United States v. Hardeman , 2004 CAAF LEXIS 366 ( 2004 )

UNITED STATES, Appellee
v.
Stanley L. HARDEMAN, Jr., Senior Airman
U.S. Air Force, Appellant
No. 03-0208
Crim. App. No. S30117
___________________________________________________________
United States Court of Appeals for the Armed Forces
Argued October 22, 2003
Decided April 20, 2004
BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and ERDMANN JJ., joined.
Counsel
For Appellant: Captain L. Martin Powell (argued); Colonel
Beverly B. Knott (on brief); and Major Terry L. McElyea.
For Appellee: Captain Michelle M. Lindo (argued); Colonel
LeEllen Coacher, Major John D. Douglas and Major James K.
Floyd (on brief); Lieutenant Colonel Robert V. Combs and
Lieutenant Colonel Lance B. Sigmon.
Military Judge: Kurt D. Schuman
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Hardeman, No. 03-0208/AF
Judge BAKER delivered the opinion of the Court:
Pursuant to his pleas, Appellant was convicted by a
special court-martial, military judge alone, of one
specification of unauthorized absence and one specification
of failure to go in violation of Article 86, Uniform Code
of Military Justice [hereinafter UCMJ], 10 U.S.C. § 886(2000). The adjudged sentence provided for a bad-conduct
discharge, confinement for four months, and reduction to
pay grade E-1. In accordance with a pretrial agreement,
the convening authority approved confinement for two
months, but otherwise approved the sentence as adjudged.
The United States Air Force Court of Criminal Appeals
affirmed the findings and sentence in an unpublished
opinion. This Court granted review to determine:
WHETHER APPELLANT’S GUILTY PLEA TO SPECIFICATION 1 OF
THE CHARGE IS IMPROVIDENT BECAUSE THE MILITARY JUDGE
FAILED TO ELICIT FACTS FROM APPELLANT TO SUPPPORT THAT
HIS ABSENCE FROM HIS UNIT WAS WITHOUT PROPER
AUTHORITY.
Appellant was charged with absenting himself without
authority from his unit on or about November 1, 2001, and
remaining absent until apprehended on or about December 14,
2001.1 During his providence inquiry, Appellant set forth
1
Appellant has not challenged the providence of his guilty plea to
Specification 2 alleging an unrelated failure to go.
2
United States v. Hardeman, No. 03-0208/AF
matters inconsistent with a plea of guilty to an
unauthorized absence on November 1. As a result, we are
left with a substantial basis in law and fact to question
the plea and we reverse as to Specification 1 of the
Charge.
FACTS
Appellant reported to Tinker Air Force Base, Oklahoma,
on October 22, 2001. At the time, Appellant was a 26 year-
old E-4 with 44 months active duty service and was married
with two dependents. Prior to joining his unit, the 72nd
Security Forces Squadron, Appellant was required to attend
training between October 22 and October 29. Appellant’s
stipulation of fact indicated that when he had not yet
reported to training on October 25, his supervisor, Staff
Sergeant (SSgt) Brian Andrew, called Appellant at home.
SSgt Andrew gave Appellant permission to stay home that day
and told him to report to training the following morning.
Appellant reported one hour late. On Monday, October 29,
SSgt Andrew released Appellant from the training course.
Appellant was not thereafter present for duty with his unit
until he was apprehended on December 14 at his local
residence.
The stipulation of fact also states that “[i]f called
to testify, SSgt Andrew would say he instructed the accused
3
United States v. Hardeman, No. 03-0208/AF
to report to ‘A’ flight, day shift on 1 November, 2001.”
However, during the providence inquiry Appellant maintained
that SSgt Andrew did not give him a specific date to report
for duty and that he was expecting a telephone call
advising him when he should report. In Appellant’s words:
I was supposed to report to duty -- I left training
and I was supposed to receive a phone call. I never
received the phone call, so I never reported to duty.
Around December 14th, as the document states, I was
apprehended at my home and brought down to the LE
station; but, I was waiting for the phone call so
that’s why I never came to duty. During the time that
I left training, a couple of days after, I never
received the phone call. I know the phone call was
supposed to come, but I never — I didn’t call back; I
was waiting to see if they were going to call back.
