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

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