United States v. Private E1 JORDAN J. JONES ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, CAMPANELLA, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 JORDAN J. JONES
United States Army, Appellant
ARMY 20110974
Headquarters, I Corps (Rear) (Provisional)
David L. Conn, Military Judge
Colonel Kurt A. Didier, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Captain Matthew R. Laird, JA (on
brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain Samuel Gabremariam, JA (on brief).
31 December 2013
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SUMMARY DISPOSITION
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Judge HAIGHT:
A military judge sitting as a general court-martial convicted appellant, in
accordance with his pleas, of attempted larceny, conspiracy to commit larceny (nine
specifications), failure to repair (eight specifications), absence without leave (two
specifications), willfully disobeying a superior commissioned officer 1, larceny,
(sixteen specifications), obstruction of justice, and bank fraud, in violation of
Articles 80, 81, 86, 90, 121, and 134, Uniform Code of Military Justice, 10 U.S.C.
1
We note the military judge, during the providence inquiry, neither defined “willful
disobedience” for appellant nor provided the Military Judge’s Benchbook
explanation of that element as “an intentional defiance of authority.”
JONES—ARMY 20110974
§§ 880, 881, 886, 890, 921, 934 (2006) [hereinafter UCMJ]. 2 The military judge
sentenced appellant to a bad-conduct discharge, to be confined for four years, and
forfeiture of all pay and allowances. The convening authority approved the
adjudged sentence and credited appellant with 168 days of confinement credit
against the sentence to confinement.
This case is before us for review under Article 66, UCMJ . Appellant raises
one assignment of error to this court as well as matters pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). However, a separate issue must first be
addressed and resolved.
LAW AND DISCUSSION
“In a case referred to it, the Court of Criminal Appeals may act only with
respect to the findings and sentence as appro ved by the convening authority.” UCMJ
art. 66(c). In this case, the convening authorit y’s action makes no mention of the
findings of the court-martial. Rule for Courts-Martial [hereinafter R.C.M.] 1107(c)
provides that “[a]ction on the findings is not required.” However, “a convening
authority who does not expressly address findings in th e action impliedly acts in
reliance on the statutorily required recommendation of the [staff judge advocate
(SJA)] and thus effectively purports to approve implicitly the findings as reported to
the convening authority by the SJA.” United States v. Diaz, 40 MJ 335, 337
(C.M.A. 1994) (internal citation omitted).
Here, neither the staff judge advocate’s recommendation (SJAR) to the
convening authority nor its addendum lists or details the findings adjudged at
appellant’s court-martial, but both instead properly rely upon the Result of Trial,
included as an enclosure to the SJAR. In accordance with R.C.M. 1106, the SJAR is
required to contain “a copy of the report of results of the trial, setting forth the
findings, sentence, and confinement credit to be applied.” R.C.M. 1106(d)(3)
(emphasis added). However, in this case, the standard DA Form 4430 Report of
Result of Trial that was enclosed with the SJAR omitted The Charge and its two
specifications. Instead, the findings and specifications listed and detailed on the DA
Form 4430 begin with Additional Charge I. 3
2
The Charge consisted of two specifications of Article 134, UCMJ, for wrongfully
communicating a threat and obstructing justice. The remaining offenses were
contained in Additional Charges I-VIII.
3
This clerical omission of The Charge and its specifications is somewhat
understandable given that appellant was ultimately charged with seventy -six
specifications under nine charges.
2
JONES—ARMY 20110974
Therefore, we are unable to determine whether the convening a uthority was
aware of the findings of the court with respect to The Charge and its specifications,
and we do not know if he approved the finding of guilty to Specification 2 of The
Charge. 4 “Simply put, if the SJAR omits or misstates a finding of guilty, we have no
jurisdiction to affirm it. We may either affirm only those findings of guilty (or
portions thereof) that are correctly and unambiguously stated in the SJAR, or return
the case to the convening authority for a new SJAR and action.” United States v.
Henderson, 56 M.J. 911, 913 (Army Ct. Crim. App. 2002). We opt to return this
case as the obstruction of justice offense for med at least part of the basis for
appellant’s pretrial confinement. Nor do we find this crime, which carries a
maximum punishment that includes five years confinement and a dishonorable
discharge, to be insignificant.
CONCLUSION
The convening authority’s initial action, dated 17 May 2012, is set aside. The
record of trial is returned to The Judge Advocate General for a new staff judge
advocate recommendation and a new action by the same or different convening
authority in accordance with Article 60(c) -(e), UCMJ.
Senior Judge COOK and Judge CAMPANELLA concur.
FOR THE COURT:
ANTHONY O. POTTINGER
Chief Deputy Clerk of Court
4
Specification 1 of The Charge was dismissed.
3