United States v. Gaston

UNITED STATES, Appellee
v.
Jamahl D. Gaston, Senior Airman
U.S. Air Force, Appellant
No. 05-0462
Crim. App. No. S30372
United States Court of Appeals for the Armed Forces
Argued December 7, 2005
Decided March 3, 2006
ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON, J., joined. BAKER, J., filed a
separate opinion concurring in the result, in which CRAWFORD,
J., joined.
Counsel
For Appellant: Captain Kimberly A. Quedensley (argued);
Lieutenant Colonel Mark R. Strickland (on brief); Colonel Carlos
L. McDade, Major Sandra K. Whittington, and Major James M.
Winner.
For Appellee: Captain Jefferson E. McBride (argued); Lieutenant
Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer
(on brief); Major John C. Johnson.
Military Judge: Daryl E. Trawick
This opinion is subject to revision before final publication.
United States v. Gaston, No. 05-0462/AF
Judge ERDMANN delivered the opinion of the court.
Senior Airman Jamahl D. Gaston was charged with absence
without leave terminated by apprehension and missing a movement
by design in violation of Articles 86 and 87, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 886, 887 (2000). He pled
guilty and was convicted on both charges before a military judge
at a special court-martial. He was sentenced to a bad-conduct
discharge, confinement for six months, a reduction in grade to
E-1, and partial forfeitures. Because the military judge failed
to inform Gaston that a reduction to E-1 was a possible
punishment in the case, the convening authority did not approve
the reduction but approved the remainder of the sentence as
adjudged. The Air Force Court of Criminal Appeals affirmed the
findings and sentence with a single modification which addressed
the forfeitures. United States v. Gaston, No. ACM S30372 (A.F.
Ct. Crim. App. Mar. 7, 2005).
This court will set aside a plea of guilty where there is
“a substantial basis in law and fact for questioning the guilty
plea.” United States v. Milton, 46 M.J. 317, 318 (C.A.A.F.
1997) (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A.
1991)) (quotation marks omitted). In order to establish that
Gaston’s absence from his unit was terminated by apprehension,
the facts on the record must establish that his return to
military control was involuntary. See United States v. Fields,
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United States v. Gaston, No. 05-0462/AF
13 C.M.A. 193, 196, 32 C.M.R. 193, 196 (1962). We granted
review to determine whether Gaston’s providence inquiry
established that he was guilty of absence without leave
terminated by apprehension. We also granted review to determine
whether the sentence affirmed by the Court of Criminal Appeals
was greater than the sentence approved by the convening
authority in violation of Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).1
BACKGROUND
The unauthorized absence charge alleged that Gaston “[d]id,
at or near OAFB [Offutt Air Force Base], Nebraska, [on or about]
13 Jan 03, without authority, absent himself from his place of
duty at which he was required to be, to wit: Bldg 457, Rm 700,
located at OAFB, NE and did remain absent until he was
apprehended [on or about] 17 Jan 03.” At a pretrial motion
hearing, Gaston testified regarding the termination of his
absence: “I was notified by the dorm director that everyone was
looking for me, and I immediately told him that I needed to get
1
We granted review of the following specified issues:
I. WHETHER APPELLANT’S GUILTY PLEA TO BEING
ABSENT FROM HIS PLACE OF DUTY AT WHICH HE
WAS REQUIRED TO BE AND TO HIS ABSENCE BEING
TERMINATED BY APPREHENSION WAS PROVIDENT.
II. WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS IMPROPERLY INCREASED APPELLANT’S
SENTENCE BY APPROVING A TWO-THIRDS
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United States v. Gaston, No. 05-0462/AF
dressed and meet him in the front. And when I did that, he said
he would call the Shirt to come down and pick me up, and they
did so.”
