United States v. Private First Class STEVEN E. WALKER

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before HOLDEN, HOFFMAN, and SULLIVAN Appellate Military Judges

UNITED STATES, Appellee v. Private First Class STEVEN E. WALKER United States Army, Appellant

ARMY 20071167

19th Sustainment Command (Expeditionary) Donna M. Wright, Military Judge Lieutenant Colonel Imogene M. Jamison, Staff Judge Advocate

For Appellant: Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Grace Gallagher, JA; Captain Pamela Perillo, JA (on brief).

For Appellee: Colonel Denise R. Lind, JA; Lieutenant Colonel Mark H. Sydenham, JA; Major Lisa L. Gumbs, JA; Captain Christopher R. Clements, JA (on brief).

31 October 2008

------------------------------------- SUMMARY DISPOSITION -------------------------------------

Per Curiam:

This case is before us for review under Article 66, Uniform Code of Military Justice, 10 U.S.C. §866 [hereinafter UCMJ]. Appellant was found guilty, pursuant to his pleas, of numerous larcenies in violation of Article 121, UCMJ, and several other offenses. For one of the larcenies, however, appellant pled guilty by exceptions and substitutions to the lesser included offense of attempted larceny. Prior to findings, the language of that specification was amended to conform to appellant’s pleas. Despite the change in language of the specification, the military judge failed to amend the charge from Article 121, UCMJ, to Article 80, UCMJ, as required. Accordingly, we take corrective action and amend the finding of guilty of Additional Charge I to reflect a violation of Article 80, UCMJ. See United States v. Perkins, 56 M.J. 825, 827 (Army Ct. Crim App. 2001) (quotation marks and citation omitted) (“[A] verdict is sufficient if it decides the questions in issue in such a way as to enable the court intelligently to base judgment thereon and can form the basis for a bar to subsequent prosecution for the same offense.”).

We note an additional error. The Staff Judge Advocate failed to inform the convening authority of fifteen days of confinement credit ordered by the military judge and the action also failed to include the credit. See Army Reg. 27-10, Legal Services: Military Justice, para. 5- 32a (16 Nov. 2005) (requiring a convening authority to “show in [the] initial action all credits against a sentence to confinement . . . regardless of the source of the credit . . . or for any . . . reason specified by the judge”); United States v. Delvalle, 55 M.J. 648, 649 n.1, 656 (Army Ct. Crim. App. 2001); United States v. Arab, 55 M.J. 508, 510 n.2, 520 (Army Ct. Crim. App. 2001). Accordingly, to the extent appellant has not already received this credit, appellant will be credited with fifteen days of confinement credit.

We have considered those matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit. Reassessing the sentence on the basis of the error noted and the entire record, and applying the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1988) and United States v. Moffeit, 63 M.J. 40, 43 (C.A.A.F. 2006), including Judge Baker’s concurring opinion, the sentence is affirmed.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court