UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          LIND, KRAUSS and BORGERDING
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                      Sergeant CHRISTOPHER N. SHELL
                         United States Army, Appellant

                                  ARMY 20120264

                     Headquarters, United States Army Alaska
                           Kwasi Hawks, Military Judge
                   Colonel Tyler J. Harder, Staff Judge Advocate


For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Major Richard E. Gorini,
JA; Captain Matthew M. Jones, JA (on brief).

For Appellee: Major Catherine L. Brantley, JA; Captain Daniel M. Goldberg, JA (on
brief).


                                   7 February 2014

                              ---------------------------------
                               SUMMARY DISPOSITION
                              ---------------------------------

BORGERDING, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of conspiracy to commit larceny of
government property of a value greater than $500; one specification of conspiracy to
sell government property of a value greater than $500; one specification of selling
military property of a value greater than $500; one specification of larceny of
military property of a value greater than $500; and one specification of unlawful
entry in violation of Articles 81, 108, 121, and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 881, 908, 921, and 934 (2006) [hereinafter UCMJ]. The
military judge sentenced appellant to confinement for nineteen months; hard labor
without confinement for ninety days; forfeiture of $1,145.00 pay per month for a
period of fifteen months; and reduction to the grade of E-1. The convening authority
approved only so much of the sentence as provided for confinement for 15 months;
forfeiture of $1,145.00 pay per month for a period of fifteen months; and reduction
SHELL — ARMY 20120264

to the grade of E-1. The convening authority also credited appellant with forty-eight
days confinement against the sentence to confinement.

       This case is before the court for review under Article 66, UCMJ. Appellant
raises one assignment of error, which merits neither discussion nor relief. We have
also considered the matters personally raised by appellant pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they are without merit.

       However, we have identified two issues which require discussion and relief.
Appellant was charged with stealing and selling military property of a value greater
than $500, specifically, “196 pairs of snow shoes.” Appellant was also charged with
conspiring to steal and sell government property of a value greater than $500,
specifically, the same “196 pairs of snow shoes.” Unfortunately, the military judge
and both parties at trial proceeded through the plea inquiry for the conspiracy
specifications as if appellant were charged with conspiracy to steal and sell military
property rather than government property. See United States v. Roach, 65 M.J. 866,
870 (Army Ct. Crim. App. 2007) (“The terms are not interchangeable. All
government property is not military property; however, all military property is
government property.”).

       Accordingly, for Specification 1 of Charge I, appellant faced a charge of
conspiracy to steal non-military government property of a value in excess of $500,
which carries a maximum punishment of, inter alia, 5 years confinement, as opposed
to a charge including the sentence escalator of “military property,” allowing for a
maximum punishment of, inter alia, 10 years confinement. Manual for Courts-
Martial, United States (2008 ed.) [hereinafter MCM], pt. IV, ¶¶ 5.e, 46.e(1)(c)-(d). 1
Despite the understanding of the parties, we decline to apply the enhanced maximum
punishment in this case and will reassess the sentence in our decretal paragraph. See
United States v. Smith, 49 M.J. 269, 271 (C.A.A.F. 1998) (holding that “adding the
sentence escalator that doubled the punishment was a ‘substantial matter’ within the
meaning of [Rule for Courts-Martial] 603(a)” and was therefore not a “minor”
amendment).

       More significantly, in Specification 2 of Charge I, appellant is ostensibly only
charged with conspiracy to commit an offense under the UCMJ, to wit: selling non-
military government property in violation of Article 134, UCMJ. See generally
United States v. Thompson, 30 M.J. 905, 906 n.1 (A.C.M.R. 1990) (citing United
States v Rivers, 3 C.M.R. 564 (A.F.B.R. 1952)) (recognizing that the sale of non-

1
 All parties agreed the maximum sentence to confinement appellant faced was
40 years and 6 months, which indicated they considered the maximum sentence to
confinement for this specification to be 10 years.




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SHELL — ARMY 20120264

military government property is an offense under Article 134, UCMJ) . See also
United States v. Benitez, 65 M.J. 827, 828-29 (A.F. Ct. Crim. App. 2007), rev.
denied, 66 M.J. 383 (C.A.A.F. 2008). This is an entirely different charge from
conspiracy to sell military property in violation of Article 108, UCMJ. MCM, pt.
IV, ¶ 32.a.

