United States v. Sergeant ROBERT S. CHIARAVALLOTTI ( 2015 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                            HERRING, CAMPANELLA, and BURTON
                                  Appellate Military Judges
    
                               UNITED STATES, Appellee
                                            v.
                        Sergeant ROBERT S. CHIARAVALLOTTI
                              United States Army, Appellant
    
                                       ARMY 20130166
    
                    Headquarters, I Corps and Joint Base Lewis-McChord
                              Stefan R. Wolfe, Military Judge
                     Colonel William R. Martin, Staff Judge Advocate
    
    For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain Brian
    J. Sullivan (on brief); Captain Brian J. Sullivan, JA; Mr. C. Ed Massey, Esquire (on
    supplemental brief); Captain J. David Hammond, JA; Mr. C. Ed Massey, Esquire (on
    reply brief).
    
    For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie, III, JA; Major John
    K. Choike, JA; Captain Jihan Walker, JA (on brief); Major A.G. Courie, III, JA;
    Major John K. Choike, JA; Captain Jihan Walker, JA (on supplemental brief).
    
                                        21 October 2015
    
                                   ---------------------------------
                                   SUMMARY DISPOSITION
                                   ---------------------------------
    Per Curiam:
    
           A military judge sitting as a general court-martial convicted appellant,
    pursuant to his plea, of unpremeditated murder, aggravated sexual assault of a child,
    rape of a child, and battery upon a child, in violation of Articles 118, 120, 120b and
    128, Uniform Code of Military Justice, 10 U.S.C. §§ 918, 920, 920b, 928 (2012,
    2006 & Supp. V) [hereinafter UCMJ]. The military judge sentenced appellant to a
    dishonorable discharge, confinement for life without the possibility of parole,
    forfeiture of all pay and allowances, and reduction to Private E1. The convening
    authority approved the sentence as adjudged, but waived the automatic forfeitures
    for a period of six months, until Expiration of Term of Service, or release from
    confinement, whichever is earlier, with direction that these funds be paid for the
    benefit of appellant’s children.
    
          This case is before us for review pursuant to Article 66, UCMJ. Appellate
    defense counsel raised four assignments of error and appellant personally raised
    CHIARAVALLOTTI—ARMY 20130166
    
    matters pursuant to United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982). We find
    one issue raised—the convening authority’s initial action—merits discussion and
    relief. Those matters personally raised by appellant pursuant to Grostefon are
    without merit.
    
           On 8 March 2013, the convening authority approved appellant's request for
    deferment of automatic and adjudged forfeitures until action pursuant to his
    authority under Article 57(a), UCMJ. At action on 9 January 2014, he approved the
    sentence as adjudged. In the same action the convening authority waived automatic
    forfeiture of all pay and allowances. However, the convening authority failed to
    disapprove the adjudged forfeitures, leaving no pay and allowances to waive for the
    benefit of appellant’s dependents.
    
           First, we note waiver of forfeitures for the benefit of dependents is applicable
    to automatic forfeitures, not adjudged. See Article 58b(b), UCMJ. Second, upon
    approving the adjudged forfeitures in the initial action, the convening authority’s
    attempt to then waive the automatic forfeitures created legal impossibility. See
    generally United States v. Emminizer, 
    56 M.J. 441
     (C.A.A.F. 2002). We find that
    the clear intent of the convening authority at the time of action was to disapprove the
    adjudged forfeitures, to waive the automatic forfeitures, and to direct those funds to
    be payable for the benefit of appellant’s children. His failure to accomplish that
    intent was an administrative error. Therefore, in order to effectuate the clear intent
    of the convening authority and in the spirit of judicial economy, we will correct this
    error by granting relief in our decretal paragraph.
    
                                       CONCLUSION
    
           On consideration of the entire record, those matters personally raised by
    appellant pursuant to Grostefon, and the assigned errors, the findings of guilty are
    AFFIRMED. Only so much of the sentence as provides for a dishonorable discharge,
    confinement for life without the possibility of parole, and reduction to the grade of
    Private E1 is AFFIRMED. All rights, privileges, and property, of which appellant
    was deprived by virtue of that portion of his sentence being set aside by this
    decision, are ordered restored. See UCMJ arts. 58(b) and 75(a).
    
    
                                          FOR
                                           FORTHE
                                               THECOURT:
                                                   COURT:
    
    
    
                                          MALCOLM H. SQUIRES, JR.
                                           MALCOLM
                                          Clerk of CourtH. SQUIRES, JR.
                                           Clerk of Court
    
    
    
                                               2
    

Document Info

DocketNumber: ARMY 20130166

Filed Date: 10/21/2015

Precedential Status: Non-Precedential

Modified Date: 10/26/2015