## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA. HERRING, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v.

Private E2 DENNIS BAILON United States Army, Appellant

ARMY 20160240

Headquarters, 7th In fantry Division Sean F. Mangan, Military Judge

Lieutenant Colonel James A. Nelson, Staff Judge Advocate

For Appellant: Major Andres Vazquez, Jr., JA; Captain Joshua B. Fix, JA (on brief); Captain Katherine L. DePaul, JA; Captain Joshua B. Fix, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Anne C. Hsieh, JA; Captain Jonathan S. Reiner, JA (on brief).

10 January 2017

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SUMMARY DISPOSITION

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PENLAND, Judge:

A military judge convicte d appellant, consistent with his pleas, of two specifications of failure to obey his commande r’s order not to leave Joint Base

Lewis-McChord and assault consummated by a battery, 1 in violation of Articles 92 and 128, Uniform Code of Mi litary Justice [hereinafter UCMJ], 10 U.S.C. §§ 892, 928. The military judge sentenced appellant to a bad-conduct discharge, confinement for seven months and one day, forfeiture of all pa y and allowances, and

reduction to the lowest enliste d grade. In accordance with a pretrial agreement, the convening authority limited appellant’s conf inement to six months , and approved the

remainder of the sentence.

1 Appellant pleaded guilty to this offense as a lesser-inc luded offense to the charge

of abusive sexual cont act, Article 120, UCMJ.BAILON — ARMY 20160240

2 We review this case under Article 66, UCMJ. Appellant raises one assignment of error, which warrants brie f discussion but no relief. We have considered appellant’s matters pe rsonally submitted pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982); they merit neither.

Appellant now asserts the military judge determined the adjudged sentence based upon the incorre ct maximum punishment. The mil itary judge indeed erred in determining the maximum sent ence. To the extent ap pellant asserts a causal relationship between th e error and his senten ce, we see none.

During the Care inquiry, 2 the military judge asked fo r the government’s views regarding the maximum puni shment, and trial counse l responded the maximum punishment was a bad-c onduct discharge, eigh teen months confinem ent, forfeiture of all pay and allowances, and reduction to th e lowest enlisted grade. When asked whether he agreed with this assessment, defense counsel said, “Yes, sir.” The military judge then advise d appellant of the maximum punishment, consistent with the views of government and defense counsel.

As both parties now be latedly agree, the maxi mum punishment–which we

determine de novo– is a bad-conduct discha rge, eight months conf inement, forfeiture of all pay and allowances , and reduction to the lowest enlisted grade. 3 The military judge and both parties at tr ial overstated the maximum confinement term by ten months. Appellant does not claim ineffective assistance of counsel. Additionally, his appellate counsel specifically disclaim s any argument that appellant’s guilty pleas were improvident. It is noteworthy that appell ant also makes no post-hoc effort to disturb the protections of his pretrial agreement, which allowed him to avoid an Article 120, UCMJ, conviction.

While the military judge erred in determining th e maximum punishment, our careful review of this record–including the aggravation eviden ce–yields confidence that the error did not materially prej udice appellant’s su bstantial rights. United States v. Baransky , 17 M.J. 54 (C.M.A. 1983).

2 United States v. Care , 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).

3 United States v. Phillips , 74 M.J. 20, 22- 23 (C.A.A.F. 2015); United States v. Amaya , 74 M.J. 264 (C.A.A.F. 2015); MC M, 1984, Change 1 (Exec. Order No. 12,473, 49 F.R. 17152 (13 Ap r. 1984), as amended by Ex ec. Order No. 12,484, 49 F.R. 28825 (13 Jul. 1984)).BAILON — ARMY 20160240

3 CONCLUSION

The finding of guilty and th e sentence are AFFIRMED.

Senior Judge CAMPANELLA an d Judge HERRING concur.

FOR THE COURT:

JOHN P. TAITT Deputy Clerk of Court

JOHN P. TAITT Deputy Clerk of Court FOR THE COURT: