, the findings and the sentence are AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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