United States v. Private E2 JOHNNY E. ROMAN ( 2008 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HOLDEN, HOFFMAN, and SULLIVAN
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 JOHNNY E. ROMAN
United States Army, Appellant
ARMY 20070700
Headquarters, Fort Stewart
Donna M. Wright, Military Judge
Colonel Margaret A. McDevitt, Staff Judge Advocate
For Appellant: Colonel Christopher J. O’Brien, JA; Lieutenant Colonel
Steven C. Henricks, JA; Major Teresa L. Raymond, JA; Captain Nathan J.
Bankson, JA (on brief).
For Appellee: Colonel John W. Miller II, JA; Major Elizabeth G. Marotta,
JA; Captain Larry W. Downend, JA; Captain Nicole L. Fish, JA (on brief).
14 March 2008
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SUMMARY DISPOSITION
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Per Curiam:
In our review of the case under Article 66, Uniform Code of Military
Justice, 10 U.S.C. § 866, we agree with appellant that the military judge
abused her discretion in accepting his plea of guilty to Specification 3 of
Charge I, failure to go to a 0615 accountability formation, when appellant
indicated during the providence inquiry he was not aware of the 0615 time
of the morning formation. See Manual for Courts-Martial, United States
(2005 ed.), Part IV, para. 10.c.(2) (“that the accused actually knew of the
appointed time and place of duty”). “If an accused ‘sets up matter
inconsistent with the plea’ at any time during the proceeding, the military
judge must either resolve the apparent inconsistency or reject the plea.”
United States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2006) (quoting
United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996) (citations
omitted)). Accordingly, we set aside the finding of guilty to and dismiss
Specification 3 of Charge I.
The remaining findings are affirmed. Reassessing the sentence on the
basis of the error noted, the entire record, and applying the principles of
United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v.
Moffeit, including Judge
Baker’s concurring opinion, 63 M.J. 40, 43 (C.A.A.F. 2006), the court
affirms the sentence as adjudged.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court