TRIAL
STAGES: Merits: Guilty Pleas:
2023 (October Term)
United States v. Leipart, 85 M.J. 35 (the Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself; in a guilty plea context, a military judge who has advised an accused that he is waiving his right against self-incrimination only to those offenses to which he is pleading guilty cannot later rely on those statements as proof of a separate offense; neither the guilty plea itself nor any related statements as to one offense may be admitted to prove any element of a separate offense; to do so would compel an accused to incriminate himself in the separate criminal proceeding).
United States v. Hasan, 84 M.J. 181 (in this case, at the time of trial, appellant was prohibited from pleading guilty to any charge or specification alleging an offense for which the death penalty may be adjudged (however, a new version of Article 45(b), UCMJ, now provides otherwise).
(there is no absolute right to have a guilty plea accepted, nor, more generally, to enter any guilty plea that an accused might wish to enter).
(in this case, the military judge appropriately applied the statutory prohibition of Article 45(b), UCMJ, on guilty pleas to any charges or specifications alleging offenses for which the death penalty may be adjudged to preclude accused from pleading guilty to lesser-included offenses in court-martial on charges of premeditated murder and attempted premeditated murder arising, where (1) the judge reasoned that it would have been possible for accused to have been convicted of the charged capital offense without presenting any additional evidence if he were permitted to plead guilty to unpremeditated murder and attempted premeditated murder, and (2) that judge identified that accepting pleas of guilty to unpremeditated murder and attempted unpremeditated murder would have been the factual equivalent to pleading guilty to a capital offense).
(prohibiting an accused from pleading guilty is not a structural error).
2022 (October Term)
United States v. Kim, 83 M.J. 235 (during a guilty plea inquiry, the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it).
(because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the accused possesses an understanding of the law in relation to the facts).
(in a guilty plea situation, the colloquy between the military judge and an accused must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior).
(the fundamental requirement of plea inquiry involves a dialogue in which the military judge poses questions about the nature of the offense and the accused provides answers that describe his personal understanding of the criminality of his or her conduct).
(in this case, where appellant was charged with indecent conduct and that conduct implicated a First Amendment constitutional gray area with respect to the right to privacy, the plea colloquy needed to establish why possibly constitutionally protected material could still be service discrediting in the military context; in the absence of a colloquy between the military judge and appellant that contained an appropriate discussion and acknowledgment on the part of appellant between permissible and prohibited behavior, there was a substantial basis in law for questioning the plea, the military judge abused his discretion in accepting the plea, and the plea was improvident).
United States v. Day, 83 M.J. 53 (a waiver by operation of law may result from an unconditional guilty plea).
(an unconditional guilty plea generally waives all defects which are neither jurisdictional nor a deprivation of due process of law).
2021(October Term)
United States v. Hiser, 82 M.J. 60 (under RCM 910(e), a 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).
United States v. Moratalla, 82 M.J. 1 (before accepting a guilty plea, a military judge must ensure that there is a factual basis for the accused’s plea; a factual predicate for a plea of guilty is sufficiently established if the factual circumstances as revealed by the accused himself objectively support that plea).
(in obtaining a factual basis for a plea, a military judge must elicit actual facts from an accused and not merely legal conclusions).
(despite the existence of an otherwise adequate basis for a plea, if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; however, a mere possibility of conflict is not enough).
(appellant’s guilty plea to bank fraud under 18 U.S.C. § 1344 and charged under Article 134, UCMJ, was provident where the military judge established during the plea colloquy that (1) in order for appellant to secure funds for a house flipping business, she enlisted the help of a co-worker who agreed to apply for a loan at a credit union and to falsely represent to the credit union that he would use the loan proceeds to purchase appellant’s vehicle, (2) appellant had the specific intent to defraud the credit union, and (3) appellant took a substantial step in furtherance of the scheme to defraud when she met with the co-worker at the credit union to apply for the loan; contrary to appellant’s argument, it was irrelevant to the disposition of this case whether or not appellant actually sold her vehicle to the co-worker when she transferred the title to him after the bank loan had been secured; at the time of the application for the bank loan, appellant subjectively believed that her actions would not effect a car sale and intended that the credit union would rely to its detriment on representations she believed to be false; such actions clearly amounted to an attempt to execute a scheme to defraud the credit union, and the bank fraud statute punishes not only completed frauds, but also fraudulent schemes, including attempted fraudulent schemes; thus there was nothing in the record that raised a substantial question regarding appellant’s guilty plea).
2020 (October Term)
United States v. Castro, 81 M.J. 209 (during a guilty plea inquiry, a military judge must determine whether there is an adequate basis in law and fact to support the plea before accepting it).
(in this case, the military judge did not abuse his discretion in accepting appellant’s guilty plea to stealing gas that was the property of GSA by using a GSA fuel card without authorization to purchase gas for his car, despite the fact that GSA never had physical possession of the fuel before it was stolen and that appellant was not acting as the GSA’s agent in purchasing the fuel; appellant stipulated that the GSA paid for and owned the fuel that he put into his car and he confirmed this fact during the providence inquiry; because GSA was the entity that paid for the fuel, it thus had an interest therein superior to that of appellant as required for it to qualify as the owner of the fuel at the time the fuel was appropriated by appellant for his personal use; withholding the fuel from a party with a superior possessory interest is sufficient to constitute larceny; furthermore, an agency relationship is therefore not always necessary for the payer to have a greater right to possess the purchased property; appellant stipulated facts that were legally possible and that were consistent with his guilty plea; accordingly, appellant failed to show a substantial basis in law and fact for questioning the military judge’s acceptance of his guilty plea).
(there is no requirement that any witness be called or any independent evidence be produced to establish the factual predicate for the plea; a factual predicate is sufficiently established if the factual circumstances as revealed by the accused himself objectively support that plea).
United States v. Simpson, 81 M.J. 33 (an appellate court must uphold appellant’s guilty plea unless there is a substantial basis in law and fact for questioning the guilty plea).
(appellant could properly plead guilty to distributing an indecent visual recording under Article 120c(a)(3), UCMJ, as an aider and abettor of the person who distributed the recording to appellant).
2018 (October Term)
United States v. Forbes, 78 M.J. 279 (during a guilty plea inquiry, the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it).
United States v. Tucker, 78 M.J. 183 (where a military judge incorrectly instructed appellant on a negligence mens rea during the Care inquiry instead of a recklessness mens rea, appellant’s guilty plea to an Article 134 clause 1 and clause 2 offense of providing alcohol to an underage individual was not provident).
(appellant’s admission to conduct that facially satisfied a mens rea of recklessness cannot save his guilty plea to an Article 134 clause 1 and clause 2 offense of providing alcohol to an underage individual where (1) the military judge instructed appellant only on a negligence mens rea requirement and, there is no Article 134, UCMJ, offense of negligently providing alcohol to minors, (2) unlike in those cases where a military judge failed to define correctly a legal concept or failed to explain each and every element of the charged offense to the accused in a clear and precise manner, here the military judge affirmatively misstated the applicable legal concepts and the elements of the charged offense, and (3) the record did not reflect that despite the erroneous explanation of the mens rea, appellant otherwise knew the proper elements, admitted them freely, and pleaded guilty because he was guilty).
(an accused cannot plead guilty to conduct that was not criminal).
2017 (October Term)
United States v. Hardy, 77 M.J. 438 (under the plain language of RCM 905(b)(2) and (e) and past CAAF precedent, an unconditional guilty plea waives an unpreserved UMC objection; however, a service court of criminal appeals may exercise its powers under Article 66(c), UCMJ, to address an unpreserved UMC objection; but note that an executive order effective 1 January 2019 will amend RCM 905(e), likely affecting the analysis of future cases involving unpreserved UMC objections in which there is no other ground for finding waiver; the amended RCM 905(e) will specify that a failure to raise an objection under RCM 905(b)(pretrial motions) forfeits the objection absent an affirmative waiver).
(it is a general principle of criminal law that an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings; because an unreasonable multiplication of charges is not a jurisdictional defect, a guilty plea waives the objection).
United States v. Simpson, 77 M.J. 279 (in the event that an accused sets up a matter inconsistent with a plea of guilty, the military judge must resolve the inconsistency or reject the plea).
(in this case, the accused’s plea of guilty to larceny was improvident where the stipulation of fact set up a matter inconsistent with his plea by stating he stole the funds from an account holder, rather than the proper owner of the funds, the bank; as is true in the usual case involving a credit larceny, the bank was the proper object, not the account holder; in addition, as the stipulation of fact reflected, the bank was the only entity that possessed funds at the time of the fraudulent transactions, and there were no funds in the zero-balance account holder’s account; the accused obtained nothing from the account holder, and as a matter of law, therefore, the account holder could not be the object of the larceny).
