UNITED STATES, Appellee
Franklin M. BARTON, Hospitalman
Crim. App. No. 200100732
United State Court of Appeals for the Armed Forces
BAKER, J., delivered the opinion of the Court, in which CRAWFORD, C.J., GIERKE, and EFFRON, JJ., joined. ERDMANN, J., filed a dissenting opinion.
For Appellant: Lieutenant Rebecca S. Snyder, JAGC, USNR (argued).
For Appellee: Lieutenant Christopher J. Hajec, JAGC, USNR (argued); Commander Robert P. Taishoff, JAGC, USN, and Lieutenant Lori McCurdy, JAGC, USNR (on brief); Colonel Rose M. Favors, USMC.
Military Judge: E. B. Stone
This opinion is subject to editorial correction before final publication.
Judge BAKER delivered the opinion of the Court.
This Court granted review of the following issue:
WHETHER THE LOWER COURT ERRED IN FINDING APPELLANT’S PLEA OF GUILTY TO SPECIFICATION 2 OF CHARGE I PROVIDENT WHERE THE MILITARY JUDGE FAILED TO ELICIT A FACTUAL BASIS FROM THE ACCUSED THAT THE OBJECT OF THE CONSPIRACY WAS LARCENY OF MERCHANDISE OF A VALUE OF MORE THAN $100 (AS OPPOSED TO LARCENY OF MERCHANDISE OF SOME VALUE).
The stipulated facts pertinent to the granted
issue reveal that Appellant and several other enlisted men engaged in a series
of break-ins at Kadena Air Force Base and
These events gave rise to Charge I, which
contained three specifications of conspiracy. Each of the three
specifications alleged that the object of the conspiracy was larceny of goods
with a value in excess $100. Prior to explaining each of the offenses,
the judge requested that Appellant keep the charge sheet in front of him so
Appellant could “follow along on your copy of the charge sheet as I list the
elements of the offenses for you.” During the Care inquiry of
Charge I, Specification 1, the judge defined and
explained the four elements of larceny as they pertained to Appellant’s
specification, including the required dollar amount. See
Numerous specifications on this charge sheet would normally require me to advise you again and again of the crime—the elements of the crime of larceny and the definitions associated with that crime. In the interest of time, we could dispense with me reading that to you over and over again if you can assure me that you understand the elements of the crime of larceny and the definitions that I have given you. Do you understand all of those elements for sure and those definitions?
At the completion of the judge’s question, Appellant once again responded, “Yes, sir.” The judge also advised Appellant that if he got confused about any of the elements or definitions he should stop the judge.
The military judge
asked Appellant if he would like to have the elements of larceny restated prior
to his inquiry with respect to Specification 2, which concerned the alleged
conspiracy to commit larceny of goods with a value in excess of $100 from Powerzone on
that his plea to Specification 2 of Charge 1 lacks a factual basis
substantiating each element of the offense. In particular, Appellant
argues that nowhere in the Care inquiry did he admit to conspiring to
steal property of a value more than $100 on
The Government responds that the record as a whole establishes each element of the offense. Further, there is nothing in the record that suggests Appellant’s plea to this offense was not knowing, voluntary, or complete. Appellant understood the value of the merchandise in question and admitted to this element of the offense. Thus, the purpose of Care and its progeny are satisfied.
“[A] guilty plea
is an admission of all the elements of a formal criminal charge[.]”
the adequacy of the plea, this Court considers the entire record to determine
whether the dictates of Article 45, UCMJ, 10 U.S.C. § 845 (2000), Rule for
Courts-Martial 910, and Care and its progeny have been met.
In the specification at issue, Appellant was charged with conspiracy to commit larceny of property with value more than $100. The specific elements of larceny are specified in the Manual for Courts-Martial, United States (2002 ed.) [hereinafter MCM], Part IV, para. 46.b.(1):
(a) That the accused wrongfully
took, obtained, or withheld certain property from the possession of the owner
or of any other person;
(b) That the property belonged to a
(c) That the property was of a
certain value, or of some value; and
(d) That the taking, obtaining, or withholding by the accused was with the intent permanently to deprive or defraud another person of the use and benefit of the property or permanently to appropriate the property for the use of the accused of for any person other than the owner.
