United States v. Phillippe

UNITED STATES, Appellee
v.
Jeremy M. PHILLIPPE, Private
U.S. Army, Appellant
No. 05-0674
Crim. App. No. 20040616
United States Court of Appeals for the Armed Forces
Argued March 21, 2006
Decided July 18, 2006
BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Stephen P. Watkins (argued); Colonel
John T. Phelps II, Lieutenant Colonel Kirsten V. C. Brunson, and
Captain Billy B. Ruhling II (on brief).
For Appellee: Captain Flor M. Suarez (argued); Lieutenant
Colonel Theresa A. Gallagher and Major William J. Nelson (on
brief).
Military Judge: Gregory A. Gross
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v Phillippe, No. 05-0674/AR
Judge BAKER delivered the opinion of the Court.
Appellant was tried by special court-martial before a
military judge alone. In accordance with his pleas, he was
convicted of one specification of unauthorized absence in
violation of Article 86, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 886 (2000). The adjudged and approved
sentence included a bad-conduct discharge, confinement for
ninety days, forfeitures of $795.00 pay per month for three
months, and reduction to grade E-1. The United States Army
Court of Criminal Appeals found no error and affirmed. United
States v. Phillippe, No. ARMY 20040616, slip op. at 4 (A. Ct.
Crim. App. July 26, 2005). We granted review of the following
issue:
WHETHER THE MILITARY JUDGE ERRED IN ACCEPTING THE
APPELLANT’S PLEA OF GUILTY TO A PERIOD OF UNAUTHORIZED
ABSENCE FROM 24 JULY 2001 TO 31 MARCH 2004 WHEN, IN
SENTENCING, APPELLANT INDICATED THAT HE RETURNED OR
ATTEMPTED TO RETURN TO MILITARY CONTROL ON THREE SEPARATE
OCCASIONS DURING THE CHARGED PERIOD OF UNAUTHORIZED
ABSENCE.
We hold that the military judge erred in accepting
Appellant’s guilty plea with respect to the termination date.
However, we affirm guilt to a shorter period of unauthorized
absence, and we remand to the United States Army Court of
Criminal Appeals for reassessment under United States v. Sales,
22 M.J. 305, 307-08 (C.M.A. 1986).
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BACKGROUND
Appellant pled guilty to an unauthorized absence from July
24, 2001 to March 31, 2004. During the plea inquiry, Appellant
stated to the military judge that, after he requested and was
denied leave, he left without authority to pursue his fiancée.1
The military judge accepted Appellant’s guilty plea and found
him guilty by exceptions and substitutions with regard to the
termination date.2 During sentencing, Appellant opted to make an
unsworn statement in which he said:
I also tried to turn myself in while I was up there
[in Montana] at an Air Force Base, after the 9/11
bombing, but they just told me there was nothing they
could do for me because there was no warrant out for
my arrest and I did not have my military ID card on
me. That they -- there was nothing to do, I would
just have to wait until something happened. And then,
I finally made -- got the means to get back to
Illinois around June or July of 2002, sir. And I went
back to Illinois and tried to meet up with the
hometown recruiter who recruited me into the military.
He ended up telling me I was to sign papers and he was
supposedly faxing them down to here trying to help me
take care of my situation, which nothing ever got done
1
In his unsworn statement, Appellant provided additional detail
on this point:
My reasoning for leaving was [my] fiancée at the time
had taken all my belongings from back home and took
off and moved to Montana without notifying me or
anything. And I felt that it was in my best means to
go and retrieve all of my belongings and to try and
secure them back at my home of record.
2
During the plea inquiry, the military judge established through
Appellant that, although Appellant did not arrive back at Fort
Polk until April 6, 2004, he turned himself in to civilian
authorities on March 31, 2004.
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on that. I finally just decided to take the means in
my own hands and call up to Fort McCoy and see what I
needed to do about turning myself in and how my
situation was.
The military judge did not reopen the plea inquiry to question
Appellant about any prior attempts to return to military control
and the court-martial continued to adjournment.
