DAILEY—ARMY 20100213 

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

KERN, CARLTON, and YOB

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Private E1 TED A. DAILEY**

**United States Army, Appellant**

ARMY 20100213

Headquarters, 3rd Infantry Division and Fort Stewart

Tara Osborn, Military Judge

Lieutenant Colonel Shane E. Bartee, Staff Judge Advocate

For Appellant:  Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Laura R. Kesler, JA; Captain Richard M. Gallagher, JA (on brief).

For Appellee:  Major Amber J. Williams, JA; Major Ellen S. Jennings, JA; Captain Nathan S. Mammen, JA (on brief).

29 July 2011

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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 one charge and four specifications of absent without leave, one charge and two specifications of larceny, and one charge and two specifications of housebreaking, in violation of Articles 86, 121, and 130, Uniform Code of Military Justice [hereinafter UCMJ]; 10 U.S.C. §§ 886, 921, and 930 (2008).  Finding appellant’s guilty plea to the second specification of housebreaking improvident, the military judge entered a finding of guilty, without objection, to unlawful entry in violation of Article 134, UCMJ; 10 U.S.C. § 934 (2008) to this offense.  The judge sentenced appellant to a bad-conduct discharge and confinement for twelve months.  The convening authority, pursuant to a pretrial agreement, approved only so much of the sentence as provided for a bad-conduct discharge and eight months of confinement.  No complaint of error was raised by trial defense counsel prior to initial action.  

Before our court, appellant contends that the military judge committed prejudicial plain error by finding unlawful entry to be a lesser-included offense of housebreaking, and by failing to obtain appellant’s waiver of his Constitutional rights before she used his statements to convict him of that offense.  Under the facts of this case, we agree with appellant. 

**LAW AND ANALYSIS**

After initially finding appellant guilty of both charged specifications of housebreaking, pursuant to his pleas, the military judge properly reopened the providence inquiry regarding these offenses.  Further questioning revealed that appellant unlawfully entered the victim’s Fort Stewart, Georgia quarters on 

27 January 2010, but without the same malevolent larcenous intent that he held on 

1 January 2010 when breaking into the same unoccupied quarters.  The military judge entered a finding of not guilty of housebreaking but guilty of unlawful entry to Specification 2, Charge III.  

As trial counsel prepared to call his first aggravation witness, the military judge renewed her dialogue with appellant.  She defined conduct prejudicial to good order and discipline and service discrediting conduct for appellant.  In turn, appellant explained how unlawfully entering the quarters of his good friend, who was then deployed to Iraq, violated a friendship, a trust, adversely affected discipline in the unit, and discredited the Army in the public’s view.  

In conducting our de novo review of this question of law, we conclude unlawful entry is not a lesser-included offense of housebreaking.  The elements of unlawful entry are not a subset of those encompassing housebreaking.  See *United States Girouard*, 70 M.J. 5 (C.A.A.F. 2011); *United States v. Jones*, 68 M.J. 465 (C.A.A.F. 2010)(citing *Schmuck v. United States*, 489 U.S. 705 (1989).  

We do not concur with Government appellate counsel’s argument that appellant constructively amended the charge sheet through his plea, recitation of the facts underlying his crimes on 27 January 2010, and agreeing to continue with the court-martial proceedings in order to preserve his confinement-limiting pretrial agreement.  Contrary to the military judge’s statement, appellant never pleaded guilty to unlawful entry.  He certainly could have at the onset of this court-martial, but he did not do so.  See, *Jones* 68 M.J. at 473.  Without a proper plea and requisite advice from the military judge regarding his Constitutional rights waivers relating to unlawful entry, appellant’s conviction of Specification 2, Charge III cannot stand.  

**Conclusion**

The findings of guilty of Specification 2 of Charge III are set aside, and that specification is dismissed.  The remaining findings of guilty are affirmed.  The dismissal of Specification 2 of Charge III does not dramatically change the sentencing landscape.  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, the court affirms the sentence as approved by the convening authority.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court 

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