       We find that under the unique circumstances in this case, the military judge
abused his discretion in accepting appel lant’s guilty plea to this specification.
United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). While it is clear
from the record of trial that all parties believed appellant was pleading guilty to
conspiracy to sell military property in violation of Article 108, UCMJ, 2 that is not
the offense with which appellant was expressly charged. The specification alleged
appellant conspired to sell government property, not military property. Because this
discrepancy was in no way discussed or raised on the record, we find this to be an
“irregular pleading” and that the military judge failed to resolve the matter in a
manner sufficient to permit us affirm a finding of gui lt to this specification. UCMJ
art. 45(a), 10 U.S.C. § 845 (2006); see generally United States v. Jordan, 57 M.J.
236 (C.A.A.F. 2002). 3 Thus, we find a substantial basis in law and fact to question
the plea. Inabinette, 66 M.J. at 322 (citing United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991)). Accordingly, we will set aside appellant’s conviction for
conspiracy to sell government property in our decretal paragraph. 4

      Finally, we find that under the circumstances of this case, misapprehension of
the maximum punishment did not affect appellant’s plea s of guilty. See United

2
  In fact, during discussion of the “agreement” el ement of Article 81, UCMJ, for
Specification 2 of Charge I (conspiracy to sell government property), the military
judge referred appellant to the four elements of Article 108, UCMJ, that the judge
had previously listed for appellant.
3
  As this court noted in Roach: “This case highlights the difficulties caused by
imprecise use of the term ‘government property’ in charging documents when the
term ‘military property’ should have been used instead.” 65 M.J. at 869 -70.
4
  Even were we to affirm Specification 2 of Charge I, we would find that
Specifications 1 and 2 of Charge I should be consolidated into a single specification
alleging one conspiracy to commit larceny of government property and selling
government property. “An agreement to commit several offenses is ordinarily but a
single conspiracy.” MCM, pt. IV ¶ 5.c(3). See also United States v. Pereira,
53 M.J. 183, 184 (C.A.A.F. 2000) (citing Braverman v. United States, 317 U.S. 49
(1942)). It is apparent from the record of trial tha t there was only one agreement
between appellant and his co-conspirator to both steal the government property and
to sell the government property.




                                          3
SHELL — ARMY 20120264

States v. Poole, 26 M.J. 272, 273-74 (C.M.A. 1988); United States v. Dawkins,
51 M.J. 601, 603-05 (Army Ct. Crim. App. 1999); United States v. Walls, 3 M.J. 882,
885 (A.C.M.R. 1977) .
                                   CONCLUSION

       The finding of guilty of Specification 2 of Charge I is set aside and that
specification is dismissed. The remaining findings of guilty are AFFIRMED.

        Reassessing the sentence on the basis of the errors noted, the entire record,
and applying the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986) and the factors set forth in United States v. Winckelmann, 73 M.J. 11, 15-16
(C.A.A.F. 2013), we are confident the military judge would have adjudged the same
sentence absent the errors noted. We also conclude, pursuan t to Article 66, UCMJ,
that such a sentence is appropriate for the remaining guilty findings of larceny and
sale of military property and conspiracy to commit larceny of government property.

       In evaluating the Winckelmann factors, we find that the gravamen of the
offenses has not changed. 73 M.J. at 1 6. As noted above, appellant pleaded guilty
to one conspiracy to steal government property and to actually stealing and selling
the military property. Our setting aside of one specification of conspiracy changes
nothing about the aggravation evidence admissible before the military judge for
sentencing purposes. Id. Appellant was also sentenced by a judge alone and
appellant’s adjudged sentence was still only a small fraction of the maximum
sentence. Id. Finally, this court reviews the records of a substantial number of
courts-martial involving the larceny and sale of military property and we have
extensive experience with the level of sentences imposed for such offenses under
various circumstances. Id.

       The sentence is AFFIRMED. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the finding set aside by this
decision, are ordered restored.

      Senior Judge LIND and Judge KRAUSS concur.


                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




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