United States v. Private E2 JOHNNY E. ROMAN

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