Article 121 provides for gradations in the maximum sentence depending on the value and type of the property in question.*
Appellant was charged with three specifications of larceny and conspiracy to commit larceny. “In the interest of time,” the judge elected not to repeat the elements for each offense during his Care inquiry, but rather established the relationship of fact to law by cross-referencing his predicate statement of elements. As a result, at no point during the Care inquiry regarding Specification 2 did Appellant admit in declaratory fashion that he intended to steal more than $100 in merchandise. Nor did the stipulation of fact specify the value in question. Rather, any such admission must be found in Appellant’s acknowledgement that he understood the elements of Specification 2, which included a value of more than $100, and that his conduct fit the elements of larceny.
Although we may have doubts that a similar methodology of cross-reference will work generally, it did not amount to error in this case. Reviewing the Care inquiry in whole, we are satisfied that Appellant understood the elements of conspiracy to commit larceny, understood that the elements included a property valuation of over $100, and affirmatively admitted to the military judge that his actions satisfied this element of the offense. First, when the judge listed the elements at the outset, Appellant told the judge that he understood the elements of larceny, including the $100 value requirement. Moreover, the judge did not take “yes” for an answer, but took care to test the answer and asked Appellant whether he in fact understood the elements and understood that he could ask for them to be repeated at any time. Further, the judge required Appellant to follow along during the Care inquiry using his charge sheet. Because Specification 2 contained the phrase “of a value more than $100.00,” and the judge informed Appellant of this element, it is reasonable to conclude that Appellant was aware of the elements to which he was pleading.
In reaching this conclusion, we are cognizant that
we are considering element (c), property of a value more than $100. See MCM, Part IV, para.
46.b.(1)(c). This is not a complex legal
element. An understanding of this element does not require an intricate
application of law to fact. Moreover, Appellant’s admission to this
element involved more than simply his agreement with a legal conclusion, as the
element itself contains a specific factual threshold. Therefore,
Appellant’s admission to this element was an admission to law and fact.
Thus, this case is distinguishable from
We cannot lose sight that this is a guilty plea
case. As this Court indicated in
At the same time, we cannot lose sight that in a guilty plea case the Care inquiry is a substitute for a contested trial. 18 C.M.A. 535, 40 C.M.R. 247. By pleading guilty, an accused is relinquishing significant constitutional rights. He also spares the victim and the government the costs and consequences of a trial. As a result, Appellant’s desire to plead guilty should not obscure the necessity of establishing each element to each offense; speed and economy must cede to care.
For the reasons stated above, we are satisfied that each element of Specification 2 of Charge 1 was established. Therefore, there is no substantial basis in law and fact to question Appellant’s guilty plea to Specification 2.
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.
* At the time of trial, Article 121
allowed increased punishment for the larceny of property in excess of
$100. Manual for Courts-Martial,
ERDMANN, J. dissenting:
I respectfully dissent. In my view, there is an inadequate factual basis to support Appellant’s plea of guilty to conspiracy to commit larceny of merchandise of a value of more than $100. As I believe that there is an adequate factual basis to support a plea to conspiracy to commit larceny of merchandise of some value, I would affirm the guilty plea to that extent. I would further find that the error was harmless with respect to the sentence and affirm the sentence.
The charges and specifications relating to conspiracy and larceny include:1 conspiracy to commit larceny and larceny of merchandise of a value of more than $100 from the Kadena Tennis Pro Shop on May 27 and 28, 2000; conspiracy to commit larceny of merchandise with a value of over $100 in regard to an attempted larceny from the Powerzone on June 21, 2000; and conspiracy to commit larceny and larceny of merchandise with a value over $100 from the Powerzone on June 22.
The specification that is the subject of this appeal is the conspiracy to commit larceny from the Powerzone on June 21. Although Appellant and his co-conspirators were successful on
date in entering the building in which the Powerzone
was located, they were unable to gain entry to the Powerzone
itself. Therefore, unlike the conspiracy charges relating to the larceny
from the Kadena Tennis Pro Shop and the June 22
larceny from the Powerzone, there was no successful
larceny of the Powerzone on
Perhaps because there was no successful completion of this conspiracy to commit larceny, there was no exchange between the military judge and Appellant concerning the value of merchandise that he and his co-conspirators intended to steal from the Powerzone on June 21. Indeed the majority recognizes that “at no point during Appellant’s providence inquiry regarding Specification 2 did Appellant admit in declaratory fashion that he intended to steal more than $100 in merchandise. Nor did the stipulation of fact specify the value in question.” ____ M.J. at (8).