And, days went into weeks, and weeks into that month
and I never went in to work.
Upon further questioning, Appellant insisted that he was
not given a specific date and time to report for duty:
MJ: . . . Now, do you recall Staff Sergeant Andrew
instructing you to report to “A” Flight day shift on 1
November of 2001?
ACC: I recall him saying that he would give me a call.
The date, exactly, I don’t recall him saying.
. . . .
MJ: Okay. So, as of the 29th -- now, what the
stipulation says is that if Staff Sergeant Andrew were
to testify, that he would testify that he did tell you
to report to “A” Flight day shift on 1 November of
2001. Do you agree with that? That, in fact, that’s
what he would say?
ACC: Yes, I agree that’s what he would say is the
truth.
4
United States v. Hardeman, No. 03-0208/AF
MJ: Okay, but you have -- did you know that you were
going to be assigned to “A” Flight?
ACC: Yes, sir, he told me “A” Flight.
MJ: Okay, so there’s no question in your mind that you
were assigned to “A” Flight?
ACC: Right.
MJ: Okay. Now, if he says you were supposed to report
on 1 November — okay, that’s what he would testify to,
right? Now you don’t recall him necessarily saying
that?
ACC: No, sir.
MJ: And, you expected a phone call?
ACC: Yes, sir.
Appellant acknowledged that he had no accrued leave
and that he should have called his unit, especially because
“everybody was pretty busy” and “working long hard hours”
in the month following September 11, 2001. The military
judge continued:
MJ: Now, after a couple of days, you should have known
that somebody missed something. Now, this is assuming
that no one told you to report on the 1st of November,
right?
ACC: Right.
MJ: Now, if you were waiting for the phone call and it
didn’t come for a few days, you should have called in,
right?
ACC: Yes, sir.
. . . .
5
United States v. Hardeman, No. 03-0208/AF
MJ: And, it became even more obvious after two and
three and four and five weeks had passed?
ACC: Yes, sir.
MJ: So, what I’m getting at here is maybe there was a
misunderstanding early on during this charged time
period; but as time passed, you knew better. You knew
you should be getting back to your unit.
ACC: Yes, sir.
. . . .
MJ: So, do you agree that, on or about 1 November
2001, that you absented yourself from your
organization?
ACC: Yes, sir.
MJ: And, that your absence was without proper
authority from someone who could give you leave?
ACC: Yes, sir.
Based on this colloquy and Appellant’s stipulation of fact,
the military judge accepted Appellant’s plea of guilty to
an unauthorized absence on or about November 1 and ending
with his apprehension on December 14, a period of 43 days.
In summary, Appellant persistently asserted that he was
waiting for a telephone call to inform him when he was to
report for duty. Appellant also explained that the person
he expected to call him, SSgt Andrew, had previously
authorized his absences.
On appeal, Appellant argues that his statements during
the providence inquiry regarding the time and place at
6
United States v. Hardeman, No. 03-0208/AF
which he was required to report for duty were inconsistent
with his plea to unauthorized absence on or about November
1.
The Government responds that Appellant admitted to all
the elements of the offense before the military judge,
therefore, there is no substantial basis on which to
question the plea.
DISCUSSION
A court shall not accept a plea of guilty where “an
accused . . . sets up matter inconsistent with the plea, or
if it appears that he has entered the plea of guilty
improvidently . . . .” Article 45(a), UCMJ, 10 U.S.C. §
845(a) (2000). Nor shall a court accept a plea of guilty
without making such inquiry of the accused as shall satisfy
the military judge that there is a factual basis for the
plea.” Rule for Courts-Martial [hereinafter R.C.M.]
910(e). See United States v. Care, 18 C.M.A. 535, 40
C.M.R. 247 (1969).
A guilty plea will be rejected only where the record
of trial shows a substantial basis in law and fact for
questioning the plea. United States v. Prater, 32 M.J.
433, 436 (C.M.A. 1991); United States v. Jordan, 57 M.J.