Gaston’s statements at the providence inquiry regarding the
unauthorized absence offense consist of the following:
I am guilty of this offense because on 13
January 2003, I remained absent from my
unit, which was the 38th Reconnaissance
Squadron. I was in my dorm room and just
did not leave. I was not supposed to be on
the base on 13 January 2003; however, since
I did not report to the location where I
should have been, I knew that I had a duty
to report to work that day and let my
squadron know I was there –- where I was. I
did not have proper authority from anyone
who could give me leave or permission to be
absent from my squadron, and I remained
absent in my room until 17 January 2003,
when the dorm manager came to my room and
told me that my squadron was looking for me.
I am confident that my absence was
terminated by apprehension because neither
me, nor anyone working on my behalf,
voluntarily told anyone where I was. I was
found when the squadron came looking for me.
The day before the beginning date for the unauthorized absence
offense, Gaston’s unit deployed to Saudi Arabia and his failure
to move with his unit formed the basis for the missed movement
charge.
The sentence imposed by the military judge included, in
part, “forfeiture of two-thirds pay per month for six months;
FORFEITURE OF PAY AT THE E-4 RATE RATHER
THAN AT THE E-1 RATE.
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United States v. Gaston, No. 05-0462/AF
and a reduction to E-1.” When the convening authority acted on
the sentence he was advised that Gaston had not been notified
that his sentence could include a reduction. To remedy this
error the convening authority approved all of the adjudged
sentence except for the reduction to E-1. On review, the Court
of Criminal Appeals noted that Rule for Courts-Martial (R.C.M.)
1003(b)(2) requires that a sentence which includes partial
forfeitures must state the dollar amount to be forfeited each
month, and that the military judge had erroneously referenced
“forfeitures of two-thirds pay per month for six months.” To
correct this error the lower court affirmed the sentence
approved by the convening authority, but instead of “two-thirds
pay” the court stated the forfeiture would be $1,053.00 per
month, an amount equal to two-thirds pay at the E-4 rate.
DISCUSSION
1. Termination of Absence by Apprehension
This court will set aside a plea of guilty if it finds that
there is “a substantial basis in law and fact for questioning
the guilty plea.” United States v. Milton, 46 M.J. 317, 318
(C.A.A.F. 1997) (quoting United States v. Prater, 32 M.J. 433,
436 (C.M.A. 1991)) (quotation marks omitted). Gaston contends
that it was not established at his providence inquiry that his
return to military control was involuntary and therefore there
was no basis for finding that his absence was terminated by
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United States v. Gaston, No. 05-0462/AF
apprehension. The Government responds that Gaston’s return to
military control was involuntary because it was not initiated by
him and that on this basis the court can find his plea to
absence terminated by apprehension was provident. This court
has stated:
“[a]pprehension” contemplates termination of the
accused’s absence in an involuntary manner; and
“termination otherwise” is an absence ended “freely
and voluntarily.” In other words, the Manual
provision does not differentiate between these two
classes of termination by means of particular
situations, but rather by way of a broad definition
for each category.
Fields, 32 C.M.R. at 196 (discussing United States v.
Nickaboine, 3 C.M.A. 152, 11 C.M.R. 152 (1953)). Based on this
differentiation, the military judge instructed Gaston,
“Apprehension means that your return to military control was
involuntary. It must be shown that neither you nor persons
acting at your request initiated your return.”
The lower court noted that the providence inquiry in this
case was “exceptionally brief and certainly not a model for how
such an inquiry should be conducted.” Gaston, No. ACM S30372,
slip op. at 1. Because of this, we will look to the entire
record to determine whether facts to support Gaston’s guilty
plea have been established. See United States v. Jordan, 57
M.J. 236, 239 (C.A.A.F. 2002) (“When this Court has addressed a
bare bones providence inquiry, we have not ended our analysis at
the edge of the providence inquiry but, rather, looked to the
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United States v. Gaston, No. 05-0462/AF
entire record to determine whether the dictates of Article 45,
RCM 910, and [United States v. Care, 18 C.M.A. 535, 40 C.M.R.
247 (1969)] and its progeny have been met.”).
