United States v. Short ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
STEPHENS, LAWRENCE, and ATTANASIO
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Dillon D. SHORT
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 201900140
Decided: 22 September 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Terrance J. Reese
Sentence adjudged 12 February 2019 by a special court-martial con-
vened at Marine Corps Base Camp Lejeune, North Carolina, consist-
ing of a military judge sitting alone. Sentence approved by the conven-
ing authority: reduction to E-1, confinement for 60 days, and a bad-
conduct discharge.
For Appellant:
Captain Scott F. Hallauer, JAGC, USN
For Appellee:
Major Clayton L. Wiggins, USMC
Lieutenant Kimberly Rios, JAGC, USN
Judge ATTANASIO delivered the opinion of the Court, in which Sen-
ior Judge STEPHENS and Judge LAWRENCE joined.
United States v. Short, NMCCA No. 201900140
Opinion of the Court
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
ATTANASIO, Judge:
Appellant was convicted, in accordance with his pleas, of two specifica-
tions of resisting apprehension and one specification of assault consummated
by a battery in violation of Articles 95 1 and 128, Uniform Code of Military
Justice [UCMJ]. 2
Appellant initially submitted his case to the Court on its merits, without
specific assignment of error. Upon review of the record of trial, we specified
three issues for briefing by appellate counsel:
(1) Was Appellant already in “custody” when the civilian prov-
ost marshal officer attempted to “apprehend” him;
(2) If Appellant was already in “custody,” is it legally possible
for him to “resist apprehension” within the meaning of Arti-
cle 95, UCMJ; and,
(3) If Appellant was already in “custody,” is there a substantial
basis in law or fact to question Appellant’s guilty plea to re-
sisting apprehension from the civilian provost marshal of-
ficer?
After carefully considering the record and the parties’ briefs, we hold that
it is legally impossible to resist apprehension within the meaning of Article
95, UCMJ, where the accused was already in custody at the time of the
alleged resistance. Custody constitutes a defense to the crime of resisting
apprehension. As such, should the record reasonably raise the possibility that
the accused was in custody at the time of alleged resistance, the military
1 As part of the Military Justice Act of 2016, National Defense Authorization Act
for Fiscal Year 2017, Division E, Pub. L. No. 114-328, effective 1 January 2019,
Congress relocated the offense of resisting apprehension to Article 87a, UCMJ. The
statutory language, elements, and other pertinent Manual for Courts-Martial [MCM]
provisions remain identical to those under which Appellant was charged.
2 10 U.S.C. §§ 928, 895 (2012).
2
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Opinion of the Court
judge must make further inquiry and either resolve the matter or reject the
accused’s guilty plea.
Here, we find that the record reasonably raised this defense and that the
military judge failed to make adequate further inquiry to resolve it. Accord-
ingly, we find a substantial basis in law and fact to question Appellant’s
guilty plea to Specification 2 of the Additional Charge. We set aside the guilty
finding, dismiss Specification 2 of the Additional Charge, reassess the
sentence, and affirm the remaining findings of guilt and the sentence as
reassessed.
I. BACKGROUND
During the evening of 16 August 2018, in his barracks at Marine Corps
Base Camp Lejeune, Appellant committed an assault consummated by a
battery upon a Navy petty officer (Specification of the Charge). The victim
sought assistance from the Battalion Officer of the Day, Marine First
Lieutenant [1stLt] Alpha. 3 1stLt Alpha arrived at the barracks and decided it
was necessary to apprehend Appellant. Appellant resisted this apprehension
by pushing 1stLt Alpha (Specification 1 of the Additional Charge). Officer
Mike, 4 a civilian provost marshal officer [PMO], subsequently arrived on
scene and attempted to handcuff Appellant. Appellant resisted Officer Mike’s
efforts (Specification 2 of the Additional Charge).