236, 238 (C.A.A.F. 2002). In this case the record of trial
includes the colloquy between Appellant and the military
7
United States v. Hardeman, No. 03-0208/AF
judge and a stipulation of fact, as well as any inferences
reasonably drawn from the record. See Care, 18 C.M.A. at
540, 40 C.M.R. at 252.
A service member commits the offense of unauthorized
absence, Article 86, when it is shown:
(a) That the accused absented himself or herself
from his or her unit . . . at which he or
she was required to be;
(b) That the absence was without authority from
anyone competent to give him or her leave;
and
(c) That the absence was for a certain period of
time.2
A definitive inception date is indispensable to a
successful prosecution for unauthorized absence. United
States v. Harris, 21 C.M.A. 590, 593, 45 C.M.R. 364, 367
(1972). Moreover, the Manual for Courts-Martial, United
States (2002 ed.), Part IV, para. 10.e., authorizes
increased punishments based upon, among other things, the
duration of the absence. Thus, it necessarily follows that
in addition to establishing that an unauthorized absence
offense has been committed at all, a precise inception date
is required in determining the duration of the absence.
“The length of an unauthorized absence is the essential
element in determining the legal punishment for the
2
In this case an additional element was termination by apprehension.
8
United States v. Hardeman, No. 03-0208/AF
offense.” United States v. Francis, 15 M.J. 424, 427
(C.M.A. 1983)(citation omitted).
In Appellant’s case, the providence inquiry revealed
an inconsistency between the stipulation of fact and
Appellant’s statements during the plea inquiry. Although
there may have come a point between November 1 and December
14 when Appellant was absent without authority, the record
does not fix a date of inception. The judge made several
comments reflecting his understanding of Appellant’s belief
that he would receive a telephone call including the
following: “maybe there was a misunderstanding early on
during this charged time period,” and “you may feel that
you have some justification for a few days here.” But the
providence inquiry does not ultimately reveal the date on
which Appellant was willing to admit he absented himself
without authority.
On the one hand, when asked directly by the military
judge whether he agreed that he absented himself without
proper authority on November 1, Appellant responded “Yes,
Sir.” On the other hand, Appellant indicated repeatedly
that he was waiting for a telephone call and that it only
became obvious over a matter of weeks that he should have
called. The military judge’s colloquy with Appellant did
not resolve this inconsistency or otherwise establish that
9
United States v. Hardeman, No. 03-0208/AF
Appellant lacked authority to remain away from his unit on
or about November 1. Rather than focusing on a precise
date for the inception of the Appellant’s unauthorized
absence, the military judge confirmed only that “it became
more obvious after two and three and four and five weeks
had passed” that Appellant “knew better” and should have
contacted or returned to his unit.
As noted above, Article 86 authorizes increased
punishments depending on the duration of the unauthorized
absence, and it is only for an absence greater than 30 days
that an accused becomes eligible for punitive discharge.
Thus, for this particular offense, Appellant was only
exposed to a punitive discharge if the date of inception
was more than 30 days before December 14, or on November
13.3
Finally, the Government argues that it is implausible
for someone of Appellant’s grade and experience to believe
he was authorized to remain away from his unit until
telephoned. While this is certainly a valid consideration
in a contested case, in order to plead guilty, Appellant
3
We are cognizant of the fact that in this case, neither an absence of
30 days or less nor the accompanying failure to go offense would
authorize a punitive separation individually. However, under the
escalator clause of Rule for Courts-Martial 1003(d)(3), the combined
maximum authorized punishment includes confinement for seven months,
theoretically exposing Appellant to a punitive discharge.
10
United States v. Hardeman, No. 03-0208/AF
must admit to a date that is in fact “on or about” November
1. Here, for whatever reasons, Appellant refused to do so.
A guilty plea must be an admission to all the elements of a
formal criminal charge. Care, 18 C.M.A. at 539, 40 C.M.R.
at 251. Because the record does not support the legal
determination that Appellant conceded that his absence was
without authority on the charged date, there is a
substantial basis in law and fact to question his plea.
CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is reversed as to Specification 1 of the
Charge. The finding of guilty to Specification 1 and the
sentence are set aside. The record of trial is returned to
the Judge Advocate General of the Air Force. A rehearing
is authorized.
11