UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                          COOK, GALLAGHER, and HAIGHT
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                         Private E1 JAMES L. MALADY
                          United States Army, Appellant

                                   ARMY 20120005

                             III Corps and Fort Hood
                          Patricia Lewis, Military Judge
                  Colonel Stuart W. Risch, Staff Judge Advocate
         Lieutenant Colonel Craig E. Merutka, Acting Staff Judge Advocate


For Appellant: Captain James S. Trieschmann, JA; Captain Matthew M. Jones, JA.

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


                                  29 November 2012

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                               SUMMARY DISPOSITION
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Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of absence without leave in excess of thirty days and wrongful
use of marijuana in violation of Articles 86 and 112a, Uniform Code of Military
Justice, 10 U.S.C. §§ 886 and 912a [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge and to be confined for four months.
The convening authority approved the adjudged sentence and credited appellant with
15 days of confinement credit against the sentence to confinement. This case is
before us for review pursuant to Article 66, UCMJ.

       Defense appellate counsel raises no assignment of error. However, we note
two issues which merit discussion but no relief.
MALADY— ARMY 20120005

                                    DISCUSSION

                            Pretrial Offer and Agreement

       In the Pretrial Offer and Agreement, appellant agreed to waive any motion
under Rule for Courts-Martial [hereinafter R.C.M.] 707. (App. Ex. IV, ¶ 3). We
need not decide whether this provision runs afoul of the prohibition against pretrial
agreement terms depriving an accused of the right to a speedy trial. See R.C.M.
705(c)(1)(B). It is clear from the record appellant had no basis on which to make
any R.C.M. 707 motion. Appellant was arraigned, on the 62nd day following
preferral of charges, well within the 120 day limit established by R.C.M. 707.
Consequently, no viable motion was waived.

                                      Variance

      Appellant pleaded guilty to and was convicted of wrongful use of marijuana
between on or about 25 February 2011 and 25 March 2011, at or near Fort Hood,
Texas. However, during the providence inquiry, appellant stated the charged use
occurred in Arkansas. The location in this specification was not amended
accordingly.

       “A variance between pleadings and proof exists when evidence at trial
establishes the commission of a criminal offense by the accused, but the proof does
not conform strictly with the offense alleged in the charge.” United States v. Allen,
50 M.J. 84, 86 (C.A.A.F. 1999) (citing United States v. Lee, 1 M.J. 15, 16 (C.M.A.
1975)). Such a variance is fatal if the variance is material and substantially
prejudices the appellant. Id. (citing United States v. Hunt, 37 M.J. 344, 347 (C.M.A.
1993)).

       Generally, any prejudice from variance is found by a showing that the
appellant was misled, denied the opportunity to defend against the charge, or is not
protected from another prosecution for the same offense. First, appellant was not
misled or surprised. To the contrary, appellant was the one who informed the
military judge he had used marijuana in Arkansas rather than at or near Fort Hood,
Texas, between 25 February and 25 March 2011. Second, “[m]inor variances, such
as the location of the offense or the date upon which an offense is allegedly
committed, do not necessarily change the nature of the offense and in turn are not
necessarily fatal.” United States v. Teffeau, 58 M.J. 62, 66 (C.A.A.F. 2003).
Accordingly, appellant was afforded full opportunity to defend himself against the
charge. Finally, “protection against double jeopardy can be predicated upon the
evidence in the record of the prior prosecution.” Lee, 1 M.J. at 17. The facts in this
record protect appellant against any second federal prosecution for marijuana use on
the dates in question.




                                          2
MALADY— ARMY 20120005

       While we find appellant was not prejudiced by the difference in the pleadings
and the proof, we stress the need for all participants at trial to pay close heed to the
admissions made by an accused during the providence inquiry to ensure that any
matters seemingly inconsistent with the plea can be resolved at trial and not on
appeal. See also United States v. Lubasky, 68 M.J. 260, 265 (C.A.A.F. 2010) (noting
that “variance” and findings by exceptions and substitutions pursuant to R.C.M. 918
occur at trial, not the appellate level).

                                   CONCLUSION

       On consideration of the entire record 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 Grostefon submission to be without merit. We hold the findings of
guilty and the sentence as approved by the convening authority correct in law and
fact. Accordingly, the findings of guilty and the sentence are AFFIRMED.


                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




                                        MALCOLM H.
                                        MALCOLM     H. SQUIRES,
                                                       SQUIRES, JR.
                                                                JR.
                                        Clerk of Court
                                        Clerk of Court




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