UNITED STATES, Appellee
Jaime J. PINERO, Cryptologic Technician Administrative Second Class
Crim. App. No. 200101373
BAKER, J., delivered the opinion of the Court, in which CRAWFORD, C.J., GIERKE, EFFRON, and ERDMANN, JJ., joined.
For Appellant: Captain James D. Valentine, USMC (argued).
For Appellee: Lieutenant Frank L. Gatto, JAGC, USNR (argued); Commander R. P. Taishoff, JAGC, USN (on brief); Colonel Rose M. Favors, USMC, and Captain Glen R. Hines, USMC.
Military Judge: R. W. Redcliff
This opinion is subject to editorial correction before publication.
Judge BAKER delivered the opinion of the Court.
In accordance with his pleas, Appellant was convicted by a
military judge at a special court-martial of unauthorized absence
apprehension and five specifications of wrongful use of a controlled
in violation of Articles 86 and 112a, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 886 and 912a (2000).
The adjudged and approved sentence provided
for a bad-conduct discharge, confinement for 72 days, and reduction to
E-1. The United States Navy-Marine Corps
Court of Criminal Appeals affirmed.
WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY ACCEPTING APPELLANT’S GUILTY PLEA TO AN UNAUTHORIZED ABSENCE IN EXCESS OF THIRTY DAYS WHEN APPELLANT WAS SUBJECT TO MILITARY CONTROL AND CUSTODY DURING A PORTION OF THE CHARGED PERIOD.
Appellant was charged with and pleaded guilty to a 53-day period of unauthorized absence. However, Appellant testified, and the military judge concluded, that he returned to military control and authority at some point during this period of unauthorized absence before initiating a second period of unauthorized absence. As a result, the record of trial demonstrates a substantial basis in law and fact to question Appellant’s plea to a 53-day period of unauthorized absence. Although the legal error committed by the military judge in this case may not have prejudiced Appellant on sentencing in light of his other convictions, our recent decision in United States v. Jenkins, ___ M.J. ___ (C.A.A.F. 2004), requires that we remand to allow the Court of Criminal Appeals to complete its review pursuant to Article 66, UCMJ 10 U.S.C. § 866 (2000), consistent with this opinion and with Jenkins.
Appellant entered a guilty plea to a
unauthorized absence from his unit, Naval Security Group Activity,
Based on this record, the judge stated:
It would appear that at least for a 5-hour period during the [unauthorized absence] period, Petty Officer Pinero was subject to military control and authority. He certainly complied with an order issued by his commanding officer to participate in a urinalysis and blood sample screening, and that would apparently . . . terminate the unauthorized absence at that point. And when he was ordered to report for duty the next day, that would appear to commence a second period of unauthorized absence, which was subsequently terminated by his apprehension on 15 December.
However, lacking a factual basis to determine the precise day on which the first absence ended and the second began, the judge found “as a matter in extenuation that during the period of unauthorized absence, at least for 5 hours, Petty Officer Pinero did subject himself to military custody and control and would not, in fact, have been an unauthorized absentee for that period.”
The judge solicited counsels’ opinions on how to proceed and whether the pretrial agreement remained undisturbed. Trial counsel adopted the judge’s suggestion that even if the precise date of the urinalysis was not determined, the agreement was still binding because “[i]t’s certainly proper for the court to find two short periods of [unauthorized absence] encompassed in a single extensive period.” The military judge further suggested that “even though there’s [sic] two periods, he’s still, I think, technically UA during every day of that period.”
The court recessed to explore the significance of the five-hour period. Counsel were unable to fix the date of the urinalysis or otherwise confirm Appellant’s presence at the clinic in November. Ultimately, trial defense counsel adopted the military judge’s theory that the charged period was appropriate and stated that “[w]e want to stick with the deal and ask you to consider whatever extenuation the providence inquiry may have elicited.”
In affirming, the Court of Criminal
concluded that the five-hour period was “a de minimis interruption of
alleged [unauthorized absence].” 58 M.J. at 503. The
court further concluded that Appellant waived the defense of early
since he lacked the intent to terminate his unauthorized absence, and
there was no material prejudice to Appellant’s substantial rights
“Appellant was not misled as to the charge, and no unfairness resulted
variance did not increase his punitive exposure.”
The Government’s Answer before the lower court contained 59 lines of legal analysis. The CCA’s en banc opinion replicates 48 of those lines verbatim or with modest grammatical or citation edits. Another six lines appear with more substantial modification. This material appeared in 8 of the CCA’s 13 paragraphs of legal analysis. But the lower court’s conclusions regarding waiver of available defenses and whether a de minimis absence was consistent with this Court’s holding in United States v. Francis, 15 M.J. 424, 429 (C.M.A. 1983), were not based on the Government’s Answer.
justice system takes particular care to test the validity of guilty
because the facts and the law are not tested in the crucible of the
process. Further, there may be subtle
pressures inherent to the military environment that may influence the
which servicemembers exercise (and waive) their rights.
