United States v. Edwards ( 2011 )

UNITED STATES, Appellee
v.
Tye L. EDWARDS, Private
U.S. Army, Appellant
No. 10-0481
Crim. App. No. 20090257
United States Court of Appeals for the Armed Forces
Argued December 14, 2010
Decided February 9, 2011
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Kristin McGrory (argued); Colonel Mark
Tellitocci, Lieutenant Colonel Imogene M. Jamison, Lieutenant
Colonel Jonathan Potter, Major Peter Kageleiry, and Captain
Brent A. Goodwin (on brief); Major Timothy W. Thomas and Captain
Todd Lindquist.
For Appellee: Captain Nathan S. Mammen (argued); Colonel
Michael E. Mulligan, Major Christopher B. Burgess, and Captain
Stephen E. Latino (on brief).
Military Judge: Patrick J. Parrish
This opinion is subject to revision before final publication.
United States v. Edwards, No. 10-0481/AR
Judge ERDMANN delivered the opinion of the court.
Private Tye L. Edwards entered guilty pleas to a number of
offenses including escape from confinement in violation of
Article 95, Uniform Code of Military Justice (UCMJ).1 A military
judge sitting as a general court-martial found him guilty of all
charges and sentenced him to eighteen months confinement and a
bad-conduct discharge. In accord with the pretrial agreement,
the convening authority approved four months of the confinement
and the punitive discharge. The United States Army Court of
Criminal Appeals (CCA) summarily affirmed the findings and the
sentence. United States v. Edwards, No. ARMY 20090257 (A. Ct.
Crim. App. Apr. 30, 2010).
Whether an accused is guilty of escape from custody or
escape from confinement logically depends upon the accused’s
status at the time of the escape. Article 95, UCMJ, 10 U.S.C. §
895 (2006). We granted review in this case to determine whether
the military judge erred in accepting Edwards’ guilty plea to
1
In addition to the offense of escape from confinement, Edwards
entered guilty pleas to the following offenses: failure to go
his appointed place of duty; absence without leave (AWOL);
willfully disobeying an officer; assaulting an officer;
willfully disobeying a noncommissioned officer; assaulting a
noncommissioned officer; wrongful use of marijuana; and unlawful
entry, in violation of Articles 86, 90, 91, 112a, and 134, UCMJ.
2
United States v. Edwards, No. 10-0481/AR
escape from confinement.2 We hold that Edwards was in custody
rather than confinement at the time of his escape and his guilty
plea to escape from confinement was therefore not provident.
Background
As a result of a series of misconduct incidents, Edwards
was brought to meet with his company commander. His commander
ordered him to surrender his military identification card to
restrict his freedom of movement. Edwards refused and his
commander instructed the company first sergeant to call the
military police. Edwards then attempted to leave the company
headquarters and after grabbing his commander and scuffling with
three senior noncommissioned officers, he was eventually
subdued. His company commander ordered him into pretrial
confinement and he was placed in hand and leg irons.
Prior to being taken to the confinement facility and prior
to his pretrial confinement hearing, Edwards was taken to see a
trial defense attorney. Once at the defense attorney’s office,
Edwards’ shackles were removed while he met with his attorney.
2
We granted review of the following issue:
Whether there is a substantial basis in law and fact to
question Appellant’s plea to escape from confinement given
that at the time of the alleged offense he was neither
within a confinement facility nor under guard or escort
after having been placed in a confinement facility.
United States v. Edwards, 69 M.J. 243 (C.A.A.F. 2010) (order
granting review).
3
United States v. Edwards, No. 10-0481/AR
After his defense attorney dismissed him to return to the
adjacent waiting area, Edwards left the building without
authorization. It was this “escape” that resulted in the charge
of “escape from confinement” which Edwards now challenges.3
Following the entry of Edwards’ guilty pleas, the military
judge conducted the providence inquiry. In reference to the
offense of escape from confinement the military judge properly
informed Edwards of the elements of the offense and then defined
“confinement,” in part, as “the physical restraint of a person
within a confinement facility or under guard or escort after
having been placed in a confinement facility.” During the
providence inquiry Edwards admitted that his company commander
had ordered him into confinement and that she was authorized to
do so. He further admitted that when he left the trial defense
attorney’s office he had not been released from confinement.4
Discussion
This court “review[s] a military judge’s decision to accept
a guilty plea for an abuse of discretion and questions of law
arising from the guilty plea de novo.” United States v.
3
Edwards remained AWOL until he was arrested for traffic
violations over two weeks later.
4
The military judge did not question Edwards to ensure his
understanding of the terms “confinement” and “confinement
status” during the providence inquiry, nor did he note the
conflict between his definition of “confinement” and Edwards’
explanation of his “escape” prior to being taken to a
confinement facility.
