United States v. Specialist JESSE J. DUNN

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, YOB, and ALDYKIEWICZ
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist JESSE J. DUNN
United States Army, Appellant
ARMY 20100458
Headquarters, Fort Bliss
Michael J. Hargis, Military Judge
Lieutenant Colonel Jeffrey A. Miller, Staff Judge Advocate (pretrial)
Colonel Francis P. King, Staff Judge Advocate (recommendation and addendum)
For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Laura R. Kesler, JA; Captain Meghan M. Poirier, JA.
For Appellee: Major Amber J. Williams, JA; Major Lajohnne A. White, JA.
29 February 2012
----------------------------------
SUMMARY DISPOSITION
----------------------------------
Per Curiam:
A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of two specifications of absence without leave, one
specification of violating a lawful general regulation, five specifications of wrongful
use of cocaine, and two specifications of wrongful appropriation, in violation of
Articles 86, 92, 112a, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 886,
892, 912a, and 921 [hereinafter UCMJ]. Appellant was sentenced to reduction to
Private E1, forfeiture of all pay and allowances, confinement for six months, and a
bad-conduct discharge. The convening authority approved the sentence as adjudged,
crediting appellant with five days of confinement credit against the sentence to
confinement. This case is before us for review pursuant to Article 66, UCMJ.
DUNN — ARMY 20100458
Appellant alleges the military judge erred by accepting appellant’s plea to
wrongful use of cocaine “on divers occasions” 1 when the providence inquiry failed
to establish appellant used cocaine more than once.
We agree. We find no evidence that appellant used cocaine on more than one
occasion between on or about 12 June 2009 and 19 June 2009; however, the
providence inquiry, coupled with the stipulation of fact, clearly establish appellant
used cocaine on one occasion during the aforementioned period. Therefore, this
court excepts the words “on divers occasions” from Specification 3 of Charge I,
confident that the evidence of record is both factually and legally sufficient to
sustain a finding of guilty to the specification as modified: wrongful use of cocaine
between on or about 12 June 2009 and 19 June 2009. See generally, United States v.
Scheurer, 62 M.J. 100 (C.A.A.F. 2005).
The modified finding of guilty to Specification 3 of Charge I and the
remaining findings of guilty are affirmed. We have considered the matters
personally asserted by appellant pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982), and find them to be without merit. The modification of
Specification 3 of Charge I does not dramatically change the sentencing landscape in
appellant’s case. 2 Reassessing the sentence based on the findings of guilty as
modified, the entire record, the sentence adjudged at trial, and applying the
principles of United States v. Sales, 22 M.J. 305, 307–09 (C.M.A. 1986) and United
States v. Moffeit, 63 M.J. 40, 42–44 (C.A.A.F. 2006), to include those factors
identified by Judge Baker in his concurring opinion in Moffeit, the court affirms the
sentence as approved by the convening authority.
FOR THE COURT:
FOR THE COURT:
JOANNE P. TETREAULT ELDRIDGE
Deputy Clerk of Court
JOANNE P. TETREAULT ELDRI
1
Specification 3 of Charge I, the specification at issue, reads as follows: “In that
Specialist (E-4) Jesse J. Dunn, U.S. Army, did, at or near Fort Bliss, Texas, on
divers occasions between on or about 12 June 2009 and 19 June 2009, wrongfully
use cocaine” (emphasis added).
2
Arguably, the sentencing landscape in appellant’s case is unchanged as the military
judge treated Specification 3 of Charge I as a single use offense.