United States v. Private E1 CHASE A. FROSETH ( 2014 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, CAMPANELLA, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 CHASE A. FROSETH
United States Army, Appellant
ARMY 20120851
Headquarters, I Corps
Stefan R. Wolfe, Military Judge (arraignment)
E. Bradford Bales, Military Judge (trial)
Lieutenant Colonel John T. Rothwell, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.
JA; Major Vincent T. Shuler, JA; Captain Patrick A. Crocker, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Sean Fitzgibbon, JA; Captain Jaclyn E. Shea, JA (on brief).
8 April 2014
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a special court -martial convicted appellant,
pursuant to his pleas, of larceny of military property and removal of property to
prevent seizure in violation of Articles 121 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 921, 934 [hereinafter UCMJ]. The military judge sentenced
appellant to a bad-conduct discharge and confinement for four months. Pursuant to
a pretrial agreement, the convening authority approved only so much of the sentence
as provided for a bad-conduct discharge and confinement for 90 days.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one assignment of error. We find this issue without merit, but address an
additional issue which warrants discussion and relief.
FROSETH—ARMY 20120851
BACKGROUND
Appellant was originally charged with and pleaded guilty to a violation of
Article 134, UCMJ, as follows:
[Appellant], U.S. Army, did at or near Joint Base Lewis -
McChord, Washington, between on or about 10 February
2012 and on or about 25 April 2012, with intent to prevent
its seizure, remove a night vision devi ce, property which,
as [appellant] then knew, persons authorized to make
searches and seizures were endeavoring to seize, which
conduct was to the prejudice of good order and discipline
in the armed forces and was of a nature to bring discredit
upon the armed forces.
During the providence inquiry, the military judge described the two clauses of the
terminal element of this Article 134, UCMJ, offense in the conjunctive, as it was
charged. The military judge asked appellant if his conduct satisfied both of these
clauses. Appellant said “yes, your honor.” The military judge asked “[d]o you also
admit that this, in fact, did affect your unit, since they had to go into lock -down and
a search?” Appellant responded “yes, I do your honor.” The providence inquiry was
concluded with no additional inquiry into either clause of the terminal element .
DISCUSSION
“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. Inabinette, 66 M.J. 320, 321–22 (C.A.A.F. 2008)
(citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). We review a
military judge's decision to accept a plea for an abuse of discretion by determining
whether the record as a whole shows a substantial basis in law or fact for
questioning the guilty plea. Inabinette, 66 M.J. at 322.
To be service discrediting, appellant's conduct must “tend to bring the service
into disrepute if it were known.” United States v. Phillips, 70 M.J. 161, 166
(C.A.A.F. 2011). In this case, the military judge did not elicit an adequate factual
basis during the colloquy with appellant to support his plea that his conduct was
service discrediting. Additionally, the stipulation of fact does not provide an
additional factual basis upon which to satisfy the providency requirement for this
clause of the terminal element. See United States v. Care, 18 U.S.C.M.A. 535, 40
C.M.R. 247 (C.M.A.).
The stipulation of fact and the providence inquiry do, however, adequately
establish appellant's conduct caused a “direct and palpable effect on good order and
discipline.” See United States v. Erickson, 61 M.J. 230, 233 (C.A.A.F. 2005).
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FROSETH—ARMY 20120851
Consequently, on the record before us, we will dismiss the language “and was of a
nature to bring discredit upon the armed forces” from the Specification of Charge II.
CONCLUSION
On consideration of the entire record and the noted error, we AFFIRM the
finding of guilty to Charge I and its Specification. W e further affirm only so much
of the finding of guilty of Charge II and its Specification as finds that:
[Appellant], U.S. Army, did at or near Joint Base Lewis -
McChord, Washington, between on or about 10 February
2012 and on or about 25 April 2012, with intent to prevent
its seizure, remove a night vision device, prope rty which,
as [appellant] then knew, persons authorized to make
searches and seizures were endeavoring to seize, which
conduct was to the prejudice of good order and discipline
in the armed forces.
We are able to reassess the sentence on the basis of the error noted, and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
Reassessing the sentence based on the noted error , we AFFIRM the approved
sentence. We find this reassessed sentence is not only purged of any error but is
also appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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