United States v. Sewell ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
JEREMY L. SEWELL
SERGEANT (E-5), U.S. MARINE CORPS
NMCCA 201300432
SPECIAL COURT-MARTIAL
Sentence Adjudged: 23 August 2013.
Military Judge: Col D.M. McConnell, USMC.
Convening Authority: Commanding General, Training Command,
Quantico, VA.
Staff Judge Advocate's Recommendation: LtCol M.E. Sayegh,
USMC.
For Appellant: Maj Richard A. Viczorek, USMCR.
For Appellee: CDR James E. Carsten, JAGC, USN.
28 August 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as a special court-martial
convicted the appellant, pursuant to his pleas, of one
specification of attempt to violate a lawful general order, six
specifications of violating a lawful general order or
regulation, one specification of making a false official
statement, and one specification each of wrongfully possessing,
distributing, and using marijuana, in violation of Articles 80,
92, 107, and 112a, Uniform Code of Military Justice, 10 U.S.C. §
880, 892, 907, and 112a. The appellant was sentenced to
confinement for seven months, reduction to pay grade E-1,
forfeiture of five hundred dollars pay per month for seven
months, and a bad-conduct discharge. In accordance with the
pretrial agreement (PTA), the convening authority (CA)
disapproved the adjudged forfeitures, waived automatic
forfeitures for six months, and approved the remainder of the
adjudged sentence.
The appellant now raises four assignments of error (AOE).
First, he claims that his plea to the sole specification under
Charge I (attempt) was improvident. Second, he claims that the
promulgating order fails to comply with RULE FOR COURTS-MARTIAL
1114(c)(1), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). The
third AOE claims that the CA improperly purported to execute the
appellant’s discharge. Last, that appellant claims he was
denied appropriate appellate review because the record of trial
does not contain any documents pertaining to the general court-
martial portion of his case.
After reviewing the record of trial and the pleadings of
the parties, we find that the supplemental court-martial order
states the wrong offense under the sole specification under
Charge V. We will order corrective action in our decretal
paragraph. We otherwise find the findings of guilty and
approved sentence correct in law and fact, and no errors
materially prejudicial to the substantial rights of the
appellant were committed. Arts. 59(a) and 66(c), UCMJ.
Background
The appellant was an instructor assigned to Charlie
Company, Infantry Training Battalion (ITB), School of Infantry
(SOI)-East. While serving at SOI-East, the appellant used
and/or misused a number of illegal and/or controlled substances,
to include marijuana and Prozac. The appellant also kept
marijuana in his truck “to get high on multiple occasions.”
Record at 58.
Private First Class (PFC) P and PFC F were students
assigned to Charlie Company, ITB, SOI-East. The appellant was
their instructor and mentor. The appellant was on a first-name
basis with these two Marines and did not refer to them by their
rank. The appellant also supplied marijuana to both of these
Marines.
Because of his drug use, the appellant was worried that his
urine sample would test positive for controlled substances at a
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future, yet to be scheduled or announced, urinalysis. In a plan
to avoid possible detection, he ordered PFC F to urinate in a
bottle so that he could later swap urine samples to avoid
testing positive for illegal substances. Prior to having PFC F
provide a urine sample, the appellant was assured by PFC F that
he had not recently used drugs. PFC F then urinated into the
bottle and gave it to the appellant, who planned to then provide
PFC F’s urine sample as his own. However, the appellant never
used PFC F’s urine because he wasn’t entirely confident that PFC
F’s urine sample was not “contaminated.” Record at 22-23. The
appellant later admitted during the providence inquiry that the
collection of PFC F’s urine constituted a substantial step
toward violating paragraph 5(d) of Secretary of the Navy
Instruction 5300.28E, which prohibits the substitution of “any
substance for one’s own urine,” and “amounted to more than mere
preparation.” Id. at 22-23.
At trial, the appellant also admitted to snorting crushed
prescription Prozac tablets through a red straw to get
intoxicated. When the appellant’s command conducted a search of
the appellant’s truck, they discovered a red straw. When
initially asked what the straw was used for, the appellant lied
to his company commander as to the purpose of the red straw, but
later confessed that he used it to snort drugs.
One time, after smoking marijuana, the appellant provided a
urine sample, but squirted hand sanitizer into the bottle before
it was sealed in an attempt to thwart the detection of the
marijuana metabolite. Notwithstanding the appellant’s efforts,
that sample tested positive for the marijuana metabolite.
Additional facts needed for the resolution of a particular
AOE are included below.
