United States v. Private E2 PHILLIP P. GOBERT ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
YOB, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 PHILLIP P. GOBERT
United States Army, Appellant
ARMY 20110941
Headquarters United States Army Training Center and Fort Jackson
Bret Batdorff, Military Judge
Colonel Mark W. Seitsinger, Staff Judge Advocate
For Appellant: Major Richard E. Gorini, JA; Captain James S. Trieschmann, JA.
For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed.
15 May 2013
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SUMMARY DISPOSITION
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BURTON, Judge:
A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of one specification of willfully disobeying a
noncommissioned officer and four specifications of violating a lawful general order
in violation of Articles 91 and 92, Uniform Code of Military Justice, 10 U.S.C. §§
891, 892 (2006) [hereinafter UCMJ]. Contrary to his pleas, appellant was convicted
of one specification of wrongful sexual contact in violation of Article 120, UCMJ,
10 U.S.C. § 920 (2006). The court-martial sentenced appellant to a bad-conduct
discharge, confinement for 150 days, and reduction to the grade of E-1.
This case is before the court for review under Article 66, UCMJ. Appellant
submitted the case on its merits.
Pursuant to the ultimate offense doctrine and in light of the fact that breaking
restriction can no longer be considered a lesser included offense of willfully
disobeying a noncommissioned officer, despite the pleadings suggesting otherwise,
we find a substantial basis in law and fact to reject appellant’s plea to Charge II and
its Specification.
GOBERT—ARMY 20110941
The providence inquiry does not develop or establish sufficient facts to
support a plea of guilty to a violation of Article 91, UCMJ, but rather merely
establishes the offense of breaking restriction in violation of Article 134, UCMJ.
Absent admission or stipulation that the noncommissioned officer with “the full
authority of his office” intended to “lift [the duty to remain within certain limits]
above the common ruck,” United States v. Loos, 4 U.S.C.M.A. 478, 480–81, 16
C.M.R. 52, 54–55 (1954), the “ultimate offense” in this case was breaking
restriction. See United States v. Traxler, 39 M.J. 476, 478 (C.M.A. 1994); United
States v. Peaches, 25 M.J. 364, 366 (C.M.A. 1987); United States v. Bratcher, 18
U.S.C.M.A. 125, 39 C.M.R. 125, 128 (1969). In addition, the offense of breaking
restriction can no longer be considered a lesser included offense of disobeying a
noncommissioned officer so this court is not free to substitute the former for the
latter. See generally United States v. Jones, 68 M.J. 465, 472 (C.A.A.F. 2010).
Therefore, we find a substantial basis in law and fact to reject appellant’s
plea of guilty to Charge II and its Specification and disapprove the finding of guilty.
See United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008).
CONCLUSION
On consideration of the entire record, the finding of guilty of Charge II and
its Specification is set aside and 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. All rights, privileges,
and property, of which appellant has been deprived by virtue of that portion of his
sentence set aside by this decision, are ordered restored. See UCMJ arts. 58(c) and
75(a).
Senior Judge YOB and Judge KRAUSS concur.
FOR THE COURT:
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES JR.
Clerk of Court
Clerk of Court
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