A. The Plea Inquiry
After discussing the battery offense, Appellant described his resistance to
1stLt Alpha’s efforts to apprehend him as follows: “I had shoved him away in
the first attempt to get away from him. With doing so, I was forced to the
ground and held down.” 5
Turning to the specification at issue—resisting apprehension by Officer
Mike—Appellant described that 1stLt Alpha was “holding [him] down” while
waiting for Officer Mike to arrive. 6 Appellant said his struggle with Officer
Mike began when 1stLt Alpha “wanted to transfer me over to [Officer Mike],
3 “1stLt Alpha” is a pseudonym. 1stLt Alpha was also assigned as Appellant’s
executive officer.
4 “Officer Mike” is a pseudonym.
5 R. at 30.
6 Id. at 33.
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Opinion of the Court
but I began resisting [Officer Mike] in the transfer of me to them.” 7 Appellant
added, “I started resisting again” when 1stLt Alpha “turned me over to
[Officer Mike].” 8
The following colloquy then ensued: 9
MJ: So after he turned you over to [Officer Mike], [Officer
Mike] was, at that point, trying to, I guess, either cuff
you—what was he trying to do?
ACC: I believe handcuff me, sir.
MJ: At that point, you start to resist from him; is that
correct?
ACC: Yes, sir.
MJ: So was there a little break in time in between that
time frame? Were they ever, I guess—at that point,
that first issue that we discussed, that was happening
with just you and [1stLt Alpha]?
ACC: Yes, sir. It was.
MJ: So this one was after he was trying to turn you over to
[Officer Mike] when he came to apprehend you fur-
ther, then you resisted him a second time, I guess; is
that correct?
ACC: Yes, sir.
The military judge never addressed with Appellant or his counsel that a
defense to resisting apprehension might exist if Appellant was already in
custody at the time of his alleged resistance against Officer Mike.
B. Other Evidence of Record
According to 1stLt Alpha’s written statement: “[Appellant] became agitat-
ed and began to push [another Marine] which is when I made the decision
and action to detain him until PMO arrived.” 10
7 Id.
8 Id.
9 Id. at 34.
10 Prosecution Exhibit [Pros. Ex.] 3 at 9.
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United States v. Short, NMCCA No. 201900140
Opinion of the Court
The battery victim’s statement described 1stLt Alpha’s effort to appre-
hend Appellant as follows: “Myself, [1stLt Alpha], and [another Marine] jump
on [Appellant] to stop him from hurting anyone else and to subdue him. PMO
is called so we held him and waited for them to show up.” 11 In a follow-up
email, the victim wrote, “[1stLt Alpha] grabs [Appellant] by the ankle and
pulls him to the floor. We are [sic] jump on top of him to gain control of the
situation.” 12
C. Defense’s Motion to Merge for Sentencing the Two Resisting
Apprehension Specifications
At trial, Appellant’s civilian defense counsel moved the court, pursuant to
United States v. Quiroz, 13 to merge for sentencing the two resisting appre-
hension specifications, arguing they arose from a single course of conduct.
The trial counsel disagreed, asserting that the two specifications did not
constitute the same course of conduct. 14 The trial counsel argued that “[t]here
was a difference in time that wasn’t part of the same melee with [1stLt
Alpha]” and that there was “some intervening time” during which the
resistance against 1stLt Alpha “had terminated prior to it then starting up in
a different form with [Officer Mike].” 15
The military judge found that there was “at least some break in time”
between the two events “from the first . . . apprehension to the transfer” and,
“that these would be distinctly separate acts.” 16 Applying the Quiroz factors,
the military judge denied the Defense motion.
11 Id. at 7.
12 Pros. Ex. 5 at 1.
13 55 M.J. 334 (C.A.A.F. 2001).
14 R. at 52.
15 Id. at 53.
16 Id. at 54.
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Opinion of the Court
II. DISCUSSION
A. Standard of Review
Before accepting a guilty plea, a military judge must ensure the plea is
supported by a factual basis. 17 The military judge must elicit sufficient facts
to satisfy every element of the offense in question.
On appeal, we review a military judge’s decision to accept a plea of guilty
for an abuse of discretion 18 and we review questions of law arising from the
guilty plea de novo. 19 We may reject a guilty plea only if there is a substantial
basis in law or fact, based on the entire record of trial, to question the plea. 20
In United States v. Inabinette, our superior court wrote:
There exist strong arguments in favor of giving broad dis-
cretion to military judges in accepting pleas . . . . As a result, in
reviewing a military judge’s acceptance of a plea for an abuse of
discretion appellate courts apply a substantial basis test: Does
the record as a whole show “ ‘a substantial basis’ in law and
fact for questioning the guilty plea.”