Gaston’s providence inquiry established that “the dorm
manager came to my room and told me that my squadron was looking
for me.” He concluded that he was involuntarily apprehended
because “neither me, nor anyone working on my behalf,
voluntarily told anyone where I was. I was found when the
squadron came looking for me.” When testifying on a pretrial
motion Gaston stated that when the dorm manager told him that
“everyone was looking for me, . . . I immediately told him that
I needed to get dressed and meet him in the front. And when I
did that, he said he would call the Shirt to come down and pick
me up, and they did so.”
While these statements establish that it was the dorm
manager who initiated contact with Gaston, it does not
automatically follow that the contact with the dorm manager
constituted Gaston’s return to military control. The Manual for
Courts-Martial defines apprehension by military authority as
requiring apprehension “of a known absentee.” Manual for
Courts-Martial, United States pt. IV, para. 10.c.(10)(b) (2005
ed.). There is no evidence that the dorm manager knew that
Gaston was an absentee or that he knew anything other than that
Gaston was being sought by his squadron. Gaston did not make
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United States v. Gaston, No. 05-0462/AF
the dorm manager aware of his status as an absentee. See United
States v. Jackson, 1 C.M.A. 190, 192-93, 2 C.M.R. 96, 98-99
(1952) (finding that a servicemember who was tried and convicted
at a summary court-martial by one command, while he was absent
without leave from another command, has not had his absence
terminated because the command that exerted control over him was
not aware of his status as an absentee).
Article 7, UCMJ, 10 U.S.C. § 807 (2000), defines
apprehension as “the taking of a person into custody.” It
states that “[a]ny person authorized under regulations governing
the armed forces to apprehend persons subject to this chapter or
to trial thereunder may do so upon a reasonable belief that an
offense has been committed and that the person apprehended
committed it.” Article 7(b), UCMJ. Nothing in the record
establishes that the dorm manager believed Gaston had committed
an offense or that the dorm manager had the authority to take
him into custody. Without this authority, the mere fact that
the dorm manager made contact with Gaston while he was on base
and in his dormitory room is not sufficient to establish that
Gaston was under military control. See Jackson, 2 C.M.R. at 98
(“[A]n absentee’s casual presence at a military installation,
unknown to competent authority and for purposes primarily his
own, does not end his unauthorized absence.”).
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United States v. Gaston, No. 05-0462/AF
The dorm manager also did not take steps to take Gaston
into custody. Gaston’s statements to the military judge do not
establish that the dorm manager exerted military control over
him or control of any type. The dorm manager did nothing other
than tell Gaston that his squadron was looking for him when he
found him in his dorm room. The dorm manager did not give
Gaston any orders to turn himself in, to go anywhere, or to
remain where he was, and Gaston did not act pursuant to any
instruction or request by the dorm manager. See United States
v. Raymo, 1 M.J. 31, 32-33 (C.M.A. 1975) (finding exertion of
military control over a servicemember who was absent without
leave where an officer with authority to apprehend the
servicemember directed him to go speak to the FBI, and the
servicemember subsequently complied with that direction). Only
after Gaston said he would meet the dorm manager in front did
the manager say that he would call Gaston’s first sergeant.
Nothing in this encounter leads us to believe that Gaston was in
military custody or control based upon his brief contact with
the dorm manager.
We conclude that when the dorm manager told Gaston his
squadron was looking for him, Gaston voluntarily surrendered by
going to the front of the dorm where he met Colonel Kramer who
then read him his rights and placed him on restriction. Because
we conclude that Gaston’s absence was terminated by his
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United States v. Gaston, No. 05-0462/AF
voluntary surrender rather than by apprehension we affirm
Gaston’s conviction only for the lesser offense of absence
without authority terminated by surrender to military authority.
