UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, CAMPANELLA, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 BRANDON M. SIZEMORE
United States Army, Appellant
ARMY 20111116
Headquarters, Fort Drum
John V. Imhof, Military Judge (arraignment)
Troy Smith, Military Judge (trial)
Lieutenant Colonel Robert L. Manley, III, Staff Judge Advocate
For Appellant: Major Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA; Captain Steve T. Nam, JA (on brief).
17 September 2013
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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 two specifications of wrongful use of a controlled substance
and one specification of drunk and disorderly conduct, in violation of Articles 112a
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 112a, 934 (2006)
[hereinafter UCMJ]. Contrary to his pleas, the military judge convicted appellant of
two specifications of absence without leave in violation of Article 86, UCMJ, 10
U.S.C. § 886. The convening authority approved the adjudged sentence of a bad-
conduct discharge and confinement for 170 days. The convening authority awarded
appellant 129 days of confinement credit.
The case is now before this court for review under Article 66, UCMJ.
Appellate defense counsel raises one assignment of error to this court and appellant
personally raises matters pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). The one assignment of error merits discussion but no relief. Those
matters personally raised by appellant are without merit.
SIZEMORE—ARMY 20111116
In the assignment of error, appellant claims it was an abuse of discretion for
the military judge to reject his guilty plea to the unauthorized absences based upon
his assertion of an inapplicable and unrecognized defense of necessity. Assuming
without deciding that the military judge should not have found appellant’s guilty
pleas to the unauthorized absences improvident, there is no material prejudice to
appellant’s substantial rights. See UCMJ art. 59(a). In this case, there was no
pretrial agreement which provided the benefit of a sentence cap . Therefore,
appellant did not forgo any benefit and he faced the same maximum punishment
available with his attempted guilty plea. Additionally, appellant’s attempt to plea,
his acceptance of responsibility, and his forthrightness were all matters in mitigation
before the military judge for sentencing. See United States v. Holsey, 72 M.J. 93
(C.A.A.F. 2013) (summ. disp.).
CONCLUSION
On consideration of the entire record, submissions of the parties, and those
matters personally raised by appellant pursuant to Grostefon, we hold the findings of
guilty and the sentence as approved by the convening authority are correct in law
and fact.
Accordingly, the findings of guilty and the sentence are AFFIRMED.
FOR
FORTHE
THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES JR.
Clerk of Court
Clerk of Court
2