On review, the lower court rejected Appellant’s argument
that his absence terminated when he presented himself to Air
Force authorities in Montana. Phillippe, No. ARMY 20040616,
slip op. at 4. The lower court found that the military judge
should have explained the law of voluntary termination to
Appellant and obtained admissions of fact from him to
“unambiguously negate” the applicability of the defense but that
the failure to do so did not create a substantial basis in law
and fact to reject Appellant’s plea. Id. at 3-4. The lower
court characterized the facts in the following fashion:
In connection with appellant’s actions in Montana, we
note that appellant did not assert that he personally
presented himself to a military authority with power
to apprehend him, as required by our precedent in
Rogers and Coglin. We also note that appellant did
not assert that he personally presented himself to his
“hometown recruiter,” but only that he “tried to meet
up” with him. In neither circumstance did appellant
ever submit to actual or constructive military
control. As such, appellant’s assertions evince
nothing “more than an inchoate desire to return at an
earlier date.” United States v. Acemoglu, 21
U.S.C.M.A. 561, 563, 45 C.M.R. 335, 337 (1972). . . .
[W]e conclude that appellant’s unsworn statement
raises no more than the “mere possibility” that he
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terminated his unauthorized absence on one or more
occasions. Faircloth, 45 M.J. at 174.
Id. at 4.
On appeal to this Court, Appellant argues that his unsworn
statement raised matter inconsistent with his plea. According
to Appellant, the inconsistency was a defense to the extended
period of unauthorized absence, and he analogizes the facts of
his case to those of United States v. Reeder, 22 C.M.A. 11, 46
C.M.R. 11 (C.M.A. 1972).
In response, the Government agrees with Appellant that the
military judge erred by failing to resolve the apparent
inconsistencies between Appellant’s plea and his unsworn
statement. However, the Government’s position is that the error
was harmless because any inconsistencies do not create a
“substantial basis in law or fact” to question the sufficiency
of Appellant’s plea. Finally, the Government argues that, even
if this Court were to disagree, we should amend the findings of
guilt to reflect multiple unauthorized absences, rather than
just one, with no effect on the maximum authorized punishment or
the sentence.
DISCUSSION
“A military judge’s decision to accept a guilty plea is
reviewed for an abuse of discretion.” United States v. Eberle,
44 M.J. 374, 375 (C.A.A.F. 1996) (citing United States v.
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United States v Phillippe, No. 05-0674/AR
Gallegos, 41 M.J. 446 (C.A.A.F. 1995)). “Pleas of guilty should
not be set aside on appeal unless there is ‘a substantial basis
in law and fact for questioning the guilty plea.’” Id.(quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A.
1991)).
“If an accused ‘sets up matter inconsistent with the plea’
at any time during the proceeding, the military judge must
either resolve the apparent inconsistency or reject the plea.”
United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996)
(quoting Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2000)); see
Rule for Courts-Martial (R.C.M.) 910(h)(2). Once a military
judge has accepted a plea as provident and has entered findings
based on it, this Court will not reverse that finding and reject
the plea unless it finds a substantial conflict between the plea
and the accused’s statements or other evidence on the record.
Garcia, 44 M.J. at 498. “A ‘mere possibility’ of such a
conflict is not a sufficient basis to overturn the trial
results.” Id. (quoting Prater, 32 M.J. at 436).
The elements of unauthorized absence under Article 86,
UCMJ, are:
(a) That the accused absented himself or herself from
his or her unit, organization, or place of duty 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
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(c) That the absence was for a certain period of time.
Manual for Courts-Martial, United States pt. IV, para. 10.b.(3)
(2005 ed.) (MCM). Unauthorized absence can be terminated in
five ways, including surrender to military authority. MCM pt.
IV, para. 10.c.(10). According to the MCM, “surrender occurs
when a person presents himself or herself to any military
authority, whether or not a member of the same armed force,
notifies that authority of his or her unauthorized absence
status, and submits or demonstrates a willingness to submit to
military control.” MCM pt. IV, para. 10.c.(10)(a).
