United States v. Pinero

HARRIS, Judge: In accordance with mixed pleas, Appellant was convicted by a military judge sitting as a special court-martial of unauthorized absence terminated by apprehension, multiple uses of methamphetamine, and multiple uses of marijuana, in violation of Articles 86 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 912a. He was sentenced to a bad-conduct discharge, reduction to pay grade E-l, and confinement for 72 days. The convening authority approved the findings and sentence. A pretrial agreement had no effect on the sentence. We have carefully reviewed the record of trial, Appellant’s summary assignment of error, and the Government’s response. We conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of Appellant was committed. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c). Erroneous Acceptance of Guilty Plea In his sole assignment of error, Appellant asserts that the military judge erred in accepting his plea to Charge I and its specification. Appellant avers that this court should affirm only so much of the findings as to an unauthorized absence for a period of less than 30 days and reassess the sentence. Unauthorized absence terminated by apprehension requires an individual to absent himself or herself from his or her unit, organization, or place of duty at which he or she is required to be, that the absence was without proper authority from anyone competent to give him or her leave, that the absence was for a certain period of time, and that the absence was terminated by apprehension. Manual foe Courts-Martial, United States (2000 ed.), Part IV, ¶ 10(b)(3). A military judge may not accept a guilty plea to an offense without inquiring into its factual basis. Art. 45(a), UCMJ, 10 U.S.C. § 845(a); United States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253, 1969 WL 6059 (1969). Before accepting a guilty plea, the military judge must explain the elements of the offense and ensure that a factual basis for the plea exists. United States v. Faircloth, 45 M.J. 172, 174 (1996); United States v. Davenport, 9 M.J. 364, 367 (C.M.A.1980). “Mere conclusions of law recited by an accused are insufficient to provide a factual basis for a guilty plea.” United States v. Outhier, 45 M.J. 326, 331 (1996)(citing United States v. Terry, 21 C.M.A. 442, 45 C.M.R. 216, 1972 WL 14158 (1972)). The accused “must be convinced of, and able to describe all the facts necessary to establish guilt.” Rule for Courts-Martial 910(e), Manual for Courts-Martial, United States (2000 ed.), Discussion. Acceptance of a guilty plea requires the accused to substantiate the facts that objectively support his plea. United States v. Schwabauer, 37 M.J. 338, 341 (C.M.A.1993); R.C.M. 910(e). The military judge must resolve inconsistencies and apparent defenses, or the guilty plea must be rejected. Outhier, 45 M.J. at 331. The standard of review to determine whether a plea is provident is whether the record reveals a substantial basis in law and fact for questioning the plea. United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991). Such rejection must overcome the generally applied waiver of the factual issue of guilt inherent in voluntary pleas of guilty. The only exception to the general rule of waiver arises when an error materially prejudicial to [503] the substantial rights of the appellant occurs. Art. 59(a), UCMJ; R.C.M. 910(j). A military appellate court should “not overturn a guilty plea unless there is a ‘substantial basis’ for doing so.” United States v. Vega, 39 M.J. 79, 80-81 (C.M.A.1994)(quoting Prater, 32 M.J. at 436); see Art. 45(a), UCMJ. Appellant waived all possible factual issues concerning his guilt of unauthorized absence terminated by apprehension when he voluntarily pleaded guilty. United States v. Wilson, 44 M.J. 223, 225 (1996); R.C.M. 910(j). Appellant contends his plea to unauthorized absence [UA] from 23 October 2000 until he was apprehended on 15 December 2000 is improvident because he was under the control of military authority sometime in November 2000. Appellant’s Brief of 30 Mar 2002 at 3-4. The military judge advised Appellant of the elements and definitions of his offense and tailored those elements to the facts and circumstances of his case. Appellant acknowledged he understood these elements and definitions, and stated they correctly described what he did. On 23 October 2000, Appellant stopped going to work. During his UA, Appellant stayed at his residence. Sometime in November, a Second Class Petty Officer from Appellant’s command came to Appellant’s home and instructed him to go to the Makalapa Clinic for a command-directed fitness-for-duty screening. This Petty Officer arrived at Appellant’s home at 0900 and was acting on behalf of the command. Appellant said the Petty Officer knew he was in a UA status; however, Appellant was not voluntarily surrendering to military control. The Petty Officer told Appellant that the Captain [Commanding Officer] had ordered a fitness-for-duty screening, and Appellant complied with the order. Appellant changed into his uniform and the Petty Officer brought Appellant