(in this case, the accused’s plea of guilty to conspiracy to commit larceny was provident where the providence inquiry and the stipulation of fact showed an agreement between the accused and another soldier to use funds from an account holder’s zero-balance account in order to pay personal debts and where the accused performed overt acts in furtherance of the conspiracy such as arranging for the other soldier to receive the account information; the fact that the funds were actually obtained from a bank, as opposed to the account holder, was of no moment).
(in this case, the accused’s admissions during the providence inquiry, together with the stipulation of fact, established all the elements of the lesser included offense of attempted larceny where he admitted to performing overt acts, namely obtaining and withholding property that he believed belonged to a zero-balance account holder and these acts were done with the specific intent to commit a larceny by permanently depriving the account holder of the money at issue, and constituted more than mere preparation; the accused did, in fact, commit and plead guilty to larceny, but he was merely mistaken about who he was stealing from).
United States v. Mooney, 77 M.J. 252 (an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings).
(RCM 910(j) provides a bright-line rule that an unconditional guilty plea which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offenses to which the plea was made).
2016 (October Term)
United States v. Price, 76 M.J. 136 (a military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the judge that there is a factual basis for the plea; during the providence inquiry, a military judge has an affirmative duty to conduct a detailed inquiry into the offenses charged, the accused’s understanding of the elements of each offense, the accused’s conduct, and the accused’s willingness to plead guilty; judges are advised and cautioned against regarding the use of conclusions and leading questions that merely extract from an accused ‘yes’ or ‘no’ responses during the providence inquiry; a military judge must elicit actual facts from an accused and not merely legal conclusions).
(an accused retains the right to withdraw from a guilty plea in a timely manner if he or she believes a military judge’s questions are objectionable; in the alternative, an accused can resolutely and respectfully decline to answer specific questions posed by a military judge, although this action may cause the military judge to decide not to accept the guilty plea).2014 (September Term)
United States v. Akbar, 74 M.J. 364 (Article 45, UCMJ, states that a plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty may be adjudged).
United States v. Murphy, 74 M.J. 302 (because the 5000 rounds of 5.56 millimeter ammunition that appellant stole were included in the definition of explosive provided in RCM 103(11) and because appellant described all the facts necessary to establish his guilt to larceny of an explosive, a substantial basis in law or fact for questioning his guilty plea to larceny of an explosive did not exist).
(a guilty plea is provident so long as appellant was convinced of, and was able to describe, all of the facts necessary to establish his guilt).
(a military judge has a duty to accurately inform an appellant of the nature of his offense and an essential aspect of informing is a correct definition of legal concepts; however, failure to define correctly a legal concept or explain each and every element of the charged offense to the accused in a clear and precise manner is not reversible error if it is clear from the entire record that the accused knew the elements, admitted them freely, and pleaded guilty because he was guilty).
(during the providence inquiry, in defining the term explosives for the purpose of sentence enhancement in a larceny offense, a military judge should inform an accused of the definition provided in RCM 103(11) and the definitions provided in 18 USC § 232(5) and § 844(j), given that these statutes are explicitly incorporated into RCM 103(11).
United States v. Blouin, 74 M.J. 247 (if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea).
(any guilty plea must be both knowing and voluntary; the providence of a plea is based not only on the accused’s understanding and recitation of the factual history of the crime, but also on an understanding of how the law relates to those facts).
United States v. Phillips, 74 M.J. 20 (a military judge has significant discretion in deciding whether to accept an accused’s guilty pleas, and appellant bears the burden of establishing that the military judge abused that discretion, i.e., that the record shows a substantial basis in law or fact to question the plea).
(in this case, appellant’s company commander personally gave appellant a written order restricting him to the confines of the military installation; in violation of the order, appellant drove off the installation to visit and reside with his girlfriend; during the providence inquiry, appellant stated that he was guilty because he was residing off-post when he was clearly given a command to stay on post and not break restriction; in determining the ultimate offense, the environment in which the order was given must be considered; appellant had two lengthy absences, totaling more than three years, one of which was admittedly undertaken to impede court-martial proceedings, and a civilian conviction on two counts for exposing himself to a child; the order was issued in furtherance of a proper military function; under the circumstances of this case, appellant failed to establish that his commander gave the order of restriction solely to improperly escalate the punishment; therefore, the ultimate offense doctrine has no application, and appellant has failed to establish a substantial basis in law or fact to question his guilty pleas).
(the distinction between an Article 90 disobedience of an order offense and an Article 134 breaking restriction offense does not require a Hartman (69 MJ 467 (CAAF 2011)) discussion at the plea inquiry where a military judge must explain to an accused during the guilty plea inquiry the difference between conduct that was constitutionally protected and conduct that could be legitimately punished).
2013 (September Term)
United States v. Moon, 73 M.J. 382 (if an accused sets up matter inconsistent with a guilty plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea).
(the providence of a guilty plea is based not only on the accused’s understanding and recitation of the factual history of the crime, but also on an understanding of how the law relates to those facts).
(when a charge against a servicemember may implicate both criminal and constitutionally protected conduct, the distinction between what is permitted and what is prohibited constitutes a matter of critical significance, and the colloquy between the military judge and an accused must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior).
(appellant’s plea of guilty to possessing images of “nude minors and persons appearing to be nude minors,” in violation of Article 134, UCMJ, was improvident where (1) the military judge provided oscillating, inconsistent, and conflicting explanations of the conduct that he believed constituted the offense of possessing images of nude minors, appellant affirmed contradictory descriptions of the images at issue, and the confusion was never resolved, and (2) the military judge failed adequately to elicit from appellant that he clearly understood the critical distinction between criminal and constitutionally protected conduct).
(a discussion between trial counsel and the military judge provides no substitute for the requisite interchange in a guilty plea between the military judge and the accused; accordingly, a trial counsel’s understanding of his or her own case theory does not render a plea provident).
United States v. Finch, 73 M.J. 144 (during a guilty plea inquiry, the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it).
(in order to ensure a provident plea, the military judge must accurately inform appellant of the nature of his offense and elicit from him a factual basis to support his plea; an essential aspect of informing appellant of the nature of the offense is a correct definition of legal concepts; the judge’s failure to do so may render the plea improvident).
(an error by the military judge in failing to advise an accused of the nature of the offense and the correct definition of its legal concepts does not always render a guilty plea improvident; where the record contains factual circumstances that objectively support the guilty plea to a more narrowly construed statute or legal principle, the guilty plea may be accepted).
(in the providence inquiry with respect to appellant’s guilty pleas to distribution of child pornography and receipt and possession of child pornography, the military judge’s statement that the images could display either actual or virtual minors did not render appellant’s pleas improvident due to any confusion as to whether appellant was pleading to offenses involving actual minors with a maximum sentence of thirty years or offenses involving virtual minors with a maximum sentence of eight months; appellant’s trial defense counsel explicitly agreed with the government’s calculation of a maximum sentence to confinement of thirty years, under a statute limited to actual minors; the providence inquiry reflects that the parties proceeded with the understanding that the specifications involved actual minors with the corresponding thirty-year maximum sentence despite the military judge’s inconsistent reference to virtual minors; at no point during the providence inquiry or sentencing portion of the trial was there any expression of surprise or confusion as to the maximum sentence; following the military judge’s inconsistent statement, he defined the term minor as used in the specification as a person under the age of 18 years, and the plain meaning of the term person references an actual person rather than a virtual person; that definition is identical to the definition of minor as the term is used in 18 USC § 2252A(a)(2) and (5), which are limited to actual minors; furthermore, in discussing sexually explicit conduct, the military judge informed appellant of the factors to consider in determining whether the depictions included lascivious exhibition of the genitals or pubic area of any person; despite the single inconsistent reference to images of virtual minors, the parties proceeded as though the allegations involved actual persons and the military judge elicited adequate information from appellant to support the plea).
United States v. Hines, 73 M.J. 119 (in determining whether a guilty plea is provident, the military judge may consider the facts contained in the stipulation of fact along with the inquiry of the accused on the record).
(if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea).
(to the extent that the military judge’s inquiry into the providence of an accused’s guilty pleas to two larceny specifications revealed an inconsistency between his pleas to the entire amount of basic allowance for housing in light of his apparent entitlement to a lesser amount, it was resolved when the accused made very clear that the condition precedent for being entitled to any basic allowance for housing had not been fulfilled).
United States v. Moss, 73 M.J. 64 (an accused has the ultimate authority to determine whether to plead guilty).
