United States v. Sergeant CORY J. ORCUTT ( 2012 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    YOB, KRAUSS, and BURTON
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Sergeant CORY J. ORCUTT
    United States Army, Appellant
    ARMY 20120325
    Headquarters, XVIII Airborne Corps and Fort Bragg
    G. Bret Batdorff, Military Judge
    Colonel Paul S. Wilson, Staff Judge Advocate
    For Appellant: Major Jacob D. Bashore, JA; Captain Aaron R. Inkenbrandt (on
    brief).
    For Appellee: Lieutenant Colonel Amber J. Roach, JA (on brief).
    20 December 2012
    ---------------------------------
    SUMMARY DISPOSITION
    ---------------------------------
    KRAUSS, Judge:
    A military judge sitting as a general court-martial convicted appellant,
    pursuant to his pleas, of one specification of attempted violation of a lawful general
    regulation, one specification of absence from place of duty, three specifications of
    failure to go to appointed place of duty, and one specification of failure to obey a
    lawful general regulation, in violation of Articles 80, 86, and 92, Uniform Code of
    Military Justice, 
    10 U.S.C. §§ 880
    , 886, 892 (2006) [hereinafter UCMJ]. * The
    military judge sentenced appellant to a bad-conduct discharge, confinement for five
    months, and reduction to the grade of E-1. The convening authority approved the
    sentence as adjudged, and credited appellant with eighty-one days of pretrial
    confinement credit and illegal pretrial punishment credit against the sentence to
    confinement.
    *
    Appellant was acquitted of three specifications of failure to go to appointed place
    of duty, one specification of disobeying a superior commissioned officer, and two
    specifications of failure to obey a lawful order.
    ORCUTT—ARMY 20120325
    This case is before the court for review under Article 66, UCMJ. Appellant
    submitted his case upon its merit and personally raised two matters pursuant to
    United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982), one of which merits brief
    discussion and relief.
    We agree with appellant that a substantial basis in law and fact exists to reject
    his plea to Charge IV and its Specification in light of his admission to possession of
    a controlled substance while the regulation that served as the basis for Charge IV
    concerned possession of certain non-controlled substances only. Appellant’s
    admission to possession of “bath salts” that were indeed a form of methamphetamine
    controlled by law at the time was not the proper subject of a guilty plea to violation
    of an installation policy letter that regulated possession of non-controlled “bath
    salts” available off the shelf of legitimate businesses. Because appellant’s factual
    admissions, in essence, therefore, contradict the plea, disapproval of the finding
    based on that plea is warranted. UCMJ art. 45; see United States v. Hayes, 
    70 M.J. 454
    , 458 (C.A.A.F. 2012) (stating that “[i]f an accused sets up matter inconsistent
    with the plea at any time during the proceeding, the military judge must either
    resolve the apparent inconsistency or reject the plea.”) (quoting United States v.
    Phillippe, 
    63 M.J. 307
    , 309 (C.A.A.F. 2006)); see generally United States v.
    Inabinette, 
    66 M.J. 320
     (C.A.A.F. 2008).
    Despite disapproval of this finding of guilty, we are confident that under the
    circumstances of this case, we can reassess the sentence rather than return the matter
    for a rehearing. See United States v. Sales, 
    22 M.J. 305
     (C.M.A. 1986).
    On consideration of the entire record and those matters raised by appellant
    pursuant to Grostefon, we disapprove the findings of guilty as to Charge IV and its
    Specification. We find the remaining findings of guilty correct in law and fact.
    Accordingly, Charge IV and its Specification are dismissed; the remaining findings
    of guilty are affirmed. Reassessing the sentence on the basis of the error noted, the
    entire record, and in accordance with the principles of United States v. Sales, 
    22 M.J. 305
     (C.M.A. 1986), and United States v. Moffeit, 
    63 M.J. 40
     (C.A.A.F. 2006),
    to include the factors identified by Judge Baker in his concurring opinion in Moffeit,
    the court affirms the sentence as approved by the convening authority.
    Senior Judge YOB and Judge BURTON concur.
    FOR THE COURT:
    FOR THE COURT:
    JOANNE P. TETREAULT ELDRIDGE
    JOANNE
    Deputy       P.Court
    Clerk of TETREAULT E
    rk of Court
    2
    

Document Info

Docket Number: ARMY 20120325

Filed Date: 12/20/2012

Precedential Status: Non-Precedential

Modified Date: 1/9/2015