Traditionally, this test is presented in the conjunctive (i.e.,
law and fact) . . . ; however, the test is better considered in the
disjunctive (i.e., law or fact). That is because it is possible to
have a factually supportable plea yet still have a substantial
basis in law for questioning it. This might occur where an
accused knowingly admits facts that meet all the elements of
an offense, but nonetheless . . . states matters inconsistent with
the plea that are not resolved by the military judge. At the
same time, where the factual predicate for a plea falls short, a
reviewing court would have no reason to inquire de novo into
any legal questions surrounding the plea.21
17 UCMJ art. 45(a); see also United States v. Care, 40 C.M.R. 247 (C.M.A. 1969);
Rule for Courts-Martial [R.C.M.] 910(e).
18 United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) (quoting United
States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996)).
19 Id. (citing United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007)).
20 Id. (citing United States v. Prater, 32 M.J. 433 (C.M.A. 1991)).
21 Id. (emphasis in original) (quoting Prater, 32 M.J. at 436)
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Opinion of the Court
The inquiry is sufficient “if ‘the factual circumstances as revealed by the
accused himself objectively support that plea.’ ” 22 We evaluate this question
“in terms of the providence of his plea, not sufficiency of the evidence.” 23
When a military judge makes a ruling—including the decision to accept a
guilty plea—based on an erroneous view of the law, he abuses his discre-
tion. 24
A potential defense to the charged crime constitutes “matter inconsistent
with the plea” under Article 45(a), UCMJ. If, at any time during the proceed-
ing, the accused advances a matter raising a possible defense, then “the
military judge is obligated to make further inquiry to resolve any apparent
ambiguity or inconsistency.” 25 A failure to do so constitutes a substantial
basis in law and fact for questioning the guilty plea. 26 However, “[t]he
military judge is not required ‘to embark on a mindless fishing expedition to
ferret out or negate all possible defenses or potential inconsistencies.’ ” 27
Once the military judge has accepted the pleas and entered findings based
upon them, an appellate court will not reverse those findings and reject the
plea unless it finds a substantial conflict between the pleas and the accused’s
statements or other evidence of record. 28 More than a “mere possibility” of
such a conflict is required to overturn the trial results. 29
22United States v. Markert, 65 M.J. 677, 680-81 (N-M Ct. Crim. App. 2007) (quot-
ing United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996)).
23 Id. at 681.
24 United States v. Simpson, 77 M.J. 279, 282 (C.A.A.F. 2018) (citing United
States v. Passut, 73 M.J. 27 (C.A.A.F. 2014)).
25 United States v. Phillippe, 63 M.J. 307, 310 (C.A.A.F. 2006) (citing Prater, 32
M.J. at 436)); see also United States v. Hayes, 70 M.J. 454, 458 (C.A.A.F. 2012)
(reaffirming the “possible defense” standard as the threshold that triggers the
military judge’s obligation to inquire further).
26 See Phillippe, 63 M.J. at 311.
27 United States v. Miranda, No. NMCCA 201100084, 2011 CCA LEXIS 502 at *8
(N-M Ct. Crim. App. Sep. 6, 2011) (unpub. op.) (quoting United States v. Jackson, 23
M.J. 650, 652 (N.M.C.M.R. 1986)).
28 United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F. 2007).
29 Id.7
United States v. Short, NMCCA No. 201900140
Opinion of the Court
B. Analysis
The Defense asserts that there is a substantial basis in law and fact to
question the providence of Appellant’s plea to resisting apprehension from
Officer Mike because, the Defense contends, Appellant was then already in
custody, and it is legally impossible to resist apprehension while in custody.
The Government counters that Appellant was not in custody at the time of
Officer Mike’s apprehension effort and, therefore, we should affirm the guilty
finding.