We further conclude that this error was harmless as to
sentencing. First, this change has no impact on the maximum
authorized sentence in this case which was limited by the
jurisdiction of the special court-martial. See Article 19,
UCMJ, 10 U.S.C. § 819 (2000). Additionally, in arguing on
sentencing trial counsel did not focus on the nature of Gaston’s
return to military control, but rather on the effect of his
actions on the morale of his unit and on other troops deployed
to the Middle East. Therefore, we affirm the sentence as
adjudged, subject to our resolution of Issue II below.
2. Sentencing Error
The sentence imposed by the military judge included, in
part, “forfeiture of two-thirds pay per month for six months;
and a reduction to E-1.” The military judge made two errors in
imposing this sentence. First, he failed to inform Gaston that
he could be sentenced to a reduction to E-1, and second, he
failed to state the sentence of partial forfeitures as a whole
dollar amount as required by R.C.M. 1003(b)(2). That rule also
provides that if a sentence includes a reduction then the
forfeiture should be based on the grade to which the accused is
reduced. Had the military judge complied with R.C.M. 1003(b)(2)
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United States v. Gaston, No. 05-0462/AF
and stated the forfeiture amount as a whole dollar amount at the
reduced grade of E-1, it would have been $767.00 per month.
The convening authority properly remedied the military
judge’s first error by disapproving that portion of the sentence
that included a reduction to E-1. However, he did not correct
the error regarding the statement of the forfeitures. The
convening authority, in taking action on a sentence, may
“approve, disapprove, commute, or suspend the sentence in whole
or in part.” He may not increase the sentence adjudged by the
court-martial. Article 60(c)(2), UCMJ, 10 U.S.C. § 860(c)(2)
(2000). The Staff Judge Advocate advised the convening
authority of this limitation, and “[i]n the absence of evidence
to the contrary, it is assumed that the convening authority
followed the law set out in his Staff Judge Advocate’s review.”
United States v. Johnson, 8 C.M.A. 173, 177, 23 C.M.R. 397, 401
(1957) (Quinn, J., concurring). We therefore conclude that when
the convening authority approved the sentence of “forfeitures of
two thirds pay per month” adjudged by the military judge he
approved a forfeiture of $767.00 per month for six months, which
was two-thirds of an E-1 monthly pay.
The Court of Criminal Appeals took note of the military
judge’s second error, but in fashioning a remedy the court
stated the whole dollar amount of the forfeitures as $1053.00
per month, or two-thirds of Gaston’s pay at the E-4 rate rather
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United States v. Gaston, No. 05-0462/AF
than the E-1 rate. A Court of Criminal Appeals “may act only
with respect to the findings and sentence as approved by the
convening authority.” Article 66(c), UCMJ. The sentence
approved by the convening authority included a bad-conduct
discharge, confinement for six months and forfeiture of two-
thirds of an E-1’s pay or $767.00 per month. Therefore, the
action of the Court of Criminal Appeals in imposing forfeitures
greater than those approved by the convening authority
improperly increased Gaston’s sentence in violation of Article
66(c).
DECISION
The decision of the Air Force Court of Criminal Appeals is
affirmed as to findings except that with regard to Charge I we
affirm only a conviction for the lesser offense of absence
without authority terminated by surrender to military authority.
We affirm only so much of the sentence as includes a bad-conduct
discharge, confinement for six months, and forfeitures of
$767.00 per month for six months.
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BAKER, Judge, with whom CRAWFORD, Judge, joins (concurring
in result):
The question presented is whether Appellant pled
providently to the charge of unauthorized absence terminated by
apprehension. This Court will not overturn a plea as
improvident unless there is a substantial basis in law or fact
for doing so. United States v. Harris, 61 M.J. 391, 398
(C.A.A.F. 2005). An appellant bears the burden of demonstrating
that such a substantial basis in law or fact exists. United
States v. Hays, 62 M.J. 158, 167 (C.A.A.F. 2005). I agree with
the majority that Appellant has done so; however, I write
separately to articulate why I believe this is a close case and
to distinguish my understanding of the facts from that presented
by the majority.