United States v. Passut, 73 M.J. 27 (as a matter of law and fact, a military judge did not abuse his discretion in accepting appellant’s guilty plea to violating Article 107, UCMJ, where appellant admitted making false statements to civilian AAFES employees about his social security number and damage to his CAC card when he was writing personal checks for groceries and cash, because (1) AAFES has a relationship to the armed forces sufficient to establish a military function, and as such, AAFES employees cashing appellant’s checks were performing a military function and statements made to those employees qualified as official statements for the purposes of Article 107, UCMJ, and (2) during the providence inquiry, appellant agreed with the military judge that AAFES served a military function and that the civilian AAFES employees he lied to were performing that function in cashing his checks; given appellant’s admissions, he agreed to sufficient facts to establish the official element of Article 107, UCMJ).
2012 (September Term)
United States v. Schell, 72 M.J. 339 (if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; a military judge abuses his discretion if he neglects or chooses not to resolve an inconsistency or reject the inconsistent or irregular pleading).
(where appellant pleaded guilty to an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), he did not raise a matter inconsistent with his guilty in his unsworn statement during sentencing when he stated that he did not actually intend to engage in illegal sexual activity with the minor; because he admitted in a detailed stipulation of fact and during the plea colloquy that he intended to entice her to engage in illegal sexual activity, he had the requisite intent to support an attempt conviction under § 2422(b); the offense did not require that he have the specific intent to actually engage in illegal sexual activity with the minor – only the intent to entice the minor into engaging in illegal sexual activity).
(if a military judge fails to explain the elements of an offense to an accused during a guilty plea inquiry, it is reversible error unless it is clear from the entire record that the accused knew the elements, admitted them freely, and pleaded guilty because he was guilty).
(during a providence inquiry with an accused pleading guilty to an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), the military judge erred in defining the elements of the offense because she failed to instruct the accused that he had to take a substantial step toward enticing a minor in order to plead guilty to an attempt under Article 134, UCMJ; additionally, neither the specification nor the stipulation of fact mentioned that a substantial step was an element of the Article 134, UCMJ, offense; although the accused was not entitled to receive a hornbook review of the distinction between mere preparation and a substantial step, the record had to objectively reflect that he understood that his conduct, in order to be criminal, needed to go beyond preparatory steps and be a direct movement toward the commission of the intended offense; that the accused admitted facts during his plea colloquy that were likely sufficient to prove that he took a substantial step towards enticing a minor did not answer the altogether different question whether he understood that a substantial step was necessary to make his conduct criminal; even though the accused agreed that the military judge correctly described his crime, and admitted that he took steps to attempt to entice the minor, the record did not demonstrate that the accused understood how the law related to the facts; as such, there was a substantial basis in law to question the providence of the plea).
United States v. Whitaker, 72 M.J. 292 (in determining whether a guilty plea is provident, the military judge may consider the facts contained in the stipulation of fact along with the inquiry of appellant on the record).
(in conducting a providence inquiry into a guilty plea to sodomy, a military judge did not err in failing to explain why the accused’s conduct was subject to criminal sanction, where the accused admitted in a stipulation of fact to an act of oral sodomy on a sleeping victim; a sleeping victim cannot consent, and nonconsensual sexual activity is simply not protected conduct under Lawrence (539 U.S. 558 (2003)).
(the accused’s plea of guilty to sodomy with a sleeping victim was provident where the stipulation of fact stated that the accused knew that the victim was asleep and an unwilling participant, and there were no facts or statements in the record that were inconsistent with the stipulation; although this fact was neither set forth in the specification nor explored by the military judge during the providence inquiry, the military judge was allowed to consider the stipulation of fact in determining whether the accused’s plea was provident, and whether the accused’s conduct under the circumstances implicated constitutionally protected conduct; considering the stipulation of fact in conjunction with the providence inquiry, which adequately covered the elements of Article 125, UCMJ, there was no substantial basis in law or fact to question the providence of the accused’s plea).
United States v. Castellano, 72 M.J. 217 (in the context of a guilty plea to sodomy without force, a plea is improvident where there is no discussion of the Marcum (60 MJ 198 (CAAF 2004)) factors (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) between the military judge and the accused; the presence of a Marcum factor is a matter of critical significance because it distinguishes between what is permitted and what is prohibited).
United States v. Medina, 72 M.J. 148 (the accused’s guilty plea to consensual sodomy with an adult in violation of Article 125, UCMJ, was improvident where the providence inquiry, in which the military judge added an element requiring that the act of sodomy be prejudicial to good order and discipline, failed to ensure the accused’s personal understanding of matters critical to his guilt; that is, the military judge failed to discuss with the accused why this additional element removed his sexual activity from the liberty interest protection recognized in Lawrence (539 US 558) and Marcum (60 MJ 198) and subjected that activity to criminal sanction).
United States v. Caldwell, 72 M.J. 137 (before accepting a guilty plea, the military judge must conduct an inquiry to determine whether there is factual basis for the plea, the accused understands the plea and is entering it voluntarily, and the accused admits each element of the offense).
(a guilty plea will not be rejected unless there is a substantial basis in law and fact for questioning the plea).
(there was a substantial basis in law and fact for questioning appellant’s guilty plea to committing the offense of self-injury without the intent to avoid service where his plea did not establish that his conduct was to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, and thus did not satisfy the elements of the offense; first, the record is clear that appellant engaged in a bona fide suicide attempt, and his conduct was not to the prejudice of good order and discipline where (1) his actions were precipitated by the death of a friend and the prospect of going to the brig, (2) he attempted suicide while alone in his barracks room, and (3) a gunnery sergeant and medically trained corpsman administered first aid to him, as they would have in response to any other injury; second, appellant’s statement during the providence inquiry that his suicide attempt could discredit the service because the public would look less favorably toward the Marine Corps and view his superiors as not doing their jobs did not establish that his conduct was service discrediting; to the contrary, this statement indicates that in appellant’s view it was not his actions that would cause discredit, but the failure of his unit’s leaders that would have a tendency to cause discredit).
United States v. Riley, 72 M.J. 115 (Article 45(a), UCMJ, which governs improvident guilty pleas, includes procedural requirements to ensure that military judges make sufficient inquiry to determine that an accused’s plea is knowing and voluntary, satisfies the elements of charged offenses, and more generally that there is not a basis in law or fact to reject the plea).
(a guilty plea is a grave and solemn act which should be accepted only with care and discernment; the plea is more than an admission of past conduct; it is an accused’s consent that a judgment of conviction may be entered without a trial, a waiver of his right to trial before members and a judge).
(the military justice system imposes even stricter standards on military judges with respect to guilty pleas than those imposed on federal civilian judges).
(in the context of a guilty plea inquiry, sex offender registration consequences are not a collateral consequence of the plea; as such, in this case, where sex offender registration was a direct consequence of appellant’s guilty plea to the offense of kidnapping a minor, the military judge was obligated to inquire into appellant’s awareness of this consequence of her guilty plea).
(in order to ensure that pleas of guilty are not only knowing and voluntary but appear to be so, detailed procedural rules govern the military judge’s duties with respect to the plea inquiry).
(it is incumbent upon the military judge to ensure that an accused’s plea is a knowing, intelligent act done with sufficient awareness of the relevant circumstances and likely consequences; the failure to inform a pleading accused that the plea will necessarily require registration as a sex offender affects whether the plea was knowingly made; given the lifelong consequences of sex offender registration, which is a particularly severe penalty, a military judge’s failure to ensure that an accused understood the sex offender registration requirements of her guilty plea to kidnapping a minor results in a substantial basis to question the providence of her plea).
(the military judge shoulders the primary responsibility for the acceptance of a knowing plea; while the defense counsel plays an important role in securing a provident pleas, it is the duty of the military judge to ensure that there is a knowing, intelligent, conscious waiver in order to accept the plea; to be sure, a defense counsel must inform an accused of the consequences of a guilty plea, it is the military judge who bears the ultimate burden of ensuring that the accused’s guilty plea is knowing and voluntary).
2011 (September Term)
United States v. Rose, 71 M.J. 138 (the entry of a guilty plea is a critical stage of the litigation, where a criminal defendant is entitled to effective assistance of counsel).
United States v. Watson, 71 M.J. 54 (a court must find a substantial conflict between the plea and the accused’s statements or other evidence in order to set aside a guilty plea; the mere possibility of a conflict is not sufficient).
(in this case, during his guilty plea to fraudulent enlistment, appellant stated in a stipulation of fact that information regarding his psychiatric treatment history was a waivable disqualification, but later stated that it could have potentially disqualified him from enlisting; also, during the plea colloquy, appellant stated that he assumed that his treatment history would be a disqualifying factor or one that would severely hinder his chances of enlistment, but later stated that he believed that it may have impacted his ability to enlist; any inconsistencies in appellant’s stipulation of fact or plea colloquy when he pleaded guilty to fraudulent enlistment did not amount to a substantial conflict requiring further inquiries).
