United States v. Private First Class JACOB B. RICHERT ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, CAMPANELLA, HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class JACOB B. RICHERT
United States Army, Appellant
ARMY 20120781
Headquarters, Fort Carson
Timothy Grammel, Military Judge
Colonel John S.T. Irgens, Staff Judge Advocate
For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain Matthew M.
Jones, JA (on brief).
For Appellee: Lieutenant Colonel James L. Varley, JA; Major Catherine L.
Brantley, JA; Captain Samuel Gabremariam, JA (on brief).
12 August 2013
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SUMMARY DISPOSITION
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CAMPANELLA, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his plea, of one specification of possessing child pornography, in
violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (2006)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for seventeen months, forfeiture of all pay and allowances,
and reduction to the grade of E1. Pursuant to a pretrial agreement, the convening
authority approved only so much of the sentence as provided for a bad-conduct
discharge, confinement for sixteen months, forfeiture of all pay and allowances, and
reduction to the grade of E1. The convening authority approved appellant’s request
to waive forfeitures.
This case is before us for review pursuant to Article 66, UCMJ. Appellate
defense counsel raises one assignment of error and appellant personally raises
matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). As
pointed out by appellate defense counsel in their brief and upon our review under
Article 66, UCMJ, we find an issue with the convening authority’s initial action and
RICHERT—ARMY 20120781
address this below. Those matters personally raised by appellant pursuant to
Grostefon are without merit.
The convening authority approved appellant's request for deferment of
automatic and adjudged forfeitures unti l initial action. Then, at action, the
convening approved adjudged forfeiture of all pay and allowances but ordered that
both adjudged and automatic forfeitures be waived for a period of six months and
paid to the appellant’s wife.
First, we note waiver of forfeitures for the benefit of dependents is applicable
to automatic forfeitures, not adjudged. Second, upon approving the adjudge d
forfeitures, the convening authority’s attempt to further waive the automatic
forfeitures became legally and procedurally impossible. 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 to appellant’s wife. His failure to accomplish that intent was an
administrative oversight. Therefore, i n 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, submissions by the parties, and those
matters personally raised by appellant pursuant to Grostefon, we hold the findings of
guilty are correct in law in fact and are AFFIRMED.
Reassessing the sentence on the basis of the error noted and the entire record,
and applying the criteria 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 op inion in Moffeit, only so much of the
sentence as provides for a bad-conduct discharge, confinement for sixteen months,
and reduction to the grade of E1 is AFFIRMED. All rights, privileges, and property,
of which appellant was deprived by virtue of that p ortion of his sentence being set
aside by this decision, are hereby ordered restored. See UCMJ arts. 58(b) and 75(a).
Senior Judge COOK and Judge HAIGHT concur.
FOR THE COURT:
ANTHONY O. POTT
Chief Deputy
ANTHONY Clerk o
O. POTTINGER
Chief Deputy Clerk of Court
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