United States v. Specialist JASON K. SHANLEY ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
YOB, LIND and KRAUSS
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist JASON K. SHANLEY
United States Army, Appellant
ARMY 20120199
Headquarters, Fort Riley
Jeffery R. Nance, Military Judge
Lieutenant Colonel Daniel G. Brookhart, Staff Judge Advocate
For Appellant: Lieutenant Colonel Jonathan K. Potter, JA; Lieutenant Colonel
Imogene M. Jamison, JA; Major Richard E. Gorini, JA; Captain J. Fred Ingram, JA
(on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Elisabeth A. Claus, JA; Major Matthew T. Grady, JA (on brief).
24 December 2013
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SUMMARY DISPOSITION
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YOB, Senior Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of conspiracy to commit larceny;
one specification of conspiracy to wrongfully appropriate a motor vehicle;
four specifications of absence without leave terminated by apprehension;
two specifications of larceny of property under $500 in value; one specification of
wrongful appropriation of a motor vehicle; and one specification of fleeing the scene
of an accident, in violation of Articles 81, 86, 121 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 881, 886, 921, 934 (2006) [hereinafter UCMJ].
The military judge sentenced appellant to a bad-conduct discharge, confinement for
fifteen months, forfeiture of all pay and allowances, and reduction to the grade of
E-1. The convening authority approved the adjudged sentence and credited appellant
with 199 days against the sentence to confinement.
SHANLEY — ARMY 20120199
This case is before the court for review under Article 66, UCMJ. Appellant
asserts three assignments of error. One of these, concerning the adequacy of
appellant’s pleas of guilty to Charge V and its specification, which alleged fleeing
the scene of an accident under Article 134, UCMJ, merits discussion and warrants
relief.
Appellant was the passenger in a motor vehicle he and his co-conspirator—the
driver of the vehicle—had wrongfully appropriated. In the process of trying to elud e
the owner of the vehicle, the driver lost control of the vehicle and it veered off the
road. After this accident occurred, the driver was unable to restart the engine, and
both the driver and appellant fled the scene on foot. Based on this conduct, the
government charged appellant with fleeing the scene of an accident.
The Article 134, UCMJ, offense of fleeing the scene of an accident sets forth
three theories of liability for one who leaves the scene of a vehicle accident without
making his identification known: 1) the accused was the dr iver of the vehicle; 2) the
accused was both a passenger in the vehicle and the superior commissioned or
noncommissioned officer of the driver, or commander of the vehicle, who
wrongfully and unlawfully ordered, caused , or permitted the driver to leave the
scene of the accident; or, 3) the accused was a passenger charged as a principal
under Article 77, UCMJ, who aided, abetted, counseled, commanded, or procured the
commission of the offense of fleeing the scene of the accident by the driver. Manual
for Courts-Martial, United States (2008 ed.), [hereinafter MCM], pt. IV, ¶¶ 82.b(1),
82.b(2), 82.c(3). The record does not establish a provident plea under any of these
theories of liability. The government concedes the findings of guilty of fleeing the
scene of an accident under Article 134, UCMJ , must be dismissed.
We do not find an adequate basis in the record to find appellant guilty of a
lesser-included offense under the general Article 134, UCMJ. Therefore , we find a
substantial basis in law and fact to question appellant’s pleas to Charge V and its
specification. See United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008).
CONCLUSION
The findings of guilty of Charge V and its specification are set aside and
dismissed. The remaining findings of guilty are AFFIRMED. Reassessing the
sentence on the basis of the error noted, the entire record of trial, and the principles
of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v.
Winckelmann, M.J. , slip. op. at 12-13 (C.A.A.F. 18 Dec. 2013), the court
affirms the adjudged sentence. All rights, privileges, and property , of which
appellant has been deprived by virtue of the finding s of guilty set aside by the
decision, are ordered restored.
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SHANLEY — ARMY 20120199
Judge LIND and Judge KRAUSS concur.
FOR THE COURT:
ANTHONY O. POTTINGER
Chief Deputy Clerk of Court
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