United States v. Private E1 JEREMY D. WAITE ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
YOB, LIND, and KRAUSS
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 JEREMY D. WAITE
United States Army, Appellant
ARMY 20121015
Headquarters, United States Army Medical Department Center and School
Patricia H. Lewis, Military Judge
Colonel Jeffrey McKitrick, Staff Judge Advocate
For Appellant: Major Richard E. Gorini, JA; Captain Matthew M. Jones, JA (on
brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Elisabeth A. Claus, JA; Major Alison L. Gregoire, JA (on brief).
19 December 2013
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of two specifications of absence without leave, eight
specifications of failure to repair, four specifications of failure to obey a lawful
order, and five specifications of wrongful use of controlled substances in violation
of Articles 86, 92, and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 886,
892, 912a (2006) [hereinafter UCMJ]. During the trial, the military judge sentenced
appellant to a bad-conduct discharge and three months confinement, and ordered that
appellant be credited with 88 days of pretrial confinement credit. Immediate ly after
adjourning the court-martial, the military judge called a post-trial Article 39(a),
WAITE — ARMY 20121015
UCMJ, session to correct the sentence. *The military judge stated that when
announcing her three-month sentence to confinement, her intent was that appellant
be sentenced to 90 days of confinement, which meant that with the 88 days of
pretrial confinement credit, appellant would only serve 2 additional days of
confinement. The convening authority approved the adjudged sentence and credited
appellant with 88 days against the sentence to confinement .
This case is before the court for review under Article 66, UCMJ. Appellant
raises three assignments of error, only one of which merits discussion and relief.
LAW AND DISCUSSION
In his second assignment of error, appellant alleges, inter alia, that
Specification 10 of Charge I (failure to go at the time prescribed to his appointed
place of duty at 1300 on or about 7 August 2012) is an unreasonable multiplication
of charges for findings with Specification 2 of Charge I (absence from unit from on
or about 7-9 August 2012). It is well established that a soldier cannot fail to report
when the soldier is absent from his unit. See generally United States v. Morris,
18 M.J. 450 (C.M.A. 1984). See also R.C.M. 307(c)(4) discussion (“[A] person
should not be charged with both failure to report for a routine scheduled duty, such
as reveille, and with absence without leave if the failure to report occurred during
the period for which the accused is charged with absence without leave.”) .
A guilty plea will be set aside if we find a substantial basis in law or fact to
question the plea. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)
(citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). The court applies
this “substantial basis” test by determining whether the record raises a substantial
question about the factual basis of appellant’s guilty plea or the law underpinning
the plea. Id.; see also UCMJ art. 45; Rule for Courts-Martial 910(e). In this case,
neither appellant’s providence inquiry nor the stipulation of fact make clear whether
the failure to repair at 1300 in Specification 10 of Charge I occurred prior to or
during the absence from the unit beginning on 7 August 2012. We therefore find a
substantial basis in law and fact to question appellant’s plea of guilty to
Specification 10 of Charge I.
*
Rule for Courts-Martial [hereinafter R.C.M.] 1007(b), “Erroneous announcement,”
provides: “If the announced sentence is not the one actually determined by the
court-martial, the error may be corrected by a new announcement made before the
record of trial is authenticated and forwarded to the convening authority. This
action shall not constitute reconsideration of the sentence. If the court-martial has
been adjourned before the error is discovered, the military judge may call the court -
martial into session to correct the announcement. ”
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WAITE — ARMY 20121015
CONCLUSION
The finding of guilty of Specification 10 of Charge I is set aside and
dismissed. The remaining findings of guilty are AFFIRMED. Reassessing the
sentence on the basis of the error noted, the military judge’s correction of the
adjudged sentence, the entire record of trial, and applying the principles of United
States v. Sales, 22 M.J. 305 (C.M.A. 1986) and the factors set forth in United States
v. Winckelmann, M.J. , slip. op. at 12-13 (C.A.A.F. 18 Dec. 2013), the court
affirms the adjudged sentence of a bad-conduct discharge and confinement for 90
days. All rights, privileges, and property of which appellant has been deprived by
virtue of the finding of guilty set aside by the de cision are ordered restored.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
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