United States v. Weeks, 71 M.J. 44 (it is an abuse of discretion for a military judge to accept a guilty plea without an adequate factual basis to support it; it is also an abuse of discretion if the ruling is based on an erroneous view of the law).(if an accused’s admissions in the plea inquiry do not establish each of the elements of the charged offense, the guilty plea must be set aside).
United States v. Ballan, 71 M.J. 28 (in the context of a specification that was legally sufficient at the time of trial and to which a plea of guilty was entered and accepted, no prejudice is found and the providence of a plea will not be disturbed where the providence inquiry clearly delineates each element of the offense and shows that the appellant understood to what offense and under what legal theory he was pleading guilty, even if that specification is later determined to fail to allege an element of the offense because of intervening changes in the law).
(a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case).
(a military judge may not accept a plea of guilty until the elements of each offense charged have been explained to the accused and unless the military judge has questioned the accused to ensure that he understands and agrees that the acts or the omissions constitute the offense or offenses to which he is pleading guilty).
(the guilty plea process within the military justice system ensures that an appellant has notice of the offense of which he may be convicted and all elements thereof before his plea is accepted and, moreover, protects him against double jeopardy).
(while it was error in a retroactive sense to accept a plea of guilty to an Article 134, UCMJ, charge and specification, which did not explicitly or by necessary implication contain the terminal element, under the facts of this case, the showing of error alone was insufficient to show prejudice to a substantial right, where during the plea colloquy, the military judge described clauses 1 and 2 of the terminal element of Article 134, UCMJ, for each specification, the record conspicuously reflected that appellant clearly understood the nature of the prohibited conduct as being in violation of clause 1 or clause 2, and appellant admitted that his actions were service discrediting in violation of clause 2).
United States v. Hayes, 70 M.J. 454 (Article 45, UCMJ, includes procedural requirements to ensure that military judges make sufficient inquiry to determine that an accused’s plea is knowing and voluntary, satisfies the elements of charged offenses, and more generally that there is not a basis in law or fact to reject the plea; specifically, if an accused after arraignment makes in irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty).
(consistent with Article 45, UCMJ, if an accused sets up matter inconsistent with a guilty plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; a military judge who fails to do so has abused his or her discretion).
(the threshold for determining when additional inquiry is required when a matter is raised that potentially offers the accused a defense to a guilty plea is the possible defense standard; an accused is not required to present a prima facie defense before the threshold for further inquiry is met; the possible defense standard is intended to serve as a lower threshold than a prima facie showing because it is intended as a trigger to prompt further inquiry pursuant to Article 45, UCMJ, and United States v. Care, 18 CMA 535, 40 CMR 247 (1969), not to determine whether the defense is available or whether members in a contested case should be given an instruction; adherence to the possible defense standard also furthers Congress’s intent behind Article 45, UCMJ, to ensure the acceptance of a guilty plea be accompanied by certain safeguards to insure the providence of the plea, including a delineation of the elements of the offense charged and an admission of factual guilt on the record).
(an affirmative defense to a charged offense would, by definition, constitute a matter inconsistent with the plea of guilty and therefore the military judge must resolve the apparent inconsistency or reject the plea).
(not every mitigating statement or word during a guilty plea requires further inquiry; thus, a military judge is not required to reopen a plea and inquire further where an accused raises the mere possibility of a defense).
(even if an accused does not volunteer all the facts necessary to establish a defense, if he sets up matter raising a possible defense, then the military judge is obliged to make further inquiry to resolve any apparent ambiguity or inconsistency).
United States v. Goodman, 70 M.J. 396 (during a guilty plea inquiry, the accused must establish not only that he believes he is guilty but also that the factual circumstances support that plea).
(if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; to rise to the level of inconsistency contemplated by Article 45(a), UCMJ, matters raised at trial must have reasonably raised the question of a defense or must have been inconsistent with the plea in some respect).
(appellant’s testimony during the guilty plea inquiry that he subjectively believed that his sexual comments to the victim were welcome did not raise a mistake of fact defense or an inconsistency with regard to his guilty plea, and there was no substantial basis in either law or fact to question the plea, where nothing in the record supported the reasonableness of such a belief; appellant, who outranked the victim and was tasked with in-processing her into her new unit, admitted that, despite his previous training on sexual harassment, he initiated the sexual banter in response to the victim’s attempts at being friendly, and he admitted that his comments created a very hostile work environment that made it difficult for the victim to perform her duties; appellant knew his comments were likely to bring offense, and he made them deliberately, in an attempt to find a woman who would be willing to engage in sex with him).
(the fundamental requirement
of plea inquiry
under Care and RCM 910 involves a dialogue in which the
military judge
poses questions about the nature of the offense and the accused
provides
answers that describe his personal understanding of the criminality of
his or
her conduct; a discussion between the trial counsel and the military
judge
about legal theory and practice, at which the accused is a mere
bystander,
provides no substitute for the requisite interchange between the
military judge
and the accused).
(appellant’s guilty plea to
the offense of
consensual sodomy was improvident where the military judge described
the
offense of sodomy solely in terms of the definition of the offense set
forth in
the MCM and appellant merely described the nature of the sexual conduct
between
himself and the other party to the sexual act, but the inquiry failed
to
reflect consideration of the appropriate framework for distinguishing
between
conduct constitutionally protected and conduct that may be prosecuted
criminally under Article 125 as set forth in United States v. Marcum,
60
MJ 198 (CAAF 2006); although in response to the questions from the
military
judge, appellant stated that the incident took place on board a
military
facility, that the other participant in the sexual activity was a
servicemember
assigned to the same ship as appellant, and that a third servicemember
was
present and asleep in the room at the time of the charged act of
sodomy, the
military judge failed to explain to appellant the significance of the
questions, nor did the military judge ask appellant whether he
understood the
relationship of the questions and answers to the distinction between
constitutionally protected behavior and criminal conduct; in the
absence of a
dialogue employing lay terminology to establish an understanding by the
accused
as to the relationship between the supplemental questions and the issue
of
criminality, appellant’s plea was not provident).
United
States v. Flores, 69 M.J. 366 (in a guilty
plea context, a military judge
who has advised an accused that she is waiving her right against
self-incrimination only to those offenses to which she is pleading
guilty
cannot later rely on those statements as proof of a separate offense;
to do so
would compel an accused to incriminate herself in the separate criminal
proceeding).
(a
guilty plea and related statements to one offense cannot be admitted to
prove any element of a separate offense; however, this prohibition does
not
apply when using a plea to a lesser included offense to prove a common
fact or
element of a greater offense).
United
States v. Soto, 69 M.J. 304 (a plea of guilty is
more than an admission of guilt - it is the waiver of bedrock
constitutional
rights and privileges; under controlling Supreme Court precedent, it
is,
therefore, constitutionally required under the Due Process Clause of the
Fifth
Amendment that a judge ensure that a guilty plea be entered into
knowingly and
voluntarily; it is axiomatic that the military justice system imposes
even
stricter standards on military judges with respect to guilty pleas than
those
imposed on federal civilian judges).
(in
order to ensure
that pleas of guilty are not only knowing and voluntary but appear to
be so,
detailed procedural rules govern the military judge’s duties with
respect to
the plea inquiry; the military judge must ensure there is a basis in
law and
fact to support the plea to the offense charged).
(as
part and parcel
of the providence of an accused’s guilty plea, the military judge shall
inquire
to ensure that the accused understands the pretrial agreement, and that
the
parties agree to the terms of the agreement; this is necessary to
ensure that
an accused is making a fully informed decision as to whether or not to
plead
guilty).
(it
is the military
judge’s responsibility to police the terms of pretrial agreements to
insure
compliance with statutory and decisional law as well as adherence to
basic
notions of fundamental fairness; it is for this reason that the RCM
910(f)(3)
requires that the military judge shall require disclosure of the entire
agreement excepting the quantum limitations before accepting a plea of
guilty;
further, as required by RCM 910(h)(3), after the sentence is announced,
the
military judge shall both inquire into any parts of the PTA not
previously
examined and ensure that an accused understands all material terms; an
inquiry
that falls short of these requirements and fails to ensure the accused
understands the terms of the agreement is error).
(military judges need to be
ever vigilant in
fulfilling their responsibility to scrutinize pretrial agreement
provisions to
ensure that they are consistent with statutory and decisional rules,
and basic notions of fundamental fairness).
(a fundamental principle on
pretrial
agreements is that the agreement cannot transform the trial into an
empty
ritual; judicial scrutiny of PTA provisions at the trial level helps to
ensure
that this principle is fulfilled).
(not every procedural failure
in reviewing a
pretrial agreement results in an improvident plea).