We find a substantial basis in law and fact to question the providence of
Appellant’s guilty plea to resisting apprehension by Officer Mike. The record
reasonably raised a potential defense—that Appellant was already in 1stLt
Alpha’s custody at the time of Appellant’s alleged resistance against Officer
Mike. Accordingly, the military judge was required to inquire further into
this matter and his failure to do so constituted an abuse of discretion. As a
result, and on the basis of the entire record, we find the military judge erred
by accepting Appellant’s guilty plea.
1. The law of resisting apprehension
There are three elements required to establish the offense of resisting
apprehension: (1) that a certain person attempted to apprehend the accused;
(2) that said person was authorized to apprehend the accused; and, (3) that
the accused actively resisted the apprehension. 30
Apprehension is defined as “the taking of a person into custody.” 31 Custo-
dy means “restraint of free locomotion imposed by lawful apprehension.” 32
Restraint “may be physical or, once there has been a submission to apprehen-
sion or a forcible taking into custody, it may consist of control . . . by official
acts or orders.” 33 Custody “is temporary restraint intended to continue until
other restraint . . . is imposed or the person is released.” 34
30 MCM, pt. IV, ¶19.b.(1).
31 Article 7(a), UCMJ; R.C.M. 302(a)(1); MCM, pt. IV, ¶19.c.(1)(a).
32 MCM, pt. IV, ¶19.c.(4)(a).
33 Id.34 Id.8
United States v. Short, NMCCA No. 201900140
Opinion of the Court
To constitute the offense of resisting apprehension, “the resistance must
be active, such as assaulting the person attempting to apprehend.” 35 “Mere
words of opposition, argument, or abuse, and attempts to escape from custody
after the apprehension is complete, do not constitute the offense of resisting
apprehension although they may constitute other offenses.” 36
It is a defense to resisting apprehension that the accused was already in
custody at the time of the alleged resistance. “Military courts have long held
that a person may not be convicted of resisting apprehension in situations
where that person had already been placed in custody incident to a lawful
apprehension.” 37
2. The law as applied to this case
Here, the record clearly raised the potential defense that Appellant was
already in 1stLt Alpha’s custody at the time of his alleged resistance to
apprehension by Officer Mike. The military judge failed to make further
inquiry to resolve this apparent ambiguity or inconsistency with Appellant’s
plea. In so doing, the military judge missed at least six warning buoys that
signaled further inquiry was required. We discuss each in turn.
First, the record revealed that Appellant’s free locomotion had already
been restrained by lawful apprehension prior to Officer Mike’s arrival. 1stLt
Alpha used past tense to describe apprehending Appellant as a completed
action, “I made the decision and action to detain him until PMO arrived.” 38
Both Appellant and his victim confirmed that 1stLt Alpha took Appellant to
the ground and held him there pending Officer Mike’s arrival. Appellant
described, “[First Lieutenant Alpha] was holding me down while he was
waiting on [Officer Mike] to come and get me.” 39 The victim confirmed that
1stLt Alpha (with others’ help) subdued Appellant by jumping on top of him
and holding him on the ground until PMO arrived. 40 Just as in United States
35 MCM, pt. IV, ¶19.c.(1)(c); see also United States v. Ledbetter, No. NMCCA
200500009, 2007 CCA LEXIS 314, at *5-6 (N-M Ct. Crim. App. Aug. 14, 2007)
(unpub. op.) (quoting identical language from MCM, pt. IV, ¶19.c.(1)(c) (2002 ed.)).
36 MCM, Pt. IV, ¶19.c.(1)(c) (emphasis added).
37 United States v. Balogun, 69 M.J. 666, 668 (A. Ct. Crim. App. 2010) (citations
omitted), rev. denied, 69 M.J. 478 (C.A.A.F. 2011).
38 Pros. Ex. 3 at 9 (emphasis added).
39 R. at 33.
40 Pros. Ex. 3 at 7; Pros. Ex. 5 at 1.
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Opinion of the Court
v. Ledbetter, Appellant’s free locomotion was restrained once “he was forced
to the ground by security personnel.” 41
Second, Appellant explained that he only began resisting Officer Mike
during 1stLt Alpha’s custody transfer to Officer Mike. Specifically, Appellant
said, “I began resisting [Officer Mike] in the transfer of me to them” 42 and “I
started resisting again” when 1stLt Alpha “turned me over to [Officer
Mike].” 43 Put simply, transfer of custody necessarily implies existence of
custody in the first instance.