This Court’s case law regarding apprehension emphasizes
three factors in determining whether an unauthorized absence is
terminated by apprehension or not: (1) was the return to
military control voluntary?; (2) did the accused initiate his
return to military control?; and (3) was the military control
exercised over an accused a knowing control. United States v.
Fields, 13 C.M.A. 193, 196-97, 32 C.M.R. 193, 196 (1962); United
States v. Nickaboine, 3 C.M.A. 152, 156, 11 C.M.R. 152, 156
(1953). Depending on context, this Court has placed more or
less weight on each factor.
U.S. v. Gaston, No. 05-0462/AF
In this case, Appellant argues that the military judge
erred by accepting his plea to unauthorized absence terminated
by apprehension because the record establishes that Appellant
returned to military control voluntarily. At the very least,
Appellant argues, the record contains inconsistent facts that
warranted further inquiry before the military judge accepted
Appellant’s statement. I agree with this latter argument,
because there are just not enough facts in the record to fairly
infer whether Appellant was apprehended or voluntarily
surrendered.
In evaluating a plea, we look to the entire record,
including any fair inferences that can be drawn from the record.
United States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003).
The record is factually light. Three of Appellant’s statements
are relevant here:
A. I was notified by the dorm director that everyone was
looking for me, and I immediately told him that I needed to
get dressed and meet him in the front. And when I did
that, he said that he would call the Shirt to come down and
pick me up, and they did so.
Q. What happened after that?
A. I went down and went in front of Colonel Kramer, and he
read me my rights, and I was put on base restriction and
dorm restriction.
. . . .
A. . . . I remained absent in my dorm room until 17
January 2003, when the dorm manager came to my room and
told me that my squadron was looking for me. I am
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U.S. v. Gaston, No. 05-0462/AF
confident that my absence was terminated by apprehension
because neither me, nor anyone working on my behalf,
voluntarily told anyone where I was. I was found when the
squadron came looking for me.
On the one hand, based on these statements, the military
judge might well have concluded that Appellant’s apprehension
was involuntary because it was initiated by the dorm director
who had reason to know that Appellant was absent from his place
of duty. Otherwise, the dorm director would not have indicated
that he or she would call the First Sergeant to pick Appellant
up. One might well infer that a dorm director, whatever his
status or rank, would not expect the First Sergeant to come and
give the Appellant a ride to work, unless the Appellant were in
trouble. This reading of the record is supported by our case
law emphasizing “initiation” as determinative of apprehension.
See Fields, 13 C.M.A. at 196-97, 32 C.M.R. at 196. It is also
supported by Appellant’s statement to the military judge that “I
am confident that my absence was terminated by apprehension” and
Appellant’s acknowledgment that the First Sergeant picked him up
at the dorm.
On the other hand, one might also reasonably infer from
these same statements that Appellant voluntarily surrendered to
military control. Having been tipped off by the dorm director
that his command was looking for him, Appellant decided to get
dressed and asked the dorm director to meet him in the front.
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U.S. v. Gaston, No. 05-0462/AF
One might infer that Appellant exercised a voluntary choice, for
Appellant might also have gotten dressed and headed out the
backdoor. Or, he might have bought more time with the dorm
director by expressing surprise, thanking him for the
information, and then advising the dorm director that he would
find his own way to the unit before making his way to the front
gate.
Fair inferences can be drawn in either direction. One or
two more questions might have resolved this apparent
inconsistency between the initiation of Appellant’s surrender
and his voluntary arrival at the front door of his dorm. For
example, did the Appellant think he had a choice when the dorm
director arrived? Did the dorm director have the authority to
apprehend Appellant if need be? How much time elapsed between
the dorm director’s arrival and the First Sergeant’s? In light
of these uncertainties, there is a substantial basis in law as
well as in fact to question the plea to apprehension.
Nonetheless, for the reasons stated by the majority, the error
is harmless and I concur in the result.
4