United States v. Grady

HOLDER, Judge: In accordance with his pleas, the appellant was found guilty of eight specifications of unauthorized absence, one specification of resisting apprehension, one specification of destruction of government property and one specification of assault, violations of Articles 86, 95, 108 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 895, 908, 928, respectively. Appellant was sentenced by a special court-martial, military judge alone, to confinement for 4 months, forfeiture of $350.00 pay per month for 4 months, and a bad conduct discharge. The convening authority approved the sentence as adjudged. Appellant has submitted seven assignments of error.1 Appellant’s first assignment of error claims that his pleas to Charge IV and the specification thereunder were not provident in that the providence inquiry failed to establish that appellant offered to do bodily harm to the alleged victim, Operations Specialist First Class (OS1) Putas, USN. We disagree. Appellant admitted during the providence inquiry that OS1 Putas asked appellant for identification, appellant then took a knife from his pocket, a knife with a three-inch blade, held the knife up and told OS1 Putas not to come near him. Appellant stated that he believed OS1 Putas was put in fear. We note that, in accordance with his plea, appellant was found guilty of assault with a knife. The record adequately established the basis for acceptance of appellant’s plea. United States v. Jackson, 23 M.J. 650 (N.M.C.M.R.1986), pet. denied, 24 M.J. 405 (C.M.A.1987). Appellant’s second assignment of error has merit. Appellant’s providence inquiry reveals that he did nothing more than run when the DoD police officers appeared on the scene (Record at 30). There is no evidence that the DoD police officers chased the appellant. The police were not endangered in any way. Thus, on the issue of flight, the case is similar to United States v. Harris, 29 M.J. 169 (C.M.A.1989). See also, United States v. Nocifore, 31 M.J. 769 (A.C.M.R.1990). The finding of guilty of resisting apprehension will be set aside, and that charge will be dismissed. After reviewing the entire record of trial, we are convinced that even in the absence [1047] of Charge II and its specification, the trial judge would have adjudged the same sentence. Therefore, no rehearing on sentencing is required. See United States v. Sales, 22 M.J. 305 (C.M.A.1986). The remaining assignments of error are without merit. We do find that a window of a barracks on a military installation is clearly military property. The record of trial evinces a clear understanding by appellant of all that transpired. Appellant suffered no prejudice due to minor inconsistencies or omissions in the staff judge advocate advice or the convening authority’s action that cannot be corrected in our decretal paragraph. The findings of guilty of Charge II and its specification are set aside and Charge II and its specification are dismissed. The remaining findings of guilty are affirmed. Reassessing the sentence on the basis of the errors noted and the entire record, the court affirms the sentence. Footnotes [1] I. APPELLANT’S PLEAS TO CHARGE IV AND THE SPECIFICATION THEREUNDER WERE NOT PROVIDENT. II. APPELLANT’S PLEAS TO CHARGE II AND THE SPECIFICATION THEREUNDER WERE NOT PROVIDENT. III. APPELLANT’S PLEAS TO CHARGE III AND THE SPECIFICATION THEREUNDER WERE NOT PROVIDENT. IV. THE MILITARY JUDGE ERRED BY CONTINUING TO ACCEPT APPELLANT’S PLEAS OF GUILTY TO THE CHARGES AND SPECIFICATIONS WHEN APPELLANT’S SWORN STATEMENT DURING THE PROVIDENCE INQUIRY RAISED A REASONABLE POSSIBLE DEFENSE OF LACK OF MENTAL RESPONSIBILITY AND THE MILITARY JUDGE FAILED TO CONDUCT ANY INQUIRY INTO THIS POSSIBLE DEFENSE. V. THE CONVENING AUTHORITY FAILED TO HONOR THE TERMS OF THE PRETRIAL AGREEMENT NEGOTIATED IN APPELLANT’S CASE AND FAILED TO CONSIDER CLEMENCY MATTERS. VI. THE LEGAL OFFICER FAILED TO PROPERLY ADVISE THE CONVENING AUTHORITY REGARDING THE PRETRIAL AGREEMENT AND CLEMENCY MATTERS. VII. APPELLANT HAS BEEN DENIED EFFECTIVE POST-TRIAL REPRESENTATION.