UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ, and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist BRIAN L. KIMBERLING
United States Army, Appellant
ARMY 20111169
U.S. Army Southern European Task Force
Christopher Fredrikson, Military Judge
Lieutenant Colonel Russell N. Parson, Acting Staff Judge Advocate (pretrial)
Colonel Mark Tellitocci, Staff Judge Advocate (post-trial)
For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain Robert N.
Michaels, JA.
For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed.
30 April 2013
---------------------------------
SUMMARY DISPOSITION
---------------------------------
Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of violating a lawful general regulation and aggravated assault,
in violation of Articles 92 and 128, Uniform Code of Military Justice, 10 U.S.C. §§
892, 928 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a
bad-conduct discharge, confinement for eighteen months, forfeiture of all pay and
allowances, and reduction to the grade of E-1. Contrary to the terms of a pretrial
agreement limiting confinement to seven months, the convening authority approved
the sentence as adjudged. Appellant was credited with 129 days of confinement
against his sentence to confinement.
Appellant personally submits matters pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), but otherwise assigns no errors for our review under
Article 66, UCMJ. We find appellant’s Grostefon submissions lack merit. However,
in conducting our review, we find one error necessitating discussion and relief.
KIMBERLING—ARMY 20111169
The convening authority erred by approving a sentence to confinement in
excess of a sentence limitation contained in the pretrial agreement. In this case,
appellant offered to plead guilty to the charged offenses, and in exchange, the
convening authority agreed to a seven-month limitation on confinement. Despite
this agreement, the convening authority approved a sentence including confinement
for eighteen months. A pretrial agreement is a contract between the accused and the
convening authority, and the convening authority is bound by the terms of that
agreement. United States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009). “Whether the
government has complied with the material terms and conditions of an agreement
presents a mixed question of law and fact.” United States v. Lundy, 63 M.J. 299,
301 (C.A.A.F. 2006) (citing Hometown Financial, Inc. v. United States, 409 F.3d
1360, 1369 (Fed. Cir. 2005); Gilbert v. Dep’t of Justice, 334 F.3d 1065, 1071 (Fed.
Cir. 2003)). “[A]ppellant bears the burden of establishing that the term is material
and that the circumstances establish governmental noncompliance.” Smead, 68 M.J.
at 59. In this case, it is evident that the convening authority failed to abide by a
material term of the pretrial agreement by erroneously approving eighteen months of
confinement.
“In the event of noncompliance with a material term, we consider whether the
error is susceptible to remedy in the form of specific performance or in the form of
alternative relief agreeable to the appellant.” Id. Here, we conclude that the
appropriate remedy is to reduce appellant’s confinement such that it coincides with
the bargained-for term contained within his pretrial agreement. See UCMJ art. 66;
United States v. Scott, 4 M.J. 205, 206 (C.M.A. 1978).
CONCLUSION
On consideration of the entire record, including the issues personally raised
by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), we
hold the findings of guilty are correct in law and fact. Therefore, we affirm the
findings of guilty. Based on the reasons outlined above, the court affirms only so
much of the sentence as provides for a bad-conduct discharge, confinement for seven
months, forfeiture of all pay and allowances, and reduction to the grade of E-1. All
rights, privileges, and property, of which appellant has been deprived by virtue of
that portion of his sentence set aside by this decision, are ordered restored. See
UCMJ arts. 58b(c) and 75(a).
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
2