to the clinic. They spent about 5 hours at the clinic, and then the Petty Officer returned Appellant to his residence. The Petty Officer then ordered Appellant to return to work the next day, and Appellant failed to do so. Appellant continued to remain UA until 15 December 2000, when agents from the Naval Criminal Investigative Service [NCIS] apprehended him. The military judge found that for that 5-hour period in November, Appellant “was subject to military control and authority.” Because the military judge did not know and could not ascertain from either Appellant or the Government the exact date Appellant was subjected to military control, he found Appellant guilty of the entire UA as charged. However, he stated that he would consider, as a matter in extenuation, that during that period of unauthorized absence there was a short break. Appellant’s trial defense counsel agreed with the military judge’s resolution of the issue. In this case, Appellant was on notice that the charge of unauthorized absence encompassed the entire period alleged. Appellant can hardly claim to have been misled if, on the basis of his own plea or evidence, it appears that he came back under military control for a brief time during that period. See United States v. Francis, 15 M.J. 424 (C.M.A.1983). As the military judge noted, at 0900 Appellant was in a UA status for the day in question. He shortly thereafter continued his UA. Further, we believe our holding is consistent with our Superior Court’s rationale in Francis. Appellant’s case further expands the rationale of the Francis case in that he did not contest his guilt to the entire period of time alleged. Unfairness to Appellant would result “only if findings of guilty of the two lesser absences authorize a greater maximum punishment than that would be permitted only of the single longer absence for which he was brought to trial.” Francis, 15 M.J. at 429. Although the resolution of the inconsistency and potential defense of early termination in this case was unusual, we hold that the military judge did not err in accepting Appellant’s plea of guilty to a single period of UA. We conclude the military judge properly accepted the plea for the following reasons. First, the facts objectively supported Appellant’s plea of guilty of UA from 23 October 2000 to 15 December 2000. The indefinite approximate 5-hour period at the Navy medical clinic was, at most, a de minimis interruption of the alleged UA. Sec [504] ond, Appellant and Ms trial defense counsel affirmatively waived any defense of early termination. Although he complied with the Second Class Petty Officer for the limited purpose of the fitness-for-duty medical examination, Appellant stated on the record that it was not his intention to voluntarily terminate his UA and submit to military control. Third, even assuming error, there was no material prejudice to the substantial rights of Appellant. The alternative was to find Appellant guilty of two periods of UA witMn the same charged period. Consequently, the military judge’s acceptance of the plea had no impact on the maximum punishment that Appellant faced at Ms court-martial. For these reasons, we believe the result in this case is not inconsistent with the rationale of our Superior Court’s holding in Francis as Appellant was not misled as to the charge, and no unfairness resulted as the variance did not increase his punitive exposure. Id. The military judge considered finding Appellant guilty of two separate UA offenses. However, if the military judge had broken the UA into two separate offenses, then Appellant could have potentially suffered prejudice. Essentially, if the military judge convicted Appellant of two separate UA offenses, he would have found two UA offenses terminated by apprehension. He would have had to arbitrarily pick a date for the termination of one UA and the start of the second UA. This would have unfairly aggravated the offense beyond what Appellant had pled to and potentially subject him to a more severe sentence. Appellant’s answers during the providence inquiry supported the military judge’s finding of a continual absence from Ms command, with only a brief 5-hour window where he was subjected to military control. The military judge properly exercised his discretion. After having entered specific findings in compliance with United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247, 1969 WL 6059 (1969), concerning Appellant’s pleas, he convicted him of the single UA and considered the brief period of military control as mitigation. Further, Appellant waived his right to have the military judge enter specific Francis findings on the record concerning the UA charge when he did not request them. R.C.M. 910(j) and 918(b); see generally Francis, 15 M. J. at 428. Appellant has failed to show a substantial basis in law and fact in the record to question his guilty plea. Therefore, Appellant’s request for relief is denied. Conclusion Accordingly, we affirm the findings of guilty and the sentence, as approved on review below. Chief Judge LEO, Senior Judge OLIVER, Semor Judge FINNIE, and Judge CARVER, concur.