United States v. Sergeant MARTIN R. DURAN, JR. ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, GALLAGHER, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant MARTIN R. DURAN, JR.
United States Army, Appellant
ARMY 20120049
Headquarters, Fort Riley
Jeffery R. Nance, Military Judge
Lieutenant Colonel Daniel G. Brookhart, Staff Judge Advocate
For Appellant: Major Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Captain T. Campbell Warner, JA (on brief).
8 March 2013
--------------------------------
SUMMARY DISPOSITION
--------------------------------
Per Curiam:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification of failing to report to his appointed place
of duty, one specification of failing to obey a lawful order, one specification of
wrongfully distributing a controlled substance, and three specifications of
wrongfully using a controlled substance, in violation of Articles 86, 92, and 112a,
Uniform Code of Military Justice, 10 U.S.C. §§ 886, 892, 912a (2006) [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge,
confinement for thirty days, and reduction to the grade of E-1. The convening
authority approved the adjudged sentence.
In a footnote to his submission, appellant argues this court should disapprove
the finding of guilty of the Specification of Additional Charge III and Additional
Charge III because the military judge failed to explain the elements of the charged
offense, a violation of Article 92, UCMJ. Instead, the military judge listed the
elements of Article 91, UCMJ, disobeying an order from a noncommissioned officer.
The government, in a footnote to its submission to this court, concedes the military
DURAN—ARMY 20120049
judge, during the providence inquiry, listed the elements for Article 91, UCMJ, but
argues such an error does not require reversal of Additional Charge III and its
Specification.
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. United States v. Care, 18
U.S.C.M.A. 535, 541, 40 C.M.R. 247 (1969). 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.”
United States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003) (quoting United States
v. Jones, 34 M.J. 270, 272 (C.M.A. 1992)). 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. Jones, 34 M.J. at 272; United States v. Pretlow, 13 M.J. 85, 88
(C.M.A.1982); United States v. Kilgore, 21 U.S.C.M.A. 35, 44 C.M.R. 89 (1971). In
considering the adequacy of appellant’s guilty plea, we are charged with reviewing
the entire record and “will not overturn the acceptance of a guilty plea unless there
is a ‘substantial basis in law and fact for’ doing so.” United States v. Barton, 60
M.J. 62, 64 (C.A.A.F. 2004) (quoting United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991).
In reviewing the entire record, it is clear the military judge explained the
elements of an Article 92, UCMJ, offense. In explaining the elements of an Article
91, UCMJ, violation, the military judge merely added additional elements to
appellant’s charged violation of Article 92, UCMJ. This eventuality is expected
because failure to obey a lawful order is a lesser-included offense of disobeying a
noncommissioned officer. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010);
United States v. Rauscher, 71 M.J. 225 (C.A.A.F. 2012); United States v. Alston, 69
M.J. 214 (C.A.A.F. 2010). Consequently, it is clear appellant understood the
elements of the charged offense and the military judge ensured an adequate factual
predicate was established to support appellant’s plea of guilty to Additional Charge
III and its specification.
Other than alleging the military judge failed to correctly advise appellant of
an Article 92, UCMJ, violation, a proposition we have rejected, appellant does not
otherwise allege error. We ultimately find there is not a substantial basis in law and
fact to question appellant’s plea of guilty to an Article 92, UCMJ, violation in
Additional Charge III and its specification. See Prater, 32 M.J. at 436.
CONCLUSION
On consideration of the entire record and the submissions of the parties, we
hold the findings of guilty and the sentence, as approved by the convening authority
2
DURAN—ARMY 20120049
are correct in law and fact. Accordingly, the findings of guilty and sentence are
AFFIRMED.
FOR THE COURT:
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM
H. SQUIRES, JR.
Clerk of Court
Clerk of Court
3