United States v. Bickley

Judge CRAWFORD

delivered the opinion of the Court.

Pursuant to his pleas, appellant was convicted of one specification each of assault with a dangerous weapon and violation of a lawful general regulation, in violation of Articles 128 and 92, Uniform Code of Military Justice, 10 USC §§ 928 and 892, respectively. The convening authority approved the sentence of a bad-conduct discharge, eight months’ confinement, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.

We granted review of the following issue: WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO INQUIRE INTO THE MISTAKE OF LAW DEFENSE THAT WAS CLEARLY RAISED BY THE FACTS CONCERNING CHARGE I AND ITS SPECIFICATION (VIOLATION OF A LAWFUL GENERAL REGULATION).

We hold that appellant’s plea was provident.

FACTS

During an inspection held on June 18, 1996, a .22 caliber rifle was found in appellant’s barracks room. Paragraph 2-4 of Fort Stewart Regulation 190-2 (27 October 1995), provides in pertinent part:

a. It is prohibited for any person, military or civilian, to possess or store ammunition [or] firearms ... in locations other than those locations specified in paragraph 3-1, except under conditions specified in paragraph 3-2. Prohibited locations for these items include, but are not limited to, living spaces and common areas of billets, squad rooms, privately owned vehicles, exterior storage sheds, camper trailers, and offices.

b. Commanders will designate an arms rooms [sic] and times for weapons turn-in. During periods when arms rooms are closed, the Staff Duty Officer (SDO) will ensure the weapon is secured in accordance with (IAW) this regulation.

(Emphasis added.)

During the factual inquiry into appellant’s plea of guilty to violation of this regulation, appellant testified under oath that he had been storing the weapon at his girlfriend’s residence, but she returned the weapon to him at 0130 hours on the morning of the inspection. He had placed the weapon in his locker intending to return it to the arms room when it opened at 0900 hours.

During sentencing, appellant testified: “I heard — I thought I heard prior to this that, you know, you had until 0900 in the morning to turn [the weapon] in, which I later read— in one of the [Training Manuals] it had 72 hours [sic].”

No further statement was made concerning this testimony. However, as part of his post-trial clemency submission, appellant noted that his brief utterance during sentencing about this belief came from a commander’s memorandum posted outside the arms room, which stated:

Personnel residing in troop billets may also possess such weapons/ammunition ... but they must be stored in the unit arms room within 24 hours of arrival in the unit or of obtaining the weapon. These weapons must be registered with the Hunter AAF Provost Marshal Office within three normal working days.

(Emphasis added.)

The defense contends once appellant merely mentioned his belief that he could hold the weapon until 0900 hours, or up to 72 hours, the judge had a sua sponte obligation to ensure that he had not raised the defense of mistake of law.

DISCUSSION

In examining the providence of a guilty plea, this Court has noted that “[t]he factual predicate is sufficiently established if ‘the factual circumstances as revealed by the accused himself objectively support that plea....’” United States v. Faircloth, 45 MJ 172, 174 (1996), quoting United States v. Davenport, 9 MJ 364, 367 (CMA 1980). Furthermore, in United States v. Prater, 32 MJ 433, 436 (CMA 1991), this Court stated that “[t]he bottom line ... is that rejection of the plea requires that the record of trial show a ‘substantial basis’ in law and fact for questioning the guilty plea.” Also, in Faircloth, this Court stated that “[w]e will not overturn a military judge’s acceptance of a guilty plea on a ‘mere possibility’ of a defense.” 45 MJ at 174.

Appellant commented during sentencing that he “thought [he] heard prior to this” that weapons could be retained overnight until 0900 hours. However, appellant’s vague and ambiguous musings do not provide a “‘substantial basis’ in law and fact for questioning the guilty plea.” He fully and freely admitted that his actions violated each of the elements of the offense charged. See Prater, supra at 436. At best, his comments present a mere possibility of a defense, upon which we will not overturn a finding of guilty.

In Prater, the appellant challenged the providency of his guilty plea in a false-official-statement case by attempting to show, post-trial, that the statement was not official. Judge Sullivan, in his opinion for the Court, emphasized that, where the argument on appeal “contradicts [the] appellant’s trial admission of guilt to making a false official statement,” and where, “because of these guilty pleas, the record of trial was not fully developed concerning the existence of any particular regulatory duty” on the appellant, “post-trial speculation on the question of the officiality of the statements is not appropriate.” Id. at 437-38.^*

The dissenting opinion relies extensively on speculation and on matters that were filed post-trial. The concerns noted in the dissent could have been taken into account had appellant raised them at trial and contested his guilt. He chose not to do so, and under Prater, it is not appropriate for him to do so on appeal.

DECISION

qhe decision of the United States Army ^ Criminal A ls is affirmed.

* Appellant has not argued on appeal that the commander’s memorandum, quoted earlier, implemented the post regulation in such a manner that, as a matter of law, his actions did not violate the regulation. Instead, the granted issue is limited to reviewing the providence of his plea.