United States v. Staff Sergeant JOSHUA D. SMITH

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges UNITED STATES, Appellee v. Staff Sergeant JOSHUA D. SMITH United States Army, Appellant ARMY 20160307 Headquarters, 1st Special Forces Command (Airborne) Deidra Fleming, Military Judge

Lieutenant Colonel Terri J. Erisman, Staff Judge Advocate (pretrial) Lieutenant Colonel Scott T. Ayers, Staff Judge Advocate (recommendation)

Major Nathan J. Bankson, Acting Staff Judge Advocate (addendum) For Appellant: Captain Joshua B. Fix, JA; Philip D. Cave, Esquire (on brief and supplemental brief); Captain Zachary A. Gray, JA; Philip D. Cave, Esquire (on reply brief).

For Appellee: Colonel Tania M. Martin, JA; Captain Marc B. Sawyer, JA; Captain Jonathan S. Reiner, JA (on brief).

18 June 2018

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SUMMARY DISPOSITION

---------------------------------- Per Curiam:

A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of one specification of aggravated sexual assault of a child, one specification of abusive sexual contact of a child, three specifications of indecent liberties with a child, two specifications of assault consummated by a battery upon a child under the age of 16, one specification of assault consummated by battery, and one specification of communicating a threat, in violation of Articles 120, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 928, and 934 (2006 & Supp. I 2008) [UCMJ]. The military judge sentenced appellant to a dishonorable discharge, confinement for nine years, and reduction to the grade of E- 1. The convening authority (CA) approved the sentence, but credited appellant with 120 days against confinement for dilatory post-trial processing. See United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).

SMITH—ARMY 20160307

This case is before us for review pursuant to Article 66, UCMJ. Appellant raises two issues, one of which, involving proper credit for illegal pretrial punishment, merits discussion and relief. 1 Appellant correctly asserts the CA’s action failed to properly credit appellant forty-five days for Article 13, UCMJ credit. Therefore, we provide appellant forty-five days confinement credit in our decretal paragraph. We have considered the matters personally asserted by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they lack merit.

DISCUSSION

After reviewing the record of trial, we would have summarily affirmed appellant’s conviction but for the multiple errors by the Staff Judge Advocate’s (SJA) office in preparing the action in this case for the CA. 2

Prior to trial, appellant was placed in pretrial restraint under Rule for Court- Martial [R.C.M.] 304 in the form of conditions on his liberty. At trial, trial and defense counsel agreed that appellant should receive forty-five days of confinement credit for a violation of Article 13, UCMJ, and the military judge so awarded this relief upon announcement of the sentence. The credit was properly noted in the initial Staff Judge Advocate Recommendation (SJAR). Subsequently, appellant SMITH—ARMY 20160307 requested in his Rules for Courts-Martial 1105 and 1106 matters a reduction of his sentence for dilatory post-trial processing. In the SJA addendum, the SJA agreed there was an unreasonable delay, and recommended “120 days confinement credit should be granted on the basis of post-trial delay.” However, the addendum failed to advise the CA that the appellant should have been be credited forty-five days for the Article 13 violation and the CA’s action was silent as to this credit. On appeal, the government concedes the initial action was incorrect.

While conducting our Article 66(c) review we noticed an additional error in the CA’s action. Namely, the CA’s initial action failed to account for the prior deferral of the automatic forfeitures and adjudged and automatic reduction in grade prior to action, and waiver of automatic forfeitures after action, 3 as directed in Army Reg. 27-10, Legal Services: Military Justice, para. 5-32 (11 May 2016).

In the interest of judicial economy, this court takes corrective action in the decretal paragraph. See United States v. Adney, 61 M.J. 554, 557 (Army Ct. Crim. App. 2005).

CONCLUSION

Upon consideration of the entire record, we AFFIRM the findings of guilty. We AFFIRM only so much of the sentence as extends to a dishonorable discharge, confinement nine years, and reduction to the grade of E-1. The convening authority deferred automatic forfeitures and reduction in grade from 13 May 2016 until initial action on 2 February 2017. Upon taking action on 2 February 2017 the convening authority waived automatic forfeiture of pay and allowances required under Article 58b, UCMJ, for a period of six months and directed the disbursement of the waived forfeitures, by allotment, as follows: one allotment for $800 to CH on behalf of appellant’s biological son, D, and the remainder in a separate allotment to Mrs. MS. Appellant will be credited with 165 days confinement against the sentence to confinement.

All rights, privileges, and property, of which appellant has been deprived by virtue of this decision are ordered restored. See UCMJ 58a(b), 58b(c), and 75(a).

FOR FORTHE

THECOURT:

COURT:

JOHN JOHNP.P.

TAITT

TAITT

Chief ChiefDeputy

DeputyClerk of Court

Clerk of Court