4
United States v. Edwards, No. 10-0481/AR
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “In doing so, we
apply the substantial basis test, looking at whether there is
something in the record of trial, with regard to the factual
basis or the law, that would raise a substantial question
regarding the appellant’s guilty plea.” Id.Article 95, UCMJ, provides that “[a]ny person subject to
this chapter who . . . escapes from custody or confinement;
shall be punished as a court-martial may direct.” While the
UCMJ does not define custody, it does reference the term in
Article 7, UCMJ, which provides that “[a]pprehension is the
taking of a person into custody.” The Manual for Courts-Martial
(MCM), however, defines “custody” to be the:
restraint of free locomotion imposed by lawful
apprehension. The restraint may be physical or, once
there has been a submission to apprehension or a
forcible taking into custody, it may consist of
control exercised in the presence of the prisoner by
official acts or orders. Custody is temporary
restraint intended to continue until other restraint
(arrest, restriction, confinement) is imposed or the
person is released.
MCM pt. IV, para. 19.c(4)(a) (2008 ed).
“Confinement” is defined by Article 9, UCMJ, as “the
physical restraint of a person” and is further defined by the
MCM to be physical restraint imposed under, inter alia, Rule for
Courts-Martial (R.C.M.) 305 (pretrial confinement). MCM pt. IV,
para. 19.c(5)(a). Moreover, R.C.M. 304(d) states that
confinement is imposed by an order of competent authority “by
5
United States v. Edwards, No. 10-0481/AR
the delivery of a person to a place of confinement.” The UCMJ
and the MCM establish a continuum from custody to other forms of
restraint, i.e., arrest, restriction, and confinement. On
several occasions over the years, this court has dealt with the
question as to where an accused was located on this continuum
when he escaped.
In United States v. Ellsey, 37 C.M.R. 75, 78 (C.M.A. 1966),
this court determined that custody and confinement are entirely
different in nature. In Ellsey an accused who had been ordered
into confinement was taken into custody for delivery to the
confinement facility, but escaped before “delivery could be
effected and confinement actually imposed upon him.” Id. at 79.
Under those circumstances the court held that the proper offense
to charge was escape from custody rather than escape from
confinement. Id. In United States v. Felty, 12 M.J. 438(C.M.A. 1982), overruled on other grounds by United States v.
Morton, 69 M.J. 12 (C.A.A.F. 2010), Felty had been placed in a
correctional facility but later was taken out and escorted by a
“chaser” to attend his pretrial confinement hearing before a
magistrate. Following the hearing Felty misrepresented the
magistrate’s decision to the chaser and informed the chaser that
the magistrate had released him. When the two stopped for chow,
Felty walked out the door. Id. at 439-40. He was subsequently
charged with unauthorized absence and escape from custody. Id.6
United States v. Edwards, No. 10-0481/AR
at 440. The court noted that once Felty had been confined in
the military confinement facility, he remained in a confinement
status until released by a proper authority. Id. at 440-41.
Under those circumstances the court held that Felty should have
been charged with escape from confinement rather than escape
from custody. Id. at 441.
Before this court Edwards argues that since he was neither
“within a confinement facility” nor “under guard or escort after
having been placed in a confinement facility,” he was not in a
confinement status at the time of his escape. He asserts that
his conviction for escape from confinement must be set aside
pursuant to this court’s decision in Ellsey.
The Government relies on the Army Court of Criminal Appeals
decision in United States v. McDaniel, 52 M.J. 618 (A. Ct. Crim.
App. 1999), and argues that once Edwards was lawfully ordered
into confinement by his company commander and physical restraint
imposed, he was in a confinement status for purposes of Article
95, UCMJ. In McDaniel, the Army court held that this court’s
decision in Felty, “blurred the distinction between confinement
and custody.” Id. at 620. The Army court found no specific
requirement in the MCM that a prisoner must be placed in a
confinement facility in order to be in a “confinement” status.
Id. Notwithstanding Ellsey, the Army court held that placement
7
United States v. Edwards, No. 10-0481/AR
in a confinement facility is unnecessary for the offense of
escape from confinement under Article 95, UCMJ. Id. at 621.
The issue as to whether “confinement” is effected by an
order to confinement and the imposition of some restraint as
urged by the Government, or by the actual imposition of
confinement, was settled by Ellsey and we see no need to alter
that holding. Ellsey held that confinement must be actually
imposed to initiate confinement status, a holding that was not
altered by Felty. Felty simply recognized that once an accused
is placed in a confinement status, he is in that status until
released by an authorized person. If an accused escapes while
in a confinement status, even if he or she is being escorted
outside of a confinement facility, he has escaped from
confinement. Felty, 12 M.J. at 441-42. Ellsey remains good law
and McDaniel, to the extent it is inconsistent with Ellsey, was
wrongly decided. Edwards had not been placed in a confinement
facility prior to his escape and his status remained that of
“custody” rather than “confinement.”5 Therefore his plea to
escape from confinement was not provident.
Conclusion
The United States Army Court of Criminal Appeals decision
affirming Charge VI and its specification is reversed and Charge
5
We reserve for another day the issue, raised in McDaniel but
not in this case, as to what constitutes a confinement facility
for purposes of Article 95, UCMJ.
8
United States v. Edwards, No. 10-0481/AR
VI and its specification are dismissed. The remaining findings
of guilt and the sentence are affirmed.
9