Providence of the Attempt Plea
In his first AOE, the appellant argues that his plea to the
attempt offense was improvident because the military judge
accepted his plea without inquiring into the specifics of the
urinalysis for which the appellant intended to substitute his
urine sample with that of another. We disagree.
We review a military judge’s decision to accept a guilty
plea for an abuse of discretion. United States v. Eberle, 44
M.J. 374, 375 (C.A.A.F. 1996). A decision to accept a guilty
plea will be set aside if there is a substantial basis in law or
fact for questioning the plea. United States v. Inabinette, 66
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M.J. 320, 322 (C.A.A.F. 2008). We will not reverse a military
judge’s decision to accept a guilty plea unless we find “a
substantial conflict between the plea and the accused's
statements or other evidence of record.” United States v.
Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996). “A ‘mere possibility’
of such a conflict is not a sufficient basis to overturn the
trial results.” Id. (quoting United States v. Prater, 32 M.J.
433, 436 (C.M.A. 1991)).
During the providence inquiry, the military judge must
determine whether there is a “factual basis for the plea.”
R.C.M. 910(e). There is no requirement that any independent
evidence be produced to establish a factual basis for the plea.
United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996).
Rather, the factual predicate is sufficiently established if
“the factual circumstances as revealed by the accused himself
objectively support that plea . . . .” Id. (quoting United
States v. Davenport, 9 M.J. 364, 367 (C.M.A. 1980)).
The Court of Appeals for the Armed Forces has
explained:
Quite simply, where an accused pleads guilty and
during the providence inquiry admits that he went
beyond mere preparation and points to a particular
action that satisfies himself on this point, it is
neither legally nor logically well-founded to say that
actions that may be ambiguous on this point fall short
of the line “as a matter of law” so as to be
substantially inconsistent with the guilty plea.
United States v. Garner, 69 M.J. 31, 33 (C.A.A.F. 2010) (quoting
United States v. Schoof, 37 M.J. 96, 103 (C.M.A. 1993)).
Here, the military judge adequately explained the
definition of a “substantial step.” Record at 17; see also
Garner, 69 M.J. at 33. Additionally the appellant admitted that
his acts constituted substantial steps towards completion of the
ultimate offense. Record at 23. Those admissions were
consistent with case law as to what constitutes a substantial
step. See, e.g., United States v. Byrd, 24 M.J. 286, 290
(C.M.A. 1987).
Accordingly, we conclude that the military judge did not
abuse her discretion in accepting the plea.
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Defective Promulgating Order
The appellant’s second AOE concerns the promulgating order.
The CA originally took action on the appellant’s case on 1
November 2013. Court-Martial Order (CMO) No. 013-26. That
Order correctly reflected that the appellant pleaded not guilty
to Charge V, an Article 111, UCMJ, offense for driving a vehicle
under the influence of marijuana. However, the CMO failed to
include language disapproving adjudged forfeitures in accordance
with the PTA. On 12 November 2013, the CA issued Supplemental
CMO No. 013-26a in order to disapprove the adjudged forfeitures
in accordance with the PTA. That Supplemental Order incorrectly
listed the Article 111, UCMJ, offense as a wrongful possession
of marijuana, but noted the correct article and plea, and
correctly stated the charge was dismissed without prejudice.
We analyze this claim under a harmless-error standard.
United States v. Crumpley, 49 M.J. 538, 539 (N.M.Ct.Crim.App.
1998). We are convinced that this scrivener’s error did not
amount to plain error materially prejudicing appellant’s
substantial rights because no prejudice was alleged or is
apparent. See id. However, the appellant is entitled to have
his official records correctly reflect the results of his court-
martial. See id. We will therefore order corrective action in
our decretal paragraph.
Purported Execution of the Punitive Discharge
The appellant avers that the CA erred in attempting to
execute the appellant's bad-conduct discharge. Here, the CA’s
Supplemental Court Martial Order No. 013-26a states, “Subject to
the limitations contained in the [UCMJ], the Manual for Courts-
Martial, applicable regulations, and this action, the sentence
is ordered executed.”
Article 71, UCMJ, “does not permit a punitive discharge to
be executed until after there is a final judgment, an event
which necessitates review by a Court of Criminal Appeals.”
United States v. Tarniewicz, 70 M.J. 543, 544 (N.M.Ct.Crim.App.
2011). “[T]o the extent that the convening authority’s action
purported to execute the bad-conduct discharge, it was a
nullity.” United States v. Bailey, 68 M.J. 409, 409 (C.A.A.F.
2009) (summary disposition); see Tarniewicz, 70 M.J. at 544.
