United States v. Private First Class DONALD J. SPEAKMAN

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before SULLIVAN, COOK, BAIME Appellate Military Judges

UNITED STATES, Appellee v. Private First Class DONALD J. SPEAKMAN United States Army, Appellant

ARMY 20070951

Joint Task Force Guantanamo (trial) Headquarters, United States Army Armor Center and Fort Knox (new recommendation and action) Peter E. Brownback III, Military Judge Captain Patrick M. McCarthy, USN, Staff Judge Advocate (post-trial) Colonel Lisa Anderson-Lloyd, Staff Judge Advocate (new recommendation and action)

For Appellant: Major Bradley M. Voorhees, JA; Captain Michael E. Korte, JA.

For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed.

15 May 2009

--------------------------------------------------------------------- SUMMARY DISPOSITION ON FURTHER REVIEW ---------------------------------------------------------------------

Per Curiam:

Appellant was convicted, pursuant to his pleas, of conspiracy to commit an assault, assault, adultery, and providing alcohol to minors (two specifications), in violation of Articles 81, 128, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881, 928, and 934 respectively. On our original review under Article 66, UCMJ, we returned the case for a new post-trial recommendation (SJAR) under Rule for Court- Martial [hereinafter R.C.M.] 1106 and new action because the original staff judge advocate (SJA) failed to serve the SJAR on trial defense counsel or appellant. United States v. Speakman, Army 20070951 (Army Ct. Crim. App. 29 Jan. 2009) (unpub.). After a new SJAR and action by a different convening authority, the case has been resubmitted for further review without additional assignment of error.

In our further review, we note the new Promulgating Order and the original Report of Result of Trial (Dept of Army Form 4430) both incorrectly state Charge I and its specification were dismissed. They were not; appellant’s guilty pleas to this charge and specification were provident, and the military judge entered findings of guilty. The original SJAR correctly listed the pleas and findings. The new SJAR, unlike the first SJAR which was consistent with former practice, merely referenced the incorrect DA 4430 and did not separately list the findings and sentence. Compare R.C.M. 1106, Manual for Courts-Martial [hereinafter MCM] (2005) (required contents include the findings and sentence adjudged by the court- martial) with R.C.M. 1106, MCM (2008) (contents required are a copy of the report of result of trial, the summary of the pretrial agreement, any clemency recommendation by sentencing authority, and the SJA’s concise recommendation). The SJA also did not enclose the record of trial with the SJAR, which would have correctly reflected the findings of guilty to Charge I and its specification. Thus, there is no inconsistency in the information provided to the new convening authority: he was unambiguously advised Charge I and its specification were dismissed.

The convening authority has sole discretion to set aside any finding of guilty and dismiss a specification and charge. R.C.M. 1107(c)(2)(A). Where, as here, a convening authority does not expressly address findings in his action, he implicitly approves the findings as summarized in the SJAR. See United States v. Diaz, 40 M.J. 335, 337 (C.A.A.F. 1994); United States v. Alexander, 63 M.J. 269, 275 (C.A.A.F. 2008). In this case, the convening authority has dismissed Charge I and its specification. Because the dismissal was not based on a finding of legal error, the SJA was not required to advise the convening authority on corrective action on the sentence, and no remedial action is required. See United States v. Bonner, 64 M.J. 638, 640 (Army Ct. Crim. App. 2007), aff’d, 65 M.J. 321 (C.A.A.F. 2007).

The findings of guilty to Charge I and its specification are set aside and Charge I and its specification are dismissed. The remaining findings of guilty and the sentence are affirmed.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court