United States v. Private E1 ERICA A. ANDERSON ( 2013 )


Menu:
  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    GLANVILLE*, YOB, and KRAUSS
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Private E1 ERICA A. ANDERSON
    United States Army, Appellant
    ARMY 20120503
    Headquarters, XVIII Airborne Corps and Fort Bragg
    Tara A. Osborn, Military Judge (arraignment)
    James E. Hardin, Military Judge (trial)
    Colonel Paul S. Wilson, Staff Judge Advocate
    For Appellant: Major Jacob D. Bashore, JA; Captain Aaron R. Inkenbrandt, JA (on
    reply brief); Major Jacob D. Bashore, JA; Captain Kristin B. McGrory, JA; Captain
    Aaron R. Inkenbrandt, JA (on brief).
    For Appellee: Lieutenant Colonel James L. Varley, JA; Major Katherine S. Gowel,
    JA (on brief).
    27 September 2013
    ----------------------------------
    SUMMARY DISPOSITION
    ----------------------------------
    KRAUSS, Judge:
    A military judge sitting as a special court-martial convicted appellant,
    pursuant to her pleas, of three specifications of failing to go to her appointed place
    of duty; two specifications of going from her appointed place of duty; one
    specification of willfully disobeying a superior commissioned officer; one
    specification of disobeying a noncommissioned officer ; two specifications of
    disrespecting a noncommissioned officer; two specifications of disrespecting a
    superior noncommissioned officer; one specification of resisting apprehension; one
    specification of wrongful use of marijuana; and one specification of breach of the
    peace in violation of Articles 86, 90, 91, 95, 112a and 116, Uniform Code of
    Military Justice, 
    10 U.S.C. §§ 886
    , 890, 891, 895, 912a, 916 (2006) [hereinafter
    UCMJ]. The convening authority approved the adjudged sentence of a bad-conduct
    *Chief Judge GLANVILLE took final action in this case while on active duty.
    ANDERSON — ARMY 20120503
    discharge and confinement for forty-five days. Appellant was credited with thirty-
    two days of pretrial confinement against her sentence to confinement.
    This case is before the court for review under Article 66, UCMJ. Appellant
    assigns three errors, asserting that her pleas to one specification of disrespect to a
    noncommissioned officer and to resisting apprehension were improvident, that the
    ultimate offense doctrine requires dismissal of appellant’s conviction for willfully
    disobeying a superior commissioned officer, and that relief for excessive post-trial
    delay is warranted. Appellant also raises matters pursuant to United States v.
    Grostefon, 
    12 M.J. 431
     (C.M.A. 1982).
    We agree with appellant, in part, as to her first assignment of error and as to
    her second assignment of error, and additionally, we find a substantial basis in law
    and fact to reject her pleas to the remaining specifications of disrespect. We
    disagree with appellant’s remaining assertion and find that, despite setting aside the
    findings of guilty described above, reassessment and affirmation of the approved
    sentence is warranted.
    In relation to Specification 2 of Charge III, the providence inquiry in this case
    failed to establish that appellant’s written statements on a counseling form,
    essentially disputing the premise of the counseling session and expressing reasons
    for rejection of its import, constituted disrespect as contemplated by Article 91 ,
    UCMJ. See Manual for Courts-Martial, United States (2008 ed.), pt. IV, ¶¶ 13.c(3),
    15.c(5). On a more fundamental level, however, we find the military judge’s failure
    to properly define disrespect and elicit admission of facts sufficient to establish
    disrespect under Article 91, UCMJ, creates a substantial basis in law and f act to
    reject appellant’s pleas to each specification and charge of disrespect in the case.
    See generally United States v. Aleman, 
    62 M.J. 281
    , 283 (C.A.A.F. 2006) (quoting
    United States v. Harris, 
    61 M.J. 391
    , 398 (C.A.A.F. 2005)).
    A judge must properly identify, explain , and define the elements of the
    offense to which an accused pleads guilty as an essential step toward ensuring a
    provident plea under Article 45, UCMJ. See United States v. Redlinski, 