In order to find a factual basis that Appellant intended to steal merchandise of a value of more than $100, the majority notes: “[A]ny such admission must be found in Appellant’s acknowledgement that he understood the elements of Specification 2, which included a value of more than $100[.]” __ M.J. at (9).
In United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002), this Court set forth a comprehensive overview of the legal requirements in a providence inquiry:
To guard against improvident
pleas under Article 45, RCM 910(e), Manual, supra, provides: “The
military judge shall not accept a plea of guilty without making such inquiry of
the accused as shall satisfy the military judge that there is a factual basis
for the plea.” In order to establish an adequate factual predicate for a
guilty plea, the military judge must elicit “factual circumstances as revealed
by the accused himself [that] objectively support that plea[.]”
review, this Court will not overturn a guilty plea unless there is a
substantial basis in law and fact for questioning the providence of the
Looking at the entire record in this case, there is no discussion with Appellant as to whether he intended to steal more than $100 in merchandise from the Powerzone on June 21. There is no reference to the value of this merchandise in the stipulated facts. The only basis that can be found is the following statement of the military judge, after he listed the elements of larceny in regard to Charge 1, Specification 1:2
Okay, Numerous specifications on this charge sheet would normally require me to advise you again and again of the crime -- - the elements and the definitions associated with that crime. In the interest of time, we could dispense with me reading that to you over and over again if you can assure me that you understand the elements of the crime of larceny and the definitions that I have given you.
Appellant responded, “Yes, Sir.” to the military judge’s question as to whether he understood the elements and definitions. The mere recitation of the elements of a crime, however, and an accused’s rote response is simply not sufficient to meet the requirements of Article 45, Uniform Code of Military Justice, 10 U.S.C. § 845 (2000), United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969) and its progeny, or Rule for Courts-Martial 910 [hereinafter R.C.M.]. In recognition of this requirement, the military judge revisited Charge I, Specification 1 and specifically elicited Appellant’s response to each element, including that the merchandise had a value of more than $100. The military judge failed to conduct a similar inquiry for Specification 2.
Because of the
requirement for notice pleading in military practice, the specifications of charged
offenses must contain factual allegations. See R.C.M. 307(c)(3). In turn, a military judge recites these factual
allegations within the elements of offenses during a guilty plea inquiry.
I am not aware of a post Care case that found an adequate factual basis
for a guilty plea solely from an accused’s
acknowledgement of the elements of an offense. “[T]he military judge must
elicit ‘factual circumstances as revealed by the accused himself’[.]”
Appellant’s specific intent to steal merchandise of a value of more than $100
related directly to the maximum punishment. At the time of Appellant’s
trial, the maximum sentence for larceny of property of a value of more than
$100 included five years confinement, whereas larceny of property of a value of
$100 or less included confinement for only six months. See Manual
This providence inquiry fails to meet the requirements of Article 45, Care and its progeny or R.C.M. 910. There is simply no factual predicate based upon questioning of the accused, the stipulation, or other facts in the record that establishes Appellant intended to steal property of a value over $100. The omission here is substantial.
I would affirm only so much of the finding of guilty of Specification 2 of Charge I as provides that Appellant conspired to commit larceny of merchandise of some value. However, as I am convinced that Appellant suffered no substantial prejudice with respect to sentencing, I would affirm the sentence.
1 Appellant was charged with three specifications of conspiracy to commit larceny; two specifications of violating a lawful order (consuming alcohol under the age of 21); three specifications of larceny; and four specifications of housebreaking.
3 A common sense review would lead one to the conclusion that Appellant was unlikely to conspire to steal less than $100 from the Powerzone – a conclusion that is supported by the fact that when Appellant was ultimately successful in breaking into the Powerzone, he and his co-conspirators stole approximately $10,000 in merchandise. Common sense, however useful as it is in approaching a variety of legal issues, is not a substitute for the requirement that the record must contain the factual basis for a guilty plea.