United States v. Sergeant ELI R. VICK

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and SCHASBERGER
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant ELI R. VICK
United States Army, Appellant
ARMY 20180530
Headquarters, I Corps
Timothy P. Hayes, Jr. and Lanny J. Acosta, Jr., Military Judges
Colonel Oren H. Mcknelly, Staff Judge Advocate
For Appellant: Major Julie L. Borchers, JA; Captain Steven J. Dray, JA.
For Appellee: Pursuant to A.C.C.A. Rule 15.4, no response filed.
11 April 2019
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SUMMARY DISPOSITION
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Per Curiam:
Appellant has not raised any assignments of error and has submitted his case
for our review “on its merits.” We find it has merit indeed. Our review of this case
reveals one clear error requiring correction.
We set aside appellant’s conviction for a specification alleging appellant was
derelict in his duties. Appellant’s plea colloquy with the military judge did not
establish his guilt, much less his providence thereto. Moreover, the stipulation of
fact—mutually agreed to by appellant and the government—directly refutes the
substance of appellant’s alleged dereliction.
BACKGROUND
Appellant was a Unit Prevention Leader (UPL), a position dedicated to
preventing the abuse of controlled substances in appellant’s unit. He was also a
drug dealer. More precisely, appellant was already engaged in the manufacture,
transportation, and distribution of controlled substances when he was given duties as
a UPL. Appellant’s new duties did not deter him from his nefarious activities.
VICK—ARMY 20180530
One of appellant’s duties as a UPL was to conduct training on the dangers of
illicit substances and to help prevent the use of such substances within his unit. Not
shy of contradictions, appellant simultaneously possessed, used, manufactured, or
distributed a variety of controlled substances, including marijuana, cocaine, MDMA,
and psilocybin mushrooms. Unfortunately for appellant, his double life was soon
discovered, and his tenure as both UPL and drug-dealer came to an ignominious end.
Charged with a cavalcade of misconduct, appellant offered to plead guilty to
his pharmacological misdeeds in exchange for dismissal of one charge and assurance
that he would serve no more than twenty months of confinement. The convening
authority accepted appellant’s offer, and the parties entered into a pretrial agreement
accordingly.
One of the specifications to which appellant agreed to plead guilty alleged he
was derelict in his duties as a UPL because, “he willfully failed to deliver informed
prevention education and training to all Soldiers assigned to [appellant’s unit].”
Inexplicably, appellant and the government also agreed to a stipulation of fact that
stated: “During his time as UPL, [appellant] would continue to provide training
commensurate with his position as UPL, but he would also use, manufacture, and
distribute controlled substances in his personal capacity.” (emphasis added).
At appellant’s guilty plea, he dutifully explained his nefarious enterprises
manufacturing, distributing, and personally using various controlled substances.
When appellant’s providence inquiry turned to the subject of dereliction, however,
his explanation was convoluted. Appellant’s initial explanation was that he was
derelict as a UPL because he “didn’t prevent anything from happening” and “didn’t
inform the chain of command of any drug-related incidents happening in the unit.”
The military judge pointed out that appellant was charged with dereliction for
failing to provide training, not for failing to notify the chain of command about drug
use in the unit. The military judge asked appellant if he had provided the training a
UPL was required to provide. Appellant responded, “I did, your Honor.” The
military judge asked why appellant was derelict if he provided the training.
Appellant responded that, while he provided the training, he also provided drugs to
members of his unit and “failed to inform the leadership of the consequences.”
While appellant briefly suggested that he might not have provided as many
quarterly training sessions as were required of a UPL, further discussion with the
military judge demonstrated he most likely provided the required quarterly training.
Eventually, appellant suggested that he was derelict because he “failed to provide
education and training when [he] handed out the drugs to soldiers.” Eventually, the
military judge appeared to accept this theory, coupled with the explanation from
defense counsel that appellant’s “UPL duties were essentially 24/7, so if he saw
someone using drugs it was his duty at that time to inform them, or to prevent that
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VICK—ARMY 20180530
from happening.” The trial counsel agreed. The military judge ultimately accepted
appellant’s plea, but did not resolve the contradiction between appellant’s theory of
his own guilt and the stipulation of fact.
The military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of one specification under Article 92 and nine specifications
under Article 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 112a
[UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, three
years of confinement, forfeiture of all pay and allowances, and reduction to the
grade of E-1. Pursuant to the pretrial agreement, the convening authority approved
appellant’s sentence only insofar as it provided for a bad-conduct discharge, twenty
months of confinement, forfeiture of all pay and allowances, and reduction to the
grade of E-1. Appellant’s case is now before us for review under Article 66, UCMJ.
LAW AND DISCUSSION
A military judge’s decision to accept a guilty plea is reviewed for an abuse of
discretion. United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (citing United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). A guilty plea will only be
set aside if we find a substantial basis in law or fact to question the plea. Id. (citing
Inabinette, 66 M.J. at 322). While a stipulation of fact can support the providence
of a guilty plea, it can also introduce matters inconsistent with a guilty plea and
render such a plea improvident. See United States v. Simpson, 77 M.J. 279, 283
(C.A.A.F. 2018).
We find the military judge abused his discretion by accepting appellant’s plea
to the dereliction of duty specification. Appellant’s colloquy with the military judge
was insufficient to establish that appellant “willfully failed to deliver informed
prevention education and training.” Further, the stipulation of fact explicitly stated:
“During his time as UPL, [appellant] would continue to provide training
commensurate with his position as UPL . . . .” The stipulation of fact is therefore
plainly inconsistent with the language of the specification alleging dereliction. It is
our duty to correct this error.
CONCLUSION
Appellant’s conviction of The Specification of Charge III and Charge III are
SET ASIDE and both The Specification of Charge III and Charge III are
DISMISSED. The remaining findings of Guilty are AFFIRMED.
Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of United States v. Sales, 22 M.J. 305, 308
(C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013), appellant’s sentence is AFFIRMED.
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VICK—ARMY 20180530
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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