(in this case, a provision in
the pretrial
agreement required that appellant request a BCD during the sentencing
phase of
the court-martial; this provision was placed in the quantum portion of
the PTA,
notwithstanding the fact that it was not a quantum limitation on the
sentence;
the provision was neither disclosed to the military judge prior to his
accepting appellant’s plea of guilty (although the military judge
specifically
asked whether there were any conditions in the quantum portion), nor
was it
discussed with appellant before, during, or after the providence
inquiry;
examining the quantum portion of the agreement after the announcement
of
sentence, the military judge did not acknowledge the term requiring
appellant
to request a punitive discharge during sentencing, let alone discuss it
with
appellant; where the provision in question is one that goes directly to
the
sentence requested by an accused and imposed by the military judge, the
provision is tucked away in the quantum portion of the PTA (although it
is not
a sentence limitation), and the parties fail to disclose the provision
in
response to a direct question by the military judge, the integrity of
the
guilty plea process itself is undermined; under the facts and
circumstances of
this case, it appears that the military judge was unaware that
appellant’s
request for a BCD was required by the PTA; thus, it cannot be said that
the
request did not influence the sentence imposed; under the particular
facts of this
case, there is a substantial basis in law to question the providence of
appellant’s plea and the plea inquiry was improvident).
(in accordance with RCM
701(g)(1), the
military judge may specify the time, place, and manner of making
discovery and
may prescribe such terms and conditions as are just; thus, it could be
within
the military judge’s discretion to deny a mid-providence request to
stop the
trial for an accused to review evidence).
(an
unconditional
guilty plea which results in a finding of guilty waives any objection,
whether
or not previously raised, insofar as the objection relates to the
factual issue
of guilt of the offenses to which the plea was made; the point is that
a
counseled plea of guilty is an admission of factual guilt so reliable
that,
where voluntary and intelligent, it quite validly removes the
issue of
factual guilt from the case).
(an
unconditional
guilty plea generally waives all pretrial and trial defects that are
not
jurisdictional or a deprivation of due process of law).
(appellant’s
unconditional guilty plea to receiving child pornography waived any
issues
related to the military judge’s denial of his pretrial and
mid-providence
requests to view the child pornography, where the denial neither
implicated due
process rights nor resulted in the loss of appellant’s pretrial
agreement).
(during a guilty
plea inquiry the military judge is charged with determining whether
there is an
adequate basis in law and fact to support the plea before accepting it;
in
determining whether a guilty plea is provident, the military judge may
consider
the facts contained in the stipulation of fact along with the inquiry
of
appellant on the record).
(in this case,
the providence inquiry provided a
sufficient factual basis for the military judge to accept appellant’s
guilty
plea to receiving child pornography, where (1) the detailed stipulation
of fact
described how appellant searched for, accessed, viewed, and saved the
pornographic images, and why he believed the images depicted children,
ranging
from ten to seventeen, some in lascivious poses, and some of which
included
girls performing a sexual act with an adult, (2) appellant testified
that he
had read the stipulation and that everything contained in the
stipulation was
the truth, and (3) appellant’s statements during the providence inquiry
were consistent
with the stipulation of fact, raised no matters inconsistent with his
guilty
pleas, demonstrated that he was convinced of his guilt, and he was able
to
describe all the facts necessary to establish guilt, including adequate
descriptions of the pornographic images at issue; no substantial basis
in law
or fact was raised for the military judge to reject the plea).
(an
accused may
choose, with convening authority approval, to plead guilty to any
amended
specification as long as the plea inquiry establishes that such a plea
is
knowing and voluntary and the plea is accepted by the military judge).
(in
cases where
offenses are pleaded for exigencies of proof, depending on what the
plea
inquiry reveals or of which offense the accused is ultimately found
guilty, the
military judge may properly accept the plea and dismiss the remaining
offense).
(by
pleading guilty, an accused does more than admit that he committed the
various acts alleged in a specification; he is admitting guilt of a
substantive
crime).
(appellant’s unconditional
guilty pleas waived
the issue of whether the specifications charging appellant with receipt
and
possession of the same child pornography were multiplicious, where the
specifications were not facially duplicative because appellant received
the
files of the images on one medium and stored them on another).
United
States v. Smead, 68 M.J. 44 (the military
judge shall not accept a plea of
guilty without first determining that the plea is voluntary).
(in this case, the record did
not raise a
substantial question regarding the voluntariness of appellant’s plea,
where
despite the erroneous reinstatement at the rehearing of charges
dismissed with
prejudice pursuant to a PTA in appellant’s first court-martial,
appellant did
not assert at the rehearing that revival of the charges would
compromise his
ability to make a voluntary decision with respect to pleas or a plea
agreement,
the reinstated charges to which appellant pleaded not guilty were again
withdrawn
with prejudice at the rehearing, appellant’s second PTA contained
generally
more favorable terms than his original PTA, and appellant told the
military
judge during the providence inquiry that he had voluntarily entered in
to the
plea agreement).
United States v. Nance, 67 M.J. 362 (Article
45(a), UCMJ, requires military judges to reject a plea of guilty if it
appears
that an accused has entered the plea of guilty improvidently; to
prevent the
acceptance of improvident pleas, the military judge has a duty to
establish, on
the record, the factual bases that establish that the acts or omissions
of the
accused constitute the offense or offenses to which he is pleading
guilty; if the
military judge fails to establish that there is an adequate basis in
law and
fact to support the accused’s plea during the providence inquiry, the
plea will
be improvident).
(in a guilty plea to wrongful
use of coricidin
cough and cold medicine as conduct prejudicial to good order and
discipline
under Article 134, UCMJ, the factual circumstances as revealed by the
accused
himself objectively supported his plea where appellant admitted that he
repeatedly gathered with other airmen to abuse the medicine with the
intent of
getting high and that this conduct would affect military readiness; in
a
stipulation of fact, appellant admitted that he met on five occasions
with four
fellow airmen, including one of lower rank, and one enlisted member of
the U.S.
Army to abuse the medicine with the intent to become intoxicated, and
that in
addition to making him high, abusing the medicine impaired his motor
skills and
sometimes made him pass out or enter into a dream-like state from which
he
emerged disoriented; appellant repeated the same facts during the plea
inquiry,
stating that he experienced nausea, blackouts, and extremely impaired
motor
skills after taking the medicine; these facts legally and factually
supported
the prejudicial to good order and discipline element of the charged
violation
of Article 134, UCMJ).
(although the use of leading
questions that do
no more than elicit “yes” and “no” responses during the providence
inquiry is
disfavored, a military judge’s use of leading questions does not
automatically
result in an improvident plea; rather, the totality of the
circumstances of the
providence inquiry are examined, including the stipulation of fact, as
well as
the relationship between the accused’s responses to leading questions
and the
full range of the accused’s responses during the plea inquiry).
(in this case, the military
judge’s use of
leading questions during the providence inquiry did not transform what
would
otherwise be a provident plea to a charge of conduct prejudicial to
good order
and discipline with a sufficient basis in law and fact into an
improvident one,
where the military judge only used leading questions to amplify three
points
that had already been established on the record, the objective facts
set forth
in the stipulation of fact, the objective facts already elicited from
appellant
earlier in the plea inquiry, and appellant’s explicit agreement that
his
conduct was prejudicial to good order and discipline in the armed
forces).
(during the providence
inquiry, the military judge is required to elicit from
the accused factual circumstances that objectively support each element
of the
charged offense to which a plea is entered; determining whether those
factual
circumstances establish conduct that is or is not prejudicial to good
order and
discipline is a legal conclusion that remains within the discretion of
the
military judge in guilty plea cases).
United
States v. Riddle, 67 M.J. 335 (if, during the
proceedings, the accused sets
up matter inconsistent with the plea, it is the responsibility of the
military
judge to either resolve the inconsistency or reject the plea).
(where
an offense is a lesser included offense of the charged offense, an
accused is
by definition on notice because it is a subset of the greater offense
alleged;
however, where a distinct offense is not inherently a lesser included
offense,
during the guilty plea inquiry, the military judge or the charge sheet
must
make the accused aware of any alternative theory of guilt to which he
is by
implication pleading guilty).
(an
accused has a right to know to what offense and under what legal theory
he or
she is pleading guilty; this fair notice resides at the heart of the
plea
inquiry; the providence of a plea is based not only on the accused’s
understanding and recitation of the factual history of the crime, but
also on
an understanding of how the law relates to those facts).
(rejection
of a guilty plea
requires that the record of trial show a
substantial basis in law or fact for questioning the plea).