    58 M.J. 117
    ,
    119 (C.A.A.F. 2003); United States v. Rice, 
    71 M.J. 719
    , 724-25 (Army Ct. Crim.
    App. 2012). When an accused soldier liberates the government of its burden to
    prove her guilt beyond any reasonable doubt by pleading guilty, the military judge
    must ensure completion of a record that objectively establishes a knowi ng,
    intelligent, and voluntary plea within the confines of an accused’s plea itself. See
    United States v. Pretlow, 
    13 M.J. 85
    , 88-89 (C.M.A. 1982). It matters not that the
    record demonstrates the likely success of a government prosecution or the apparent
    opportunity for the appellant to have been provident at the time of the plea. See
    United States v. Schell, 
    72 M.J. 339
    , 346 (C.A.A.F. 2013); Rice, 71 M.J. at 727.
    2
    ANDERSON — ARMY 20120503
    In the case at hand, the military judge never properly defined disrespect,
    repeatedly confused disrespect and disobedience when discussing the offenses with
    the appellant, and never satisfactorily secured from the appellant admissions
    sufficient to establish her understanding of the offense and recognition of her guilt
    under the law. The stipulation of fact also fails to provide facts sufficient to remedy
    this deficiency. Therefore, we reject appellant’s pleas of guilty to Specifications 1
    and 2 of Charge III and to Additional Charge III and its Specifications. See United
    States v. Medina, 
    66 M.J. 21
    , 26 (C.A.A.F. 2008) (citing United States v. Care, 
    18 U.S.C.M.A. 535
    , 538-39, 
    40 C.M.R. 247
    , 250-51 (1969)); United States v.
    Inabinette, 
    66 M.J. 320
    , 321 (C.A.A.F. 2008).
    We also agree with appellant that pursuant to the ultimate offense doctrine,
    there is a substantial basis in law and fact to reject appellant’s plea to Specification
    1 of Charge II. Neither the stipulation of fact nor the providence inquiry developed
    or established sufficient facts to support a plea of guilty to a violati on of Article 90,
    UCMJ, but rather merely establish the offense of breaking restriction in violation of
    Article 134, UCMJ. See United States v. Traxler, 
    39 M.J. 476
     (C.M.A. 1994);
    United States v. Peaches, 
    25 M.J. 364
     (C.M.A. 1987); United States v. Bratcher, 
    18 U.S.C.M.A. 12
    , 
    539 C.M.R. 125
     (1969); United States v. Loos, 
    4 U.S.C.M.A. 478
    ,
    480-81, 
    16 C.M.R. 52
    , 54-55 (1954). In addition, the offense of breaking restriction
    can no longer be considered a lesser-included offense of disobeying a superior
    commissioned officer so this court is not free to substitute the former for the latter.
    See generally United States v. Jones, 
    68 M.J. 465
    , 472 (C.A.A.F. 2010). The proper
    remedy is dismissal of the charge under the circumstances. See 
    id. at 472-73
    . See,
    e.g., United States v. Hargrove, 
    51 M.J. 408
    , 409-10 (C.A.A.F. 1999); Peaches, 
    25 M.J. 364
    . We therefore find a substantial basis in law and fact to reject appellant’s
    plea of guilty to Specification 1 of Charge II. See Inabinette, 
    66 M.J. 320
    .
    After considering the entire record, the parties’ briefs, and those matters
    personally raised by appellant pursuant to Grostefon, we set aside the findings of
    guilty as to Specification 1 of Charge II, Specifications 1 and 2 of Charge III, and
    Additional Charge III and its Specifications and dismiss the same. The remaining
    findings of guilty are AFFIRMED. Reassessing the sentence on the basis of the
    error noted, the entire record, and in accordance with the principles of United States
    v. Sales, 
    22 M.J. 305
     (C.M.A. 1986) and United States v. Moffeit, 
    63 M.J. 40
    (C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring
    opinion in Moffeit, the sentence is AFFIRMED.
    Chief Judge GLANVILLE and Senior Judge YOB concur.
    3
    ANDERSON — ARMY 20120503
    FOR THE COURT:
    ANTHONY
    ANTHONY         O. POTTINGER
    O. POTTINGER
    Chief
    Chierk of Courtof Court
    Deputy Clerk
    4
    

Document Info

Docket Number: ARMY 20120503

Filed Date: 9/27/2013

Precedential Status: Non-Precedential

Modified Date: 4/17/2021