United States v. Private E2 KIARA J. SHEPPARD

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before CONN, HOFFMAN, and CARLTON Appellate Military Judges UNITED STATES, Appellee v. Private E2 KIARA J. SHEPPARD United States Army, Appellant ARMY 20100056 Headquarters, United States Army Special Operations Command Gary J. Brockington, Military Judge Colonel Mark W. Seitsinger, Staff Judge Advocate For Appellant: Major Grace M. Gallagher, JA; Captain Jess B. Roberts, JA For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed. 19 May 2010 ----------------------------------- SUMMARY DISPOSITION ----------------------------------- Per Curiam: The military judge sentenced appellant to a bad-conduct discharge, confinement for six months, forfeiture of $964 pay per month for six months, and reduction to Private E1. Consistent with the staff judge advocate’s (SJA) erroneous recommendation, the convening authority approved the adjudged sentence, despite a valid pretrial agreement requiring the convening authority to disapprove confinement in excess of 120 days. Appellant noted the convening authority’s error in a footnote. Appellant avers, in that footnote, that the confinement facility used the result of trial to properly establish appellant’s release date from confinement in accordance with the 120 day sentence limitation of the pretrial agreement. Therefore, we find the error did not prejudice appellant. See generally United States v. Stanford, 37 M.J. 388, 391 (C.M.A. 1993) (the court found no prejudice for convening authority’s failure to reference pretrial confinement credit ordered by the military judge in light of a prison official’s uncontradicted affidavit that appellant received the appropriate sentence credit). We are confident the appropriate relief for the improper action is to affirm only so much of the sentence as is permitted under the terms of the pretrial agreement. We affirm the findings of guilty. Reassessing the sentence on the basis of the error noted and the entire record, the court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement for 120 days, forfeiture of $964 pay per month for six months, and reduction to Private E1. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court