Third, Appellant resisted Officer Mike only after Officer Mike tried to
handcuff him. The following colloquy is instructive on this point:
MJ: So after he turned you over to [Officer Mike], [Officer
Mike] was, at that point, trying to, I guess, either cuff
you—what was he trying to do?
ACC: I believe handcuff me, sir.
MJ: At that point, you start to resist from him; is that
correct?
ACC: Yes, sir. 44
We have explained previously that an accused, already apprehended and
placed into custody, cannot be guilty of resisting apprehension merely by
resisting an enhanced form of restraint such as handcuffs. 45
41 Ledbetter, 2007 CCA LEXIS 314, at *8; see also United States v. Coleman, 41
C.M.R. 832, 835 (N.M.C.M.R. 1970) (holding that apprehension requires termination
of locomotion); see also Marine Corps Order 5530.15, Enclosure 1, Chapter 2,
Paragraph 4 (14 October 2008) (“The Officer of the Day . . . supervises the main
guard. The Officer of the Day is charged with the execution of all orders of the
Commanding Officer which concern the security of the area within the assigned
jurisdiction.”)
42 R. at 33.
43 Id.
44 Id. at 34.
45 See United States v. Brun, NMCMR No. 89 1960, 1990 CMR LEXIS 369, at *2
(N.M.C.M.R. 20 Apr 1990) (unpub. op.) (citing United States v. Chavez, 6 M.J. 615(A.C.M.R. 1978)).
10
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Opinion of the Court
Fourth, Appellant agreed with the military judge that there was at least
“a little break in time” between the Appellant’s altercation with 1stLt Alpha
and his struggle against Officer Mike. 46
Fifth, while entertaining arguments on the Defense’s Quiroz motion, the
military judge failed to reopen the providence inquiry despite the trial
counsel’s argument that the two altercations were not part of the same course
of conduct. 47 The trial counsel stated unequivocally that “[t]here was a
difference in time that wasn’t part of the same melee with [1stLt Alpha]” and
that there was “some intervening time” where the resistance against 1stLt
Alpha “had terminated prior to it then starting up in a different form with
[Officer Mike].” 48
Sixth, in ruling on the Quiroz motion, the military judge found “at least
some break in time” between the two altercations, “from the apprehension to
the transfer” and, “that these would be distinctly separate acts.” 49 In so
doing, the military judge explicitly distinguished the apprehension from the
transfer, and yet, despite sounding this clear alarm that further inquiry was
required, the military judge made no further effort to resolve Appellant’s
custodial status at the time of the alleged resistance.
3. Conclusion
We may not lightly reverse the trial court’s judgment to accept Appel-
lant’s guilty plea and may do so only for a substantial basis in law or fact. In
that light, we have carefully reviewed the record for evidence tending to show
that Appellant was not in custody at the time of his alleged resistance. The
Government argues certain passages in the record show that Appellant
“continually resisted [1stLt Alpha] through squirming, spitting, being
combative, and attempting to escape.” 50 However, there is significant
evidence in the record, to say nothing of the trial counsel’s own representa-
tions, that suggests that Appellant was lawfully apprehended and taken into
custody. The military judge failed to reopen the providence inquiry to ask
Appellant about the conflict in the evidence on this important legal point.
After all, as we explained above, post-apprehension resistance and attempts
46 R. at 34.
47 Id. at 52.
48 Id. at 53.
49 Id. at 54.
50 Appellee’s Answer of 13 Dec 19 at 11 (internal quotation marks omitted).
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Opinion of the Court
to escape from custody do not constitute resisting apprehension. 51 Most
importantly, when considering a plea’s providence, we are charged with
reviewing not just certain evidence but the entire record.
Based on that review of the entire record, for the reasons stated above, we
find Appellant’s plea statements and other evidence of record plainly raised a
possible defense to resisting apprehension. The military judge’s failure to
inquire further to resolve this matter constituted an abuse of discretion.