(in
this case, the accused’s statement during the plea inquiry that he
shoved his
wife, who was holding a broken stem from a stemware glass, because he
wanted
her out of his face with the glass did not provide a substantial basis
in law
and fact for rejecting the accused’s guilty plea to involuntary
manslaughter of
his wife; after reviewing the elements of the offenses with the
accused, the
military judge recognized the “possibility” of the defense of
self-defense
resulting from the argument between the accused and his wife and
properly asked
a number of questions to determine whether the defense was raised; in
the end,
there was no substantial conflict with the plea and there were no
unresolved
questions that would require the military judge to explain the elements
of the
defense to the accused; the accused’s responses to the military judge
were
unambiguous -- he did not feel threatened by his wife; he did not
apprehend,
reasonably or otherwise, imminent bodily harm; and he harbored no
belief that shoving
his wife was necessary for his own protection; the record reflects that
the
possibility of self-defense was resolved by this inquiry, and there was
no
substantial basis in law or fact for rejecting the plea).
United
States v. Glenn, 66 M.J. 64 (the military
judge did not abuse her
discretion in accepting appellant’s guilty pleas where appellant’s
mitigation
evidence in sentencing that he suffered from mental health problems (a
mood
disorder called cyclothymic disorder) did not raise a substantial basis
in law
and fact for questioning his guilty plea; there was no testimony
indicating
that this mood disorder, without more, would be a defense to
appellant’s
offenses, there was no testimony suggesting that this mood disorder
affected appellant’s
mental responsibility at the time of the offenses, and appellant does
not now
claim that he lacked mental responsibility for the offenses to which he
pleaded
guilty).
United
States v. Holbrook, 66 M.J. 31 (to reject a
guilty plea, the trial record must
show a substantial basis in law and fact for questioning the guilty
plea).
(appellant’s statements on the record during
the providence inquiry that he believed the substance he sold was
marijuana,
but was later told that it was not marijuana, raised the possibility
that the
distributed substance was not marijuana; as such, appellant set up
matter
inconsistent with his guilty plea; the military judge’s subsequent
questions
regarding the characteristics and price of the distributed substance
failed to
resolve whether appellant believed that, at the time he entered a plea
of
guilty, his actions constituted the wrongful distribution of marijuana;
in the
absence of further inquiry by the military judge, there was a
substantial basis
in law and fact to question appellant’s plea to wrongful distribution
of
marijuana).
United States v. Shaw,
64 M.J. 460 (if an accused sets up matter inconsistent with the guilty
plea at any time during the proceeding, the military judge must either
resolve the apparent inconsistency or reject the plea).
2006
United
States v. Miller, 63 M.J. 452 (in this case, appellant’s
failure to know
that he would be required to register in his state as a sex offender as
a
result of his conviction was not the result of the language of the
pretrial
agreement, was not induced by the military judge’s comments, nor was it
made
readily apparent to the military judge; because appellant’s lack of
knowledge
is not the result of any of the above, the military judge did not err
in his
responsibility to ensure that appellant understood all the consequences
of his
guilty plea; therefore, as there was no substantial basis to question
his
guilty plea, appellant’s plea was provident and will not be set aside).
(even if an
accused does
not volunteer all the facts necessary to establish a defense, if he
sets up
matter raising a possible defense, then the military judge is obligated
to make
further inquiry to resolve any apparent ambiguity or inconsistency;
only after
the military judge has made this inquiry can he then determine whether
the
apparent inconsistency or ambiguity has been resolved; however, to
answer this
question, there must be sufficient information on the record from which
to
arrive at this conclusion).
(Article 45,
UCMJ, manifests
a congressional intent that guilt be acknowledged consistently from the
pleas
through the sentence; when, either during the plea inquiry or
thereafter, and
in the absence of prior disavowals, circumstances raise a possible
defense, a
military judge has a duty to inquire further to resolve the apparent
inconsistency).
(a military
judge erred in accepting the
accused’s guilty plea to indecent acts with a child, where the accused
set up a
matter inconsistent with his guilty plea when he raised on the record
the
possibility that he had an honest and reasonable mistake as to the
victim’s
age).
(although the
accused’s alleged mistake as to
the victim’s age precluded the acceptance of his guilty plea to the
offense of
indecent acts with a child, his statements during the providence
inquiry,
during which he admitted performing a sexual act on the victim in the
presence
of a third party, adequately supported a finding of guilty to the
lesser
included offense of indecent acts with another).
United
States v. Simmons, 63 M.J. 89 (a military judge may not
accept a guilty plea
unless he makes such inquiry of the accused that satisfies him of a
factual
basis for the plea).
2005
United
States v. Mizgala, 61 M.J. 122 (a litigated
speedy trial motion under Article 10, UCMJ, is not waived by a
subsequent unconditional guilty plea).
2004
United States v. Hardeman, 59 MJ 389 (a court shall not accept a
plea of guilty where an accused sets up matter inconsistent with the
plea, or if it appears that he has entered the plea of guilty
improvidently; nor shall a court 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).
United States v. Hansen, 59 MJ 410 (an accused entering a guilty
plea waives several of his constitutional rights; these constitutional
rights include the right to trial by jury, the right to confront one’s
accusers, and the privilege against compulsory self-incrimination; these rights are fundamental to the military
justice system; as a result, if there is to be a waiver of
these rights, it must be an intentional relinquishment or abandonment
of a known right or privilege).
United States v. Irvin, 60 MJ 23 (appellant was charged under
clauses 1 and 2 of Article 134 with engaging in conduct prejudicial to
good order and discipline or of a nature to bring discredit to the
armed forces by wrongfully and knowingly possessing visual depictions
of minors engaging in sexually explicit conduct; the criminal nature of
the conduct did not derive from a clause 3, Article 134 charge
specifying a violation of the CPPA of 1996 (CPPA); thus, the providence
of his guilty plea must be assessed against the elements of that
offense, not the elements of the CPPA offense at issue in O’Connor
and Free Speech Coalition).
United States v. Mason, 60 MJ 15 (under our decision in O’Connor,
a provident guilty plea to a violation of the CPPA must reflect that
the accused violated those portions of the statute not affected by the
Supreme Court’s ruling in Free Speech Coalition; the absence of
any focus on or discussion concerning those aspects of the statute in
the present record coupled with the use of the unconstitutionally
overbroad definition during appellant’s plea colloquy render this case
indistinguishable from O’Connor; accordingly, we cannot view
appellant’s plea of guilty to violating the CPPA, and thus to violating
clause 3 of Article 134, as provident).
United States v. Pinero, 60 MJ 31 (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 for five hours at some point during
this period of unauthorized absence before initiating a second period
of unauthorized absence; 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; 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).
(during a providence inquiry
into a charged unauthorized absence period, having found that appellant
was under military control and custody and not absent on a date during
that charged absence, the military judge must 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).
United States v. Barton, 60 MJ 62 (a guilty plea is
an admission of all the elements of a formal criminal charge; before
accepting a guilty plea, a military judge must explain the elements of
the offense and ensure that a factual basis for each element exists; it
is not enough to elicit legal conclusions; the military judge must
elicit facts to support the plea of guilty; this factual predicate is
sufficiently established if the factual circumstances as revealed by
the accused himself objectively support that plea; as a result, the
issue must be analyzed in terms of providence of his plea not
sufficiency of the evidence).
(although we may have doubts
that a methodology of cross-reference will work generally in a Care
inquiry, 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 the offense 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 an element, property of a
value more than $100; 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;
the record here says enough to objectively support an admission to each
element of the offense).
(we cannot lose sight that
this is a guilty plea case; a guilty plea case is less likely to have
developed facts; with the benefit of appellate hindsight, one might
well identify questions unasked or be tempted to look for the factual
development that only a contested trial might contain; at the same
time, we cannot lose sight that in a guilty plea case the Care
inquiry is a substitute for a contested trial; 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).
United States v. Negron, 60 MJ 136 (in
the providence inquiry into the obscene mail offense in this case, the
military judge erroneously used the definition of “indecent” from the
offense of indecent acts with another rather than from the offense of
indecent language; this fundamental definitional error rendered the
plea improvident; moreover, the military judge’s questioning of
appellant using primarily leading questions about this offense rendered
the providence inquiry fatally deficient).
2003
United States v. Perron, 58 MJ 78 (the decision to plead guilty is a serious and consequential decision; a plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; a guilty plea is also a sobering decision because it involves the waiver of a number of individual constitutional rights, including the privilege against compulsory self-incrimination, the right to a trial by jury, and the Sixth Amendment right to confront one’s accusers).
(because of the consequences resulting from guilty pleas, it is constitutionally necessary to ensure that such pleas are entered into voluntarily and knowingly, with sufficient awareness of the relevant circumstances and likely consequences; where a plea is not knowing and voluntary, it has been obtained in violation of due process and is therefore void).