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Record of Trial Omits Documents of Previously Referred
General Court-Martial
The appellant’s final assignment of error is that he has
been denied appropriate appellate review where the record of
trial omits any documentation pertaining to the general court-
martial portion of his case. We disagree.
The appellant’s charges were initially referred for trial
by general court-martial. An Article 39(a) session was
conducted in the general court-martial case on 11 March 2013.
As consideration for the appellant’s pleas of guilty pursuant to
the PTA agreed to on 3 July 2013, the CA withdrew all of the
charges pending before the general court-martial and re-referred
the charges to a special court-martial on 8 August 2013.
The appellant’s special court-martial record of trial
contains no documentation pertaining to the prior general court-
martial. The appellant contends that he suffered prejudice from
this omission because charges were preferred on 26 October 2012;
he was arraigned on 23 August 2013; and there were no documents
present in the record of trial to explain this timeline. At
trial, the appellant’s defense counsel did not raise a speedy
trial motion or a motion for improper re-referral. The
appellant argues on appeal that the inclusion of those documents
in the record of trial would allow this court to examine
potential issues of improper re-referral, speedy trial, or
ineffective assistance of counsel. We disagree.
Completeness of a record of trial is reviewed de novo.
United States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000). “A
substantial omission renders a record of trial incomplete and
raises a presumption of prejudice that the Government must
rebut.” Id. at 111 (citations omitted). “Insubstantial
omissions from a record of trial do not raise a presumption of
prejudice or affect that record’s characterization as a complete
one.” Id. This court has held that a complete record is
defined as a “verbatim transcript.” United States v. Mayville,
32 M.J. 838, 841 (N.M.C.M.R. 1991); see also United States v.
Smith, 59 M.J. 604, 607-08 (N.M.Ct.Crim.App. 2003) (finding that
R.C.M. 1107(d)(4)’s reference to R.C.M. 1103(c)(1), which refers
to five other subsections, only requires that a verbatim
transcript be prepared whenever the adjudged punishment includes
a bad-conduct discharge or more than six months of confinement).
We conclude that the omissions in this case are not
substantial and do not affect any of the charges and
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specifications. See United States v. Bartolo, No. 201000212,
2011 CCA LEXIS 3 at *11 (N.M.Ct.Crim.App. 18 Jan 2011) (finding
missing enclosures to the Article 34 advice and missing
attachments to the Article 32 investigation from general court-
martial record of trial insubstantial when they did not affect
any of the charges or specifications to which appellant pled
guilty). We reach this conclusion for several reasons. First,
the appellant pled guilty in accordance with a PTA, the trial
transcript reflects the verbatim pleas of the appellant, and on
appeal the appellant does not contest the factual circumstances
of his pleas at trial. Second, the appellant does not assert
that he raised any pretrial motions which contested the fairness
of the Article 32 proceedings, objected to the Article 34
advice, or claimed speedy trial issues or improper withdrawal or
re-referral at either the general or special court-martial.
Third, the missing documents, which pertain to pre-referral
matters, were not considered by the military judge during the
findings or sentencing phases of the appellant’s case. Finally,
the appellant’s special court-martial record of trial appears to
otherwise be a complete and verbatim record, and the appellant
has not argued otherwise.
In light of these facts, based upon our review of the
record, we view the omission of these documents as not
substantial, and the absence of these documents has not
prohibited us from conducting a thorough review as required
under Article 66, UCMJ. Furthermore, the appellant has
identified no prejudice attributable to the lack of his general
court-martial documents in his special court-martial record of
trial. “An unconditional plea of guilty waives all
nonjurisdictional defects at earlier stages of the proceedings.”
United States v. Bradley, 68 M.J. 279, 281 (C.A.A.F. 2010)
(citations omitted). This court also applies “waiver to speedy-
trial issues in unconditional guilty-plea cases.” United States
v. Harris, No. 200000483, 2003 CCA LEXIS 178 at *5, unpublished
op. (N.M.Ct.Crim.App. 12 Aug 2003) (citing United States v.
Bruci, 52 M.J. 750, 754 (N.M.C.C.A. 2000)). As a result of his
unconditional guilty plea and failure to bring any issue
concerning improper referral or speedy trial at his special
court-martial, we find that he has waived those issues on
appeal.
Conclusion
Accordingly, the findings and the sentence as approved by
the CA are affirmed. We direct that the supplemental CMO
correctly reflect that the offense in the sole specification
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under Charge V was physically controlling a vehicle while
impaired by marijuana.
For the Court
R.H. TROIDL
Clerk of Court
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