Accordingly, we find a substantial basis in law or fact to question the
providence of Appellant’s guilty plea to Specification 2 of the Additional
Charge. Therefore, we set aside the guilty finding and dismiss Specification 2
of the Additional Charge.
C. Sentence Reassessment
Having dismissed Specification 2 of the Additional Charge, we must now
consider whether we can reassess the sentence. In the event of such dismis-
sal, regarding remedy, the parties concurred that we should reassess and
affirm the sentence as adjudged and approved by the convening authority. 52
We agree.
We have “broad discretion” when reassessing sentences. 53 However, we
can only reassess a sentence if we are confident “that, absent any error, the
sentence adjudged would have been of at least a certain severity . . . .” 54 A
reassessed sentence must not only “be purged of prejudicial error [but] also
must be ‘appropriate’ for the offense[s] involved.” 55
We consider the following Winckelmann factors when deciding whether
sentence reassessment is appropriate:
(1) [Whether there have been] [d]ramatic changes in the
penalty landscape and exposure[;]
(2) Whether an appellant chose sentencing by members or a
military judge alone[;] . . .
51 MCM, pt. IV, ¶19.c.(1)(c); Ledbetter, 2007 CCA LEXIS 314, at *6.
52 Appellant’s Brief of 13 Nov 19 at 9; Appellee’s Answer at 13.
53 United States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013).
54 United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986).
55 Id.12
United States v. Short, NMCCA No. 201900140
Opinion of the Court
(3) Whether the nature of the remaining offenses capture[s]
the gravamen of criminal conduct included within the original
offenses and, in related manner, whether significant or aggra-
vating circumstances addressed at the court-martial remain
admissible and relevant to the remaining offenses[; and]
(4) Whether the remaining offenses are of the type that
judges of the courts of criminal appeals should have the experi-
ence and familiarity with to reliably determine what sentence
would have been imposed at trial. 56
After analyzing the Winckelmann factors, we can confidently and reliably
determine that Appellant’s sentence would be unchanged. Appellant was
convicted in a judge alone trial of assault consummated by a battery on a
petty officer by putting his hands on the victim’s neck and pushing him
toward the edge of the third story of the barracks, and resisting apprehension
by a commissioned officer and a civilian PMO. The military judge sentenced
Appellant to confinement for 60 days, reduction to pay grade E-1, and a bad-
conduct discharge.
While not insignificant, the specification alleging resisting apprehension
against the civilian PMO forms only a piece of Appellant’s overall misconduct
on the evening in question. We do not see a dramatic change in the sentenc-
ing landscape with the dismissal of this one specification. We find that “the
nature of the remaining offenses capture[s] the gravamen” of the originally
charged criminal conduct, 57 i.e., physical violence against a fellow Naval
Service Member and defiant resistance against the Service’s lawful writ to
quell disturbances through lawful apprehension. This sort of misconduct is
readily familiar to military appellate judges. For these reasons we are
satisfied that, absent the dismissed specification, the court-martial would
have adjudged no less of a sentence to Appellant—confinement for 60 days,
reduction to pay grade E-1, and a bad-conduct discharge. We find this
sentence to be an appropriate punishment for the remaining convictions and
this offender—thus satisfying the requirement for a reassessed sentence both
purged of error and appropriate. 58
56 Winckelmann, 73 M.J. at 15-16 (citations omitted).
57 Id. at 16.
58 Sales, 22 M.J. at 308.
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Opinion of the Court
III. CONCLUSION
We have carefully considered the record, each of the specified issues, and
the parties’ submissions. We find improvident Appellant’s guilty plea to
Specification 2 of the Additional Charge. The guilty finding to that specifica-
tion is hereby SET ASIDE. Specification 2 of the Additional Charge is hereby
DISMISSED. Following this corrective action, we conclude that the remain-
ing findings and the reassessed sentence are correct in law and fact and that
no error materially prejudiced Appellant’s substantial rights. 59 Accordingly,
the findings as modified and the sentence as reassessed are AFFIRMED.
Senior Judge STEPHENS and Judge LAWRENCE concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
59 UCMJ arts. 59, 66.
14