The issue in this case is whether the military judge should
have inquired further into the providence of Appellant’s plea,
in light of his unsworn statement. Even if an accused does not
volunteer all the facts necessary to establish a defense, if he
sets up matter raising a possible defense, then the military
judge is obligated to make further inquiry to resolve any
apparent ambiguity or inconsistency. See Prater, 32 M.J. 436.
Only after the military judge has made this inquiry can he then
determine whether the apparent inconsistency or ambiguity has
been resolved.3 However, to answer this question, there must be
3
The Government, relying on the lower court’s treatment of the
case, argued that Appellant’s unsworn statement did not state
the necessary facts to find surrender by voluntary termination.
However, before this determination can be made as to such a
defense, there must be adequate facts on the record. See
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sufficient information on the record from which to arrive at
this conclusion. Several cases decided by this Court illustrate
these points.
In Reeder,4 this Court invalidated a guilty plea to
unauthorized absence for a period of over two years where
the lower court found that the accused had surrendered
himself to military control six days after initially
absenting himself. 22 C.M.A. at 12-13, 46 C.M.R. at 12-13.
While agreeing with the lower court that there was
sufficient information on the record to find that the
accused submitted himself to military control after six
days, this Court stated that, at the very least, the
accused’s statements during the plea inquiry “obligated the
military judge to make further inquiry to determine the
full extent of the inconsistency, and, absent the accused’s
withdrawal of his avowals, to reject the plea.” Id. at 13,
46 C.M.R. at 13.
In United States v. Pinero, we reversed where an
Prater, 32 M.J. at 436. Here, there were not because the
military judge failed to make further inquiry of Appellant to
resolve the apparent inconsistencies created by his unsworn
statement.
4
The rationale in Reeder pertaining to a separate issue of
finding multiple shorter periods of unauthorized absences within
the longer one alleged was abrogated in United States v.
Francis, 15 M.J. 424, 429 (C.M.A. 1983). The additional
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appellant’s statements during the providence inquiry established
that he in fact returned to military control for five hours amid
an otherwise continuous period of unauthorized absence. 60 M.J.
31, 34 (C.A.A.F. 2004). “Termination was not merely a
‘possible’ defense here -- the judge secured a factual basis
establishing that Appellant was, for a five-hour period, not
guilty of unauthorized absence.” Id. Therefore, in Pinero, the
problem was not that the military judge did not inquire further,
but rather that he reached the wrong conclusion.
We long ago recognized the congressional rationale
buttressing Article 45, UCMJ. “The statute ‘manifest[s] a
congressional intent that guilt be acknowledged consistently
from the pleas through the sentence.’” Reeder, 22 C.M.A. at 13,
46 C.M.R. at 13 (citing United States v. Thompson, 21 C.M.A.
526, 528, 45 C.M.R. 300, 302 (1972)). As we stated in Pinero,
Article 45, UCMJ, like United States v. Care, 18 C.M.A. 535,
539, 40 C.M.R. 247, 251 (1969), is addressed to the military
context:
The military justice system takes particular care to
test the validity of guilty pleas because the facts
and the law are not tested in the crucible of the
adversarial process. Further, there may be subtle
pressures inherent to the military environment that
may influence the manner in which servicemembers
exercise (and waive) their rights. The providence
inquiry and a judge’s explanation of possible defenses
rationale in Reeder pertinent to the issue in this case,
however, retains its vitality.
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are established procedures to ensure servicemembers
knowingly and voluntarily admit to all elements of a
formal charge.
60 M.J. at 33. As a result, when, either during the plea
inquiry or thereafter, and in the absence of prior disavowals,
see, e.g., Garcia, 44 M.J. at 499, circumstances raise a
possible defense, a military judge has a duty to inquire further
to resolve the apparent inconsistency.
Turning to the case at hand, Appellant’s statement raised
the possibility that either he surrendered to military
authorities and returned to military control, as in Pinero, or
that he tried to, as in Reeder. This would have ended
Appellant’s initial period of unauthorized absence on or about
September 11, 2001, rather than two-and-a-half years later on
March 31, 2004. For sure, as the Government argues, the facts
are not sufficiently developed in the record to determine
whether such a defense was available. Upon further inquiry, the
military judge may have found that Appellant did not voluntarily
terminate his unauthorized absence at the Air Force base.5 But
Appellant’s statement lays out the elements of a possible
defense to a multi-year unauthorized absence. Surrender occurs
5
Because Appellant’s statements about his interaction with Air
Force personnel in Montana are sufficient to raise a substantial
question in law and fact as to the sufficiency of the plea, we
do not reach the issue of what effect Appellant’s statements
about his interactions with the hometown recruiter in Illinois
might have had on the sufficiency of the plea.
