## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, MORAN, and GALLAGHER Appellate Military Judges

UNITED STATES, Appellee

v. Specialist ANTHONY M. RABY United States Army, Appellant

ARMY 20110395

Headquarters, U.S. Army Garrison Fort Meade

Denise R. Lin d, Military Judge

Lieutenant Colonel Elizabeth G. Marotta, Staff Judge Advocate

For Appellant: Captain John L. Schriver, JA; Captain Ian M. Guy, JA (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA (on brief).

18 December 2012

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

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Per Curiam:

A military judge, sitting as a general court-martia l, convicted appellant, pursuant to his pleas, of aggravated sexual abuse of a chil d and sodomy of a child who had not attained the age of twelve years, in violat ion of Articles 120 and 125, Uniform Code of Military Ju stice, 10 U.S.C. §§ 920, 925 (2006 & Supp . III 2009) [hereinafter UCMJ]. Contra ry to appellant’s pleas, th e military judge convicted him of rape of a child wh o had not attained the age of twelve years 1 and failure to obey a

1 Subsequent to a nnouncing the fi ndings, the military judg e amended the rape of a child specification by reducing the charged time period to re flect the facts. When restating the amended specific ation, she erroneously charac terized the victim as “a child who had attained the ag e of twelve years.” This was simply a misstatement by the military judge that went un noticed by all the trial participants. In this case, the

clear intent of the mi litary judge, and the u nderstanding of the pa rties, was that the amendment of the specification did not affe ct the finding as to the victim’s age—a

(continued . . .)RABY—ARMY 20110395

2 lawful order, in violation of Articles 12 0 and 92, respectively. Appellant was also convicted, contrary to his plea, of failing to comp ly with a protective order in violation of a state criminal law, assimilate d into federal law purs uant to 18 U.S.C. § 13, in violation of Clau ses 2 and 3 of Article 134, UCMJ. The military judge sentenced appellant to a dishonorable disc harge, confinement fo r thirty-one years, and reduction to the grade of E-1. The convening author ity approved the adjudged

sentence. 2

This case was submitted to us for re view on its merits under Article 66, UCMJ. However, although no t raised, we conclude the staff judge ad vocate (SJA) failed to correctly advise the convening authority concer ning the Article 134, UCMJ,

offense. This erro r necessitates relief.

A convening authority’s actio n implicitly approves the findings as reported by the SJA in her post-trial recommendation (SJAR). United States v. Diaz , 40 M.J. 335, 337 (C.M.A. 1994). See UCMJ art. 60(d); Rule for Courts-Martial 1106(d)(3). In this case, the SJAR, up on which the conveni ng authority relied to approve the findings and senten ce, included a result of trial that erroneously reported appellant was acquitted of Additional Charge II, the Article 13 4, UCMJ, offense mentioned above. “[A]bsent contrary evidence, when a convening authority does not address findings in his action, he approves only the findings of guilty as correctly stated in [the SJAR].” United States v. Henderson , 56 M.J. 911, 912– 13 (Army Ct. Crim. App. 2002). As wa s the case in Henderson , we are faced with a scenario wherein the

SJAR “omits or misstate s a finding of guilty.” Id. Applying Henderson to the present case, we have no jurisdiction to affirm the Article 1 34, UCMJ, offense.

Because we may act “only with respect to the find ings and sentence as approved by the convening authority,” UC MJ art. 66(c), we can “either affirm only those findings of guilty (or portions thereof) that are correctly and unambiguously stated in the SJAR, or return the case to the convening authority for a new SJAR and

action.” Henderson , 56 M.J. at 913. In the interest of judicial econom y, we will set

aside the findi ngs of guilty of the Articl e 134, UCMJ, offense.

(. . . continued)

child who had not attained th e age of twelve years. Accordingly, no corrective

action is warranted. Cf. United States v. Perkins , 56 M.J. 825, 827 (Army Ct. Crim. App. 2001).

2 The convening authority wa ived appellant’s automatic forfeitures for six months, with direction that they be paid to appellant’s spouse.RABY—ARMY 20110395

3 CONCLUSION

We have considered the r ecord of trial and appellan t’s assertions of error

pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), none of which

warrant discussion or relief. The findi ngs of guilty of th e Specification of Additional Charge II and Addi tional Charge II are set asid e. The remaining findings are AFFIRMED. Reassessing the sentence on the basis of the erro r 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 Bake r in his concurri ng opin ion in Moffeit , the approved sentence is AFFIRMED. 3

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

3 In order to reassess, we mu st be confident “that, absent any error, the sentence adjudged would have been of at least a certain severity.” Sales , 22 M.J. at 308. See Moffeit , 63 M.J. at 43 (B aker, J., concurring in the result). In this case, the penalty landscape did not change, as appell ant still faces a maximum punishment of life without the eligib ility for parole for the remainin g offenses. In addition, the aggravating circumstances of appellant’s crimes are unchang ed. Therefore, in light of the remaining charges and their serious nature, we ar e confident th e court would have adjudged a sentence of at least a dishonorable discharg e, confinement for thirty-one years, and reduct ion to the grade of E-1. MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: