United States v. Private First Class RODOLFO SERNA-RAMIREZ

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before SIMS, COOK, and GALLAGHER Appellate Military Judges UNITED STATES, Appellee v. Private First Class RODOLFO SERNA-RAMIREZ United States Army, Appellant ARMY 20100129 101st Airborne Division (Air Assault) Timothy Grammel, Military Judge Colonel William R. Kern, Staff Judge Advocate (pretrial) Lieutenant Colonel Joseph B. Morse, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Kristin McGrory, JA (on brief).

For Appellee: Major Amber Williams, JA; Captain Chad M. Fisher, JA; Captain John D. Riesenberg, JA (on brief).

18 October 2011 ---------------------------------- SUMMARY DISPOSITION ---------------------------------- Per Curiam: A military judge, sitting as a general court-martial, convicted appellant, contrary to his plea, of aggravated sexual assault, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 [hereinafter UCMJ]. Appellant was sentenced to a bad-conduct discharge, confinement for three years, forfeiture of all pay and allowances, and reduction in rank to E1. The convening authority approved the sentence as adjudged. The convening authority waived the automatic forfeiture of all pay and allowances for a period of six months, effective 21 June 2010.

This case is before us for review pursuant to Article 66, UCMJ.

On consideration of the entire record, the assigned error, and the matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), we find appellant’s arguments to be without merit.[1] The findings of guilty are affirmed and, except for that part of the sentence that includes forfeiture of all pay and allowances, the court affirms the sentence.[2] All rights, privileges, and property, of which appellant was deprived by virtue of that portion of his sentence being set aside by this decision, are hereby ordered restored. See UCMJ arts. 58(b) and 75(a).

FOR THE COURT:

MALCOLM H. SQUIRES JR. Clerk of Court ----------------------- [1] The military judge erred in applying an instruction that was inconsistent with Article 120, UCMJ. However, under the facts of this case, we are satisfied that this error was harmless beyond a reasonable doubt. The military judge stated the law he was going to apply and demonstrated a clear and correct understanding as to the burden resting solely on the government with regards to the defense of consent and any mistake of fact as to consent. United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011) (citing Martin v. Ohio, 480 U.S. 228, 234 (1987)). [2] The convening authority approved appellant’s request for deferment of automatic and adjudged forfeitures until action and waiver of forfeitures for a six month period after action. Subsequently, the waiver of forfeitures for the benefit of appellant’s spouse was restated in the convening authority’s action. However, the action also approved the adjudged sentence which included total forfeiture of pay and allowances, thus leaving no pay and allowances to waive for the benefit of appellant’s spouse. The staff judge advocate provided erroneous advice to the convening authority that led to the conflicting action. In order to effectuate the clear intent of the convening authority and in the spirit of judicial economy, we set aside that portion of the sentence that included total forfeitures of pay and allowances.