UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                             YOB, KRAUSS, and BURTON
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist JOSEPH A. SMITH
                          United States Army, Appellant

                                  ARMY 20120329

                Headquarters, XVIII Airborne Corps and Fort Bragg
                Tara A. Osborn and Steven H. Levin, Military Judges
                   Colonel Paul S. Wilson, Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA; Captain Kevin F. Sweeney, JA.

For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed.


                                    29 March 2013
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------
Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of attempted sale of military property, conspiracy, dereliction
of duty, and larceny in violation of Articles 80, 81, 92, and 121 Uniform Code of
Military Justice, 10 U.S.C. §§ 880, 881, 892, 921 (2006) [hereinafter UCMJ]. The
military judge sentenced appellant to a bad-conduct discharge, confinement for
eleven months, forfeiture of $994.00 per month for eleven months, and reduction to
the grade of E-1. Pursuant to a pretrial agreement, the convening authority approved
only so much of the sentence extending to four months confinement and the
remainder of adjudged sentence.

       Appellant does not raise any errors for our review under Article 66, UCMJ.
However, we are compelled to address an issue relating to the parties’ understanding
of the pretrial agreement. Because both the government and appellant understood
the pretrial agreement to limit forfeitures to a period of four months, we shall
reassess the sentence in accordance with the parties’ mutual understanding.
SMITH—ARMY 20120329

       In exchange for appellant’s offer to plead guilty, the convening authority
agreed to disapprove any confinement in excess of four months. According to the
agreement, the convening authority could approve any other lawful adjudged
punishment. After reviewing the quantum portion of the pretrial agreement, the
military judge stated that he understood the pretrial agreement to mean the
convening authority could approve “confinement for 4 months, the reduction to the
grade of E-1, the forfeiture of $994.00 per month for 4 months, and a bad-conduct
discharge.” All parties, including trial counsel, defense counsel, and appellant
himself, agreed on the record with the military judge’s interpretation of the pretrial
agreement.

       Despite the parties’ agreement regarding forfeitures, the staff judge advocate
recommended that the convening authority approve forfeitures of $994.00 per month
for eleven months. In his Rule for Courts-Martial 1105 and 1106 matters, appellant
asserted that the forfeitures should be limited to a period of four months. The staff
judge advocate disagreed and the convening authority in turn approved forfeitures
for a period of eleven months.

       It is paramount that the record reflects a “clear, shared understanding of the
terms of any pretrial agreement between an accused and the convening authority.”
United States v. Grisham, 66 M.J. 501, 505 (Army Ct. Crim. App. 2008) (quoting
United States v. Williams, 60 M.J. 360, 362 (C.A.A.F. 2004)). There is little
question that the parties at trial understood the pretrial agreement to limit forfeitures
to a period of four months. For that reason, we reassess the sentence to reflect the
parties’ mutual understanding of the pretrial agreement.

                                    CONCLUSION

       The findings of guilty are AFFIRMED. Reassessing the sentence on the basis
of the error noted, the entire record, and in accordance with the principles of United
States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40
(C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring
opinion in Moffeit, the court affirms only so much of the sentence as provides for a
bad-conduct discharge, confinement for four months, forfeiture of $994.00 per
month for four months, and reduction to the grade of E-1. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of his
sentence set aside by this decision, are ordered restored. See UCMJ arts. 58(c) and
75(a).

                                         FOR THE COURT:



                                         KENNETH J. TOZZI
                                         COL, JAJ. TOZZI
                                        KENNETH
                                         Acting
                                        COL, JA Clerk of Court
                                        Acting Clerk of Court
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