The providence inquiry and a judge’s
explanation of possible defenses are established procedures to ensure
knowingly and voluntarily admit to all elements of a formal criminal
charge. See, e.g., United
States v. Care, 18 C.M.A. 535, 539, 40 C.M.R. 247, 251
v. United States, 394
that in guilty-plea cases the quantum of proof is less than that
required at a
contested trial. Before accepting a
plea, due process requires a military trial judge to question the
make clear the basis for a determination by the military judge or
whether the acts or the omissions of the accused constitute the offense
offenses to which he is pleading guilty.”
Care, 18 C.M.A. at 541, 40
253. See R.C.M. 910(e). A plea of not guilty must be entered where a
“substantial indication of direct conflict between the accused’s plea
following statements” arises.
an accused’s responses during the providence inquiry suggest a possible
to the offense charged, the trial judge is well advised to clearly and
concisely explain the elements of the defense in addition to securing a
basis to assure that the defense is not available.”
In the context of Article 86, the elements of the offense often include an aggravating factor of duration that bears on the maximum authorized punishment. Appellant was charged with a 53-day period of continuous unauthorized absence. However, Appellant’s statements regarding the interruption of his absence created a substantial basis to question the providence of his guilty plea because termination in this case is a defense to an absence exceeding 30 days. The military judge seemed to recognize as much when he concluded that a second period of unauthorized absence commenced following the command-directed urinalysis screening. Termination was not merely a “possible” defense here — the judge secured a factual basis establishing that Appellant was, for a five-hour period, not guilty of unauthorized absence. For these reasons, we hold that there was a substantial basis in law and fact to question Appellant’s guilty plea to a 53-day unauthorized absence.
Having found that Appellant was under military control and custody and not absent on a date in November, it was incumbent upon the military judge to resolve any conflicting facts so the correct duration could be determined and counsel could decide how to proceed regarding the remainder of the charged period. Notwithstanding Appellant’s return to military control, the judge and counsel attempted to preserve the pretrial agreement by finding a continuous 53-day absence based on the fact that Appellant was not present for duty for the entire day of the urinalysis. However, the hours of departure and return were not alleged, therefore, the unresolved termination date would have counted as a day of duty. MCM, Part IV, para. 10.(c).(9). Therefore, as a matter of law, on this record, the date of the urinalysis could not have sufficed as both the termination date of the first period of absence and the inception date for any subsequent period. Thus, the military judge’s conclusion that Appellant was “technically UA during every day of that period” was erroneous.
As important, even if Appellant’s absence had been charged from a specific hour, Appellant’s unauthorized absence could not have been continuous. A military judge may find multiple absences within a single charged period so long as the maximum authorized punishment does not exceed that for the longer period. Francis, 15 M.J. at 429. Under Francis there must be a factual basis to support the inception date of a second absence where that date is essential to calculating the legal punishments for Article 86 violations. That is, without an inception date it is impossible to know whether duration is an aggravating factor.
A factual interruption in a continuous period of unauthorized absence cannot be overlooked by a court where such interruption changes the qualitative nature of the offense and the punitive exposure. Moreover, whether there is incentive to do so or not, a servicemember cannot plead guilty to an offense he did not commit, in this case 53 days of continuous unauthorized absence. United States v. Schwabauer, 37 M.J. 338 (C.M.A. 1993); United States v. Lewis, 18 C.M.A. 287, 289, 39 C.M.R. 287, 289 (1969)(An accused may not “abandon evidence of a defense in favor of possible advantages derived from a guilty plea.”). Acceptance of Appellant’s plea in this case may prove to be harmless, but it was still error to accept the plea and we should not conflate that which is harmless with that which is de minimis in our analysis.
trial establishes sufficient facts to affirm Appellant’s conviction for
unauthorized absence of some lesser period.
Regarding prejudice, in his brief to this Court Appellant argues that “the maximum punishment for an unauthorized absence in excess of thirty days is dramatically more significant than even twice the maximum punishment for an absence of less than 30 days.” He also argues that a punitive discharge is not an authorized punishment for an unauthorized absence not exceeding 30 days. Moreover, termination by apprehension is only relevant in aggravation for unauthorized absence over 30 days. While we agree with Appellant that these are indeed accurate statements of the law, the argument ignores the fact that Appellant was tried at a special court-martial. Even without the absence offense, the aggregation of the other offenses to which Appellant pleaded guilty exposed Appellant to the jurisdictional maximum of a special court-martial.1
In light of our conclusions above, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. As review is not yet complete in accordance with our decision in United States v. Jenkins, ___ M.J. ___ (C.A.A.F. 2004),2 the record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for review consistent with this opinion. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.
1 At the time of Appellant’s trial Rule for Courts-Martial 201(f)(2)(B) authorized a special court-martial to adjudge no more than a bad-conduct discharge, confinement for six months, and forfeitures of two-thirds pay per month for six months.