United States v. Specialist TREY A. SANDERS ( 2017 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, SCHASBERGER, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist TREY A. SANDERS
United States Army, Appellant
ARMY 20160716
Headquarters, United States Army Alaska
Kenneth W. Shahan, Military Judge
Colonel Roseanne M. Bennett, Staff Judge Advocate
For Appellant: Captain Cody Cheek, JA; Major Brian J. Sullivan, JA.
For Appellee: Lieutenant Colonel Eric K. Stafford.
31 August 2017
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SUMMARY DISPOSITION
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SCHASBERGER, Judge:
A military judge sitting as a general court martial convicted appellant,
pursuant to his pleas, of two specifications of aggravated assault with a dangerous
weapon, one specification of assault consummated by battery, and one specification
of communicating a threat in violation of Articles 128 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 928 and 934 (2012) [hereinafter UCMJ]. The military
judge sentenced appellant to a bad-conduct discharge, confinement for seven months
and reduction to the grade of E-1. The convening authority approved the adjudged
sentence.
Appellant’s case is before this court for review under Article 66, UCMJ.
Appellant personally raises three matters pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982); one of which merits discussion and relief.
SANDERS—ARMY 20160716
BACKGROUND
Appellant was charged with and pleaded guilty to the Specification of Charge
II, in violation of Article 134, UCMJ, as follows:
[Appellant], U.S. Army, did, at or near Anchorage, Alaska
on or about 4 March 2016, wrongfully communicate to
Miss [MSS] a threat to kill her, by saying “I’ll kill you,”
or words to that effect, such conduct being to the
prejudice of good order and discipline in the armed forces
and 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 Article 134, UCMJ, in the disjunctive, despite the fact the
clauses were charged in the conjunctive. The following colloquy occurred between
the military judge and appellant:
MJ: And I defined to you earlier the definitions of
prejudicial to good order and discipline or of a nature to
bring discredit upon the armed forces. Do you believe
that your conduct was one of these two things?
ACC: Yes, Sir.
MJ: Which one? You can talk to your lawyer, if you want
to.
ACC: Sir, it’s service discrediting.
MJ: Okay. So the definition of service discrediting is
conduct which tends to harm the reputation of the service
or lower it in public esteem. So in other words, do you
believe that if the public knew- -the members of the
general public knew that you were doing this, that that
would tend to lower the- -their opinion of the Army?
ACC: Yes, sir.
MJ: Why is that?
ACC: Well, we’re supposed to carry ourselves in a certain
manner, sir, discipline- -supposed to be trustworthy.
MJ: So Soldiers threatening to kill their wives may not
look good to members of the public?
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SANDERS—ARMY 20160716
ACC: Yes, sir.
There was no additional substantive inquiry between the military judge and appellant
regarding the terminal element of Article 134. The stipulation of fact was silent as
to either effect of discipline on the unit or reputation of the service.
LAW AND 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. Id. at 322; UCMJ art. 45; Rule for Courts-Martial
[hereinafter R.C.M.] 910(e).
The accused must admit every element of the offense to which he pleads
guilty. See R.C.M. 910(e) discussion. A providence inquiry must set forth, on the
record, the factual basis that establish that the acts of the accused constituted the
offense to which he is pleading guilty. United States v. Care, 18 U.S.C.M.A. 535,
541, 40 C.M.R. 247, 253 (1969). Where appellant only admits to the elements, and
the totality of the inquiry fails to clarify the factual basis to support appellant’s
actions, the plea is improvident. See United States v. Jordan, 57 M.J. 236, 238
(C.A.A.F. 2002).
In this case, the providence inquiry does not adequately establish how
appellant's conduct caused a “direct and palpable effect on good order and
discipline.” See United States v. Erickson, 61 M.J. 230, 232 (C.A.A.F. 2005).
Additionally, the stipulation of fact does not provide an additional factual basis upon
which to satisfy this requirement. There is however, a factual basis to support that
appellant’s conduct is service discrediting. See United States v. Phillips, 70 M.J.
161, 166 (C.A.A.F. 2011). Consequently, on the record before us, we will dismiss
the language “to the prejudice of good order and discipline in the armed forces and”
from the Specification.
CONCLUSION
The court affirms only so much of the finding of guilty of The Specification
of Charge II as finds that:
Did, at or near Anchorage, Alaska on or about 4 March
2016, wrongfully communicate to Miss MSS a threat to
kill her, by saying, “I’ll kill you,” or words to that effect,
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SANDERS—ARMY 20160716
such conduct being of a nature to bring discredit upon the
armed forces.
The remaining findings of guilty are AFFIRMED.
We are able to reassess the sentence on the basis of the error noted, the entire
record, and in accordance with the principals of United States v. Winckelmann, 73
M.J. 11, 15-16 (C.A.A.F. 2013). We are confident that based on the entire record
and appellant’s course of conduct, the military judge would have imposed a sentence
of at least that which was adjudged, and accordingly we AFFIRM the sentence.
Senior Judge TOZZI and Judge BURTON concur.
FOR THE COURT:
FOR THE COURT:
JOHN P. TAITT
JOHN
Chief P. TAITT
Deputy Clerk of Court
Chief Deputy Clerk of Court
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