(the military justice system imposes even stricter standards on military judges with regards to guilty pleas than those imposed on federal civilian judges; Article 45(a), UCMJ, requires military judges, unlike civilian judges, to resolve inconsistencies and defenses during the providence inquiry or the guilty plea must be rejected; this Court has imposed an affirmative duty on military judges, during providence inquiries, to conduct a detailed inquiry into the offenses charged, the accused’s understanding of the elements of each offense, the accused’s conduct, and the accused’s willingness to plead guilty; that general mandate to insure that pleas are voluntary is now contained in R.C.M. 910(d)).
United States v. Redlinski, 58 M.J. 117 (for this Court to find a plea of guilty to be knowing and voluntary, the record of trial must reflect that the elements of each offense charged have been explained to the accused by the military judge; if the military judge fails to do so, he commits reversible error, unless it is clear from the entire record that the accused knew the elements, admitted them freely, and pleaded guilty because he was guilty; rather than focusing on a technical listing of the elements of an offense, this Court looks at the context of the entire record to determine whether an accused is aware of the elements, either explicitly or inferentially.
(for a plea to an attempt offense to be provident, the military judge must advise the accused of the elements of attempt as well as the elements of the intended offense, either explicitly or inferentially).
(unlike some simple military offenses, attempt is a more complex, inchoate offense that includes two specific elements designed to distinguish it from mere preparation; the distinction between preparation and attempt has proven difficult for courts and scholars alike; in a guilty plea case, although the accused is not entitled to receive a hornbook review of the distinction, the record must objectively reflect that the accused understood that his conduct, in order to be criminal, needed to go beyond preparatory steps and be a direct movement toward the commission of the intended offense).
(where the record does not evidence, either explicitly or inferentially, that the accused understood that his conduct, in order to be criminal, needed to go beyond preparatory steps and be a direct movement toward the commission of the intended offense or that he had sufficient knowledge of any of the four elements of attempt, the accused's plea of guilty will be found to be improvident).
United States v. Fisher, 58 MJ 300 (under Article 45, UCMJ, if an accused appears to enter a plea improvidently or through lack of understanding of its meaning or effect, the plea shall not be accepted by the court).
(it is not necessary that a statement be false in every detail in order for a guilty plea to false swearing to be provident).
(failure to explain each and every element of the charged offense to the accused in a clear and precise manner prior to accepting the plea is not reversible error if it is clear from the entire record that the accused knew the elements, admitted them freely, and pleaded guilty because he was guilty).
(the difficulty with the plea inquiry into this false swearing specification was the military judge’s reference to false statements by omission; here, despite the reference to false by omission, there were also multiple literal falsehoods; it is clear from the entire record that the appellant knew that he was accused of making a false statement, referenced the falsity of the statement in his stipulation of fact and in response to the military judge’s questions, and voluntarily pleaded guilty because he was guilty).
United States v. O'Connor, 58 MJ 450 (for a guilty plea to be provident, the accused must be convinced of, and be able to describe, all of the facts necessary to establish guilt; 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).
(in order to plead guilty to knowingly possessing or receiving child pornography in violation of the Child Pornography Prevention Act under Article 134, UCMJ, it is no longer enough to knowingly possess or receive visual depictions that "appear to be" of a minor engaging in sexually explicit conduct; in the wake of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the relevant provisions the CCPA require that the visual depiction be of an actual minor engaging in sexually explicit conduct; the "actual" character of the visual depictions is now a factual predicate to any plea of guilty under the CPPA).
(in this case, where it is unclear from the providence inquiry and the record whether appellant was pleading guilty to possession and receipt of virtual or actual child pornography, his pleas of guilty to violating clause 3 of Art. 134 by possessing and receiving child pornography in violation of the CPPA cannot be sustained as provident; an inquiry into the "actual" versus "virtual" distinction now has critical significance; in the absence of any discussion or focus in the record regarding the "actual" character of the images, appellant's plea of guilty to violations of the CPPA was improvident).
(an improvident plea to a CPPA-based clause 3 offense under Article 134 may be upheld as a provident plea to a lesser-included offense under clause 2 of Article 134).
(in
the wake of Free Speech Coalition, the "virtual" or "actual"
status of the images at issue has constitutional significance; that
constitutional significance may, in turn, bear on the nature of the
prohibited conduct, i.e., its service-discrediting character;
appellant's plea inquiry was focused on the question of whether or not
his conduct violated the CPPA, not the question of whether or not,
under the circumstances, his conduct was of a nature to bring discredit
upon the armed forces; as such, there was no specific discussion with
appellant concerning the service-discrediting character of his conduct,
much less any constitutional implications his conduct may or may not
have had; in the absence of any conscious discussion regarding those
issues, the record here does not demonstrate that appellant clearly
understood the nature of the prohibited conduct; accordingly, this
Court cannot view appellant's plea as provident to the lesser-included
offense of service-discrediting conduct under clause 2 of Article 134).
2002
United States v. Bullman, 56 MJ 377 (in conducting the required inquiry into a proffered guilty plea, the military judge must: (1) inform the accused of the nature of the offense to which the guilty plea is offered; (2) question an accused about what he did or did not do, and what he intended (where this is pertinent); (3) make such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea; (4) ensure that the factual circumstances as revealed by the accused himself objectively support that plea of guilty; (5) not elicit only legal conclusions, but must elicit facts from which the military judge can determine the factual basis for the plea).
(a mere possibility of a defense does not render a plea of guilty improvident; on appeal, a guilty plea should be overturned only if the record fails to objectively support the plea or there is evidence in substantial conflict with the pleas of guilty).
(in deciding whether a plea is rendered improvident by statements inconsistent with the plea, the sole question is whether the statement was inconsistent, not whether it was credible or plausible).
(appellant’s plea to dishonorably failing to pay a debt was improvident where: (1) the military judge did not define the term "dishonorable" during his inquiry into the plea; (2) the military judge did not mention the term as it applied to the debt, nor did he tell appellant whether the term as applied to the bad checks had the same meaning when applied to the debt; (3) the military judge did not elicit a sufficient factual predicate for the guilty plea to dishonorably failing to pay the AAFES debt; (4) there is nothing in the plea inquiry showing why appellant believed that his conduct regarding the AAFES debt was characterized by deceit, evasion, false promises, or other distinctly culpable circumstances indicating a deliberate nonpayment or grossly indifferent attitude; (5) the military judge elicited only legal conclusions, in which appellant repeated verbatim the conclusions in the written stipulation of fact - a rote recitation of the elements of the offense was inadequate; and (6) appellant made statements and stipulated to facts inconsistent with dishonorable conduct).
United States v. Phanphil, 57 MJ 6 (a guilty plea will not be overturned on appeal unless there is a substantial basis in law and fact for questioning the guilty plea).
United States v. Angone, 57 MJ 70 (there was no substantial basis to overturn appellant’s guilty plea for an innocent possession defense where: (1) appellant does not claim, nor do the facts of this case suggest, that the marijuana cigarette in question was planted in his medicine cabinet; (2) appellant admitted that he knowingly took possession of a contraband drug which he discovered unattended; (3) even assuming such possession be treated as inadvertent, appellant also admitted that he did not deliver the half-inch long marijuana cigarette to his command escorts, nor did he immediately destroy this contraband item; and (4) appellant did not maintain temporary possession of this contraband under the reasonable belief that he would be exposing himself to immediate physical danger if he did not return it to its prior possessor).
(appellant’s asserted intent to discard contraband in the future did not invalidate his guilty plea; his intent at the time of the seizure was to conceal the marijuana cigarette from his command escort to avoid being prosecuted for the unlawful possession of drugs).
United States v. Jordan, 57 MJ 236 (in order to establish an adequate factual predicate for a guilty plea, the military judge must elicit, on the record, factual circumstances as revealed by the accused himself that objectively support that plea; it is not enough to elicit legal conclusions).
(a providence inquiry that includes conclusions of law alone does not satisfy the requirements of Article 45 and RCM 910(e)).
(the factual circumstances as revealed by appellant do not objectively support the third element of unlawful entry (prejudice to good order and discipline, or service discrediting) where: (1) the colloquy between appellant and the military judge reveals that appellant simply responded “Yes, sir” to the several questions put to him calling for legal conclusions as to whether his conduct was prejudicial to good order and discipline or service discrediting; (2) appellant’s statements that the owner appeared neither upset nor agitated and that she declined to press charges when invited to do so suggest that the service’s reputation may not have been impugned at all; and (3) this is not a case where considerations beyond the record of trial, i.e., a stipulation of fact, are applicable).
United States v. Sims, 57 MJ 419 (a 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).
(where
a sexual touching was committed in a private bedroom, with the door
closed but unlocked, and where neither party had disrobed, appellant’s
conclusory stipulation was inadequate to establish a factual predicate
for “open and notorious” sexual conduct; there was a substantial basis
for rejecting the plea as improvident, because appellant’s responses
and the stipulation of fact state only the conclusion that it was
reasonably likely under these circumstances that appellant’s act of
touching would have been seen by others, but they do not provide
the factual basis for that conclusion).
