United States v. Sergeant TIFFANY L. BIZZELL

• Court: Army Court of Criminal Appeals
• Decided: November 20, 2008
• Docket: ARMY 20060660
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before ZOLPER, COOK, and BAIME Appellate Military Judges

UNITED STATES, Appellee v. Sergeant TIFFANY L. BIZZELL United States Army, Appellant

ARMY 20060660

Multi-National Corps - Iraq Michael J. Nelson, Military Judge Colonel Michele M. Miller, Staff Judge Advocate

For Appellant: Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Major Sean F. Mangan, JA; Major William M. Fischbach III, JA (on brief).

For Appellee: Colonel Denise R. Lind, JA; Lieutenant Colonel Mark H. Sydenham, JA; Major Lisa L. Gumbs, JA; Major Teresa T. Phelps, JA (on brief).

20 November 2008

-------------------------------- SUMMARY DISPOSITION --------------------------------- Per Curiam:

A military judge sitting as a special court-marital convicted appellant, pursuant to her plea, of false official statement (one specification), and contrary to her pleas, of robbery (two specifications), in violation of Uniform Code of Military Justice [hereinafter UCMJ] Articles 107 and 122; 10 U.S.C. §§ 907and 922 (2005). The military judge sentenced appellant to a bad conduct discharge, confinement for three months, forfeiture of $849.00 pay per month for three months, and reduction to Private E1. The convening authority approved the adjudged sentence. This case is before the court for review pursuant to Article 66, UCMJ.

The appellant alleges in the sole assignment of error that Specification 4 of Charge III fails to state an offense and is fatally ambiguous. We accept the government’s concession to this error. We will take appropriate corrective action in our decretal paragraph.

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. The appellant remains convicted of one specification of robbery, in Iraq, of Iraqi nationals while performing duties as a truck commander of two junior soldiers, and of one specification of making a false official statement by denying her involvement in the robbery. At trial, her defense counsel, during his sentencing argument, requested that the military judge sentence the accused to a bad conduct discharge and minimal confinement. We are confident that the military judge would have imposed a sentence of the same magnitude had appellant been found not guilty of Specification 4 of Charge III. See Moffeit, 63 M.J. at 42-44; Sales, 22 M.J. at 307.

DECISION

We have considered the remaining assignments of error, and those matters personally asserted by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit.

Considering the nature of the remaining findings of guilty, the entire record, the sentence adjudged at trial, and applying the principles of Sales, 22 M.J. at 305, and Moffeit, 63 M.J. at 40, 42-44, 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 4 of Charge III, 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