United States v. Sergeant STACY N. SHERROD

• Court: Army Court of Criminal Appeals
• Decided: September 30, 2008
• Docket: ARMY 20070932
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before ZOLPER, COOK, and BAIME Appellate Military Judges

UNITED STATES, Appellee v. Sergeant STACY N. SHERROD United States Army, Appellant

ARMY 20070932

Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell Richard J. Anderson and Theodore E. Dixon, Military Judges Colonel Peter M. Cullen, Staff Judge Advocate

For Appellant: Major Sean F. Mangan, JA; Major Sean S. Park, JA.

For Appellee: Lieutenant Colonel Francis C. Kiley, JA.

30 September 2008

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

Per Curiam:

Contrary to her pleas, appellant was convicted at a special court- martial empowered to adjudge a bad-conduct discharge, by officer and enlisted members, of absence without leave, missing movement, disrespect toward a superior commissioned officer, and insubordinate conduct toward a non-commissioned officer (nine specifications), in violation of Uniform Code of Military Justice [hereinafter UCMJ], Articles 86, 87, 89, and 91; 10 U.S.C. §§ 896, 897, 891, and 891 (2005). The members sentenced appellant to a bad-conduct discharge, confinement for one hundred and twenty (120) days, forfeiture of $972.00 pay per month for four months, and reduction to Private E1. The convening authority approved the sentence as adjudged, except he approved forfeitures only in the amount of $867.00 pay per month for four months.

Although not raised by either appellant’s post-trial Rules for Courts- Martial 1105/1106 matters or her appeal to this court, we find that the evidence contained in the record of trial is factually insufficient to support a finding of guilty of Specification 3 of Charge IV, disobeying a noncommissioned officer. In accordance with our UCMJ, Article 66 authority, we disapprove the finding of guilty of Specification 3 of Charge IV; all other findings of guilty are affirmed. We are confident that we can “reliably determine what sentence would have been imposed at the trial level if the error had not occurred.” United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986). Significantly, we note there was no “relative change in sentencing landscape.” United States v. Moffeit, 63 M.J. 40, 42-44 (C.A.A.F. 2006) (Baker, J., concurring). The maximum possible punishment has not changed, and appellant’s offenses and the aggravating circumstances related to the offenses remain almost entirely unaffected. Additionally, the members sentenced appellant to a bad-conduct discharge, confinement for 120 days, forfeiture of $972.00 pay per month for four months (the convening authority approved the jurisdictional maximum allowable amount of $867 pay per month for four months), and reduction to Private E1—a sentence well below the authorized maximum punishment. On numerous separate occasions appellant disrespected her chain of command and disregarded direct lawful orders given to her by those serving in superior positions. We are, therefore, confident the panel members would have imposed a sentence of the same magnitude had appellant been found not guilty of Specification 3 of Charge IV. See Moffeit, 63 M.J. at 42-44; Sales, 22 M.J. at 307.

DECISION

Considering the nature of the remaining findings of guilty, the entire record, the sentence adjudged at trial, and applying the principles of Moffeit, 63 M.J. at 40, 42-44 and Sales, 22 M.J. at 305, to include those principles identified by Judge Baker in his concurring opinion, we are confident with our determination in this case. “[W]e perceive no reasonable possibility of benefit to [appellant] by remand of the record . . . for reassessment of the sentence.” United States v. Sims, 57 M.J. 419, 422 (C.A.A.F. 2002) (citation omitted). Therefore, we dismiss the finding of guilty for Specification 3 of Charge IV, affirm the remaining findings of guilty, and affirm the sentence as approved by the convening authority.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court