2001
United States v. Roeseler, 55 MJ 286 (guilty pleas in the military justice system must be both voluntary and intelligent, and the military judge is tasked with ensuring that the military accused understands the nature of the offenses to which guilty pleas are accepted; however, some leeway must be afforded the trial judge concerning the exercise of his judicial responsibility to explain a criminal offense to an accused servicemember).
(the military judge’s explanations of a charged conspiracy and a charged attempted conspiracy, taken together, were sufficient to inform appellant that conspiracy, unlike attempted conspiracy, required that the alleged conspirators actually share the same criminal intent or mental state).
United States v. Grijalva, 55 MJ 223 (if a guilty plea is rejected, any statement made by an accused during the plea inquiry is inadmissible; however, a guilty plea to a lesser-included offense may be used to establish facts and elements common to both the greater and lesser offense within the same specification, and a court-martial may consider an appellant’s admissions made in connection with his guilty pleas in a state court proceeding).
(if the military judge errs by considering statements made by an accused that were outside the waiver of the right against self-incrimination that follows from a provident plea of guilty, the error would be of constitutional dimension, and the findings could not be affirmed unless the reviewing court is satisfied that the error was harmless beyond a reasonable doubt).
(military judge did not err by considering appellant’s admissions concerning elements of a lesser-included offense in determining appellant’s guilt of the greater offense; however, military judge did err by considering appellant’s admissions which pertained to the element of premeditation, an element of the greater offense to which the guilty plea had been rejected).
United
States v. James, 55 MJ 297 (in a guilty plea context, the
factual circumstances on the record objectively supported appellant’s
guilty plea that actual minors were pictured in violation of 18 USC
§ 2252A; specifically: (1) appellant pleaded guilty to a
violation of the statute; (2) appellant admitted that actual minors
were in the charged pictures; (3) the military judge explained the
statutory requirement that the pictures were of minors; (4) the
photographic exhibits supported appellant’s admissions; (5) appellant
admitted he went to web sites looking for pictures of “pre-teens; and
(6) appellant visited chat rooms where pictures of minors were
regularly requested and provided).
2000
United States v. Heryford, 52 MJ 265 (ordinarily, an unconditional guilty plea waives a multiplicity issue).
United States v. Ramsey, 52 MJ 322 (where specifications alleging solicitation to distribute LSD and conspiracy to distribute LSD are not facially duplicative, any issue of multiplicity was waived by failure to make a timely motion to dismiss and an unconditional guilty plea).
United States v. Fricke, 53 MJ 149 (appellant’s plea of guilty to premeditated murder did not violate Article 45(b), UCMJ, where: (1) convening authority had agreed in pretrial agreement to withdraw capital referral if the plea was accepted; (2) there was no authority requiring that paperwork re-referring the case as noncapital be completed; (3) the military judge acknowledged the noncapital referral on the record prior to accepting the plea; and (4) the failure to reduce the re-referral as noncapital to writing was technical in nature and did not deprive appellant of any essential protections).
United States v. Williams, 53 MJ 293 (when collateral consequences of a court-martial conviction are relied upon as the basis for contesting the providence of a guilty plea, the appellant is entitled to succeed only when the collateral consequences are major and the appellant’s misunderstanding of the consequences (a) results foreseeably and almost inexorably from the language of a pretrial agreement; (b) is induced by the trial judge’s comments during the providence inquiry; or (c) is made readily apparent to the judge, who nonetheless fails to correct that misunderstanding).
(appellant’s pleas were improvident where he pleaded guilty relying on incorrect advice from his attorney on a key part of the pretrial agreement (entitlement to pay), and the military judge shared that misunderstanding and failed to correct it).
United States v.
Hardcastle, 53 MJ 299 (appellant’s pleas were improvident where
he pleaded guilty relying on an incorrect belief that, under his
pretrial agreement as expressly interpreted by the military judge, he
would continue to receive $400 pay per month to go to his dependents
when in fact appellant would receive no pay while being held past the
expiration of his enlistment to serve his adjudged confinement).
1999
United States v. Smith, 50 MJ 380 (where accused admits in providence inquiry that acts went beyond mere preparation and points to a particular action that satisfies himself on this point, it is neither legally nor logically well-founded to say that actions that may be ambiguous on this point fall short of the line “as a matter of law” so as to be substantially inconsistent with guilty plea).
United States v. Olinger, 50 MJ 365 (appellant’s brief speculative comment that he felt his wife’s depression might kill her if he deployed did not show a substantial basis in law and fact for rejecting guilty plea on the basis of inconsistent matter of the defense of duress).
United States v. Bickley, 50 MJ 93 (the factual predicate for a plea is adequate if the accused himself reveals facts which objectively support the plea).
(guilty plea will not be rejected unless there is a substantial basis in fact and law for questioning the plea; mere possibility of a defense will not support overturning a guilty plea).
(accused’s mention during sentencing that he thought he read a training manual which gave him until 0900 to turn a personal weapon into arms room raised only a mere possibility of a mistake of law which was insufficient to overturn guilty plea to violating lawful general regulation).
United States v. Russell, 50 MJ 99 (appellant’s guilty plea admission that stolen items were military property used by Air Force, even though items were never actually turned over to the government, provided sufficient basis in record to support guilty plea to larceny of military property).
United States v. Thomasson, 50 MJ 179 (where mere flight from a law enforcement officer did not constitute the offense of resisting apprehension prior to the National Defense Authorization Act for Fiscal Year 1996, Pub.L. No. 104-106, § 1112, 110 Stat. 461, appellant’s guilty plea to resisting apprehension based on no act of resistance, but only on flight was improvident).
United States v. Mitchell, 50 MJ 79 (where appellant does not receive the benefit of a bargained-for pretrial agreement, his pleas will be treated as improvident).
United States v. Falk, 50 MJ 385 (appellate courts will not speculate as to the existence of facts which might invalidate a guilty plea, but must consider the entire record in a case in determining the providence of an appellant’s pleas).
(appellant’s guilty plea must be set aside as improvident where: (1) the military judge’s explanation of the elements of the offense corresponded with the specification as amended, but not with the statute in effect at time of the offense; (2) the statute under which appellant was convicted did not exist at the time of his offense; and (3) the stipulated facts were insufficient to support a conviction under the statute existing at the time of the offense).
United States v. Sanchez, 51 MJ 165 (plea to misprision of a serious offense was provident where appellant took affirmative steps to conceal the identity of the offender after commission of the offense; both affirmative acts of concealing the identity of a perpetrator and concealing the offense itself are equally criminally culpable).
(appellant’s unconditional guilty plea waived claim that conviction for failing to report serious offense violated appellant’s Fifth Amendment right against self-incrimination).
United States v. Grimm, 51 MJ 254 (where appellant admitted that disassembled 9 mm Beretta pistol was a dangerous weapon, he conceded factual issues relating to his guilt, and there is no substantial basis in law to overturn his plea).
United States v. Gray, 51 MJ 1 (where plea agreement in state court did not prohibit use of appellant’s statements in subsequent court-martial for different offenses, that guilty plea and accompanying statements in state court were admissible in court-martial to prove the elements of other crimes).United States v. Nelson,
51 MJ 399 (appellant failed to preserve issue of whether any
statements made during his providence inquiry could be considered as to
unrelated charges where he did not plead guilty and, thus: (1)
there is no record from which to determine whether the government would
have introduced the evidence; (2) there is no record of what the
evidence would have been; and, (3), assuming a violation of appellant’s
rights, there is no record of how it would have impacted on appellant).
United States v. Knight, 52 MJ 47 (guilty plea was provident and it was not necessary to determine whether Article 93, UCMJ, has an “officiality” requirement where appellant pleaded guilty and admitted that his conduct violated the maltreatment prohibition, admitted that he used a phony credit card known to be derived from confidential information in appellant’s official control as a result of military duties, and knew that his conduct would cause the victim command embarrassment).
(even accepting the argument that Article 93, UCMJ, requires a supervisory relationship to support a charge of maltreatment, appellant’s plea is provident in that appellant admitted the alleged victim was subject to his orders, that appellant was the noncommissioned officer in charge, that the victim was one of appellant’s section chiefs, and that appellant exploited confidential personnel information available to appellant because of his command position over the victim).
United States v. Robbins, 52 MJ 159 (guilty plea did not waive claim that offense was improperly assimilated into Article 134 through the Assimilative Crimes Act, 18 USC § 13, because the issue relates to subject-matter jurisdiction; if the offense was preempted and not properly assimilated, it is not cognizable by court-martial).