United States v. Stack ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
HOLIFIELD, STEWART, and STARITA
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Jeremy J. STACK
Lieutenant (O-3), U.S. Navy
Appellant
No. 202100131
Decided: 3 September 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Stephen C. Reyes (arraignment)
Donald R. Ostrom (trial)
Sentence adjudged 21 January 2021 by a general court-martial con-
vened at Region Legal Service Office Mid-Atlantic, Norfolk, Virginia,
consisting of a military judge sitting alone. Sentence approved by the
convening authority: confinement for ten months and a dismissal.
For Appellant:
Captain Colin A. Kisor, JAGC, USN
For Appellee:
Brian K. Keller, Esq.
United States v. Stack, NMCCA No. 202100131
Opinion of the Court
_________________________
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
_________________________
PER CURIAM:
After careful consideration of the record, submitted without assignment of
error, we have determined that the findings and sentence are correct in law
and fact and that no error materially prejudicial to Appellant’s substantial
rights occurred. 1
We note, however, that during the Appellant’s guilty plea providence
inquiry the military judge failed to state an element and define two material
terms for Charge I of the charged offenses. 2 As stated in United States v.
Redlinski, “[f]or 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.” 3 The
military judge’s failure to do so constitutes 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.” 4 In reviewing the record, we
look “at the context of the entire record to determine whether an accused is
aware of the elements, either explicitly or inferentially,” rather than focusing
on a technical listing of the elements of an offense. 5 Here, the Appellant in
his providence inquiry and stipulation of fact was explicit in his knowledge of
1 Articles 59 & 66, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 859,
866.
2 Appellant was charged with an attempted sexual abuse of a child by indecent
communication under Article 80, UCMJ, and which incorporates the underlying
offense of Article 120b(c), UCMJ. During the providence inquiry, the military judge
incorporated and gave the elements and definitions of Article 134, UCMJ, indecent
language.
3 United States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003), citing United
States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247 (1969). See Article 45(a), UCMJ, 10
U.S.C. §845(a)(2018).
4 Id., citing United States v. Jones, 34 M.J. 270, 272 (C.M.A. 1992).
5 Id., citing United States v. Pretlow, 13 M.J. 85, 88 (C.M.A. 1982); United States
v. Kilgore, 21 C.M.A. 35, 37, 44 C.M.R. 89 (1971).
2
United States v. Stack, NMCCA No. 202100131
Opinion of the Court
the elements and definitions of the charged offense, admitted them freely and
voluntarily, and pleaded guilty because he was guilty. We therefore find no
prejudice in the error. But we remind military judges of the importance of
attention to detail regarding the elements and definitions of the charged
offenses when performing their providence inquiries. 6
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
6 We also note that Prosecution Exhibit 2 is unsealed, and yet contains explicit
images. We hereby order it sealed.
3