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when a person presents himself to any military authority
(whether or not a member of the same service), notifies that
authority of his unauthorized absence, and demonstrates a
willingness to submit to military control. MCM pt. IV, para.
10.c.(10)(a). Here, Appellant stated that he tried to turn
himself in at an Air Force base, “but they just told me there
was nothing they could do for me because there was no warrant
out for my arrest.” This language suggests that: (1) Appellant
was physically present at the military installation; (2)
Appellant advised someone he deemed authoritative that he was
absent without leave (“they” checked for a warrant); and (3)
Appellant expressed a willingness to return to military control.
In such circumstances, and in the absence of further inquiry by
the military judge, we cannot be confident that Appellant did
not terminate his unauthorized absence prior to March 31, 2004.
As a result, there remains a substantial basis in law and fact
to question Appellant’s plea to an unauthorized absence
terminating on March 31, 2004.
The Termination Date
Unauthorized absence under Article 86, UCMJ, is not a
continuing offense. Francis, 15 M.J. at 427. “[T]he length of
an unauthorized absence is the essential element in determining
the legal punishment for the offense.” Id. “[T]he [MCM]
authorizes increased punishments based upon, among other things,
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the duration of the absence.” United States v. Hardeman, 59
M.J. 389, 391-92 (C.A.A.F. 2004); see MCM pt. IV, para. 10.e.
“A military judge may find multiple absences within a
single charged period so long as the maximum authorized
punishment does not exceed that for the longer period.” Pinero,
60 M.J. at 34 (citing Francis, 15 M.J. at 429); see MCM pt. IV,
para. 10.c.(11) (“Findings of more than one absence under one
specification. An accused may properly be found guilty of two
or more separate unauthorized absences under one specification,
provided that each absence is included within the period alleged
in the specification and provided that the accused was not
misled.”). However, the ability to do so is premised on the
ability of this Court to determine from the record an inception
date for each separate period of unauthorized absence. An
inception date is necessary to establish the offense. See
Hardeman, 59 M.J. at 391 (citing United States v. Harris, 21
C.M.A. 590, 593, 45 C.M.R. 364, 367 (1972)). Here, while there
are sufficient facts to determine that Appellant was absent from
July 24, 2001, until at least September 11, 2001,6 there are
6
By his own admission, Appellant was absent without
authorization from July 24, 2001, to at least September 11,
2001. During the plea inquiry, the military judge and Appellant
had the following exchange:
MJ: Okay, now when was that that [sic] you left your
unit?
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insufficient facts to determine when Appellant initiated a
subsequent period of unauthorized absence. Therefore, we affirm
only one period of unauthorized absence, from July 24, 2001,
until on or about September 11, 2001.
DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed only as to a finding of guilt to an
unauthorized absence ending on or about September 11, 2001. The
decision is set aside with respect to the sentence. The record
of trial is returned to the Judge Advocate General of the Army
for remand to the United States Army Court of Criminal Appeals
ACC: Around the 24th of July, I am not sure of the
date, sir, exactly.
MJ: But it was on or about the 24th of July of 2001,
though?
ACC: Yes, sir.
. . . .
MJ: Okay. At any time between the 24th of July of
2001 and the 31st of March of 2004 did you have
authority to be absent from your unit?
ACC: No, I did not, sir.
MJ: Did you think that you had authority to be gone?
ACC: No, I did not, sir.
As noted, during his unsworn statement, Appellant indicated that
he tried to turn himself in to military authorities on or about
September 11, 2001, at an Air Force base in Montana.
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for reassessment under Sales, 22 M.J. at 307-08, or a rehearing
may be ordered if appropriate.
14