DocketNumber： 01-0647-AF
Judges： Gierke, Effron, Baker, Crawford, Sullivan
Filed Date： 3/26/2002
Status： Precedential
Modified Date： 11/9/2024
delivered the opinion of the Court.
A general court-martial convicted appellant, pursuant to his pleas, of attempting to use a government credit card for personal use, using a government credit card for personal use, four specifications of dishonorably failing to maintain sufficient funds in his bank for payment of checks or drafts, and dishonorable failure to pay a debt to the Army and Air Force Exchange Service (AAFES), in violation of Articles 80, 92, and 134, Uniform Code of Military Justice, 10 USC §§ 880, 892, and 934, respectively. The adjudged and approved sentence provides for a dismissal from the service. The Court of Criminal Appeals affirmed in an unpublished opinion.
We granted review of the following issue specified by the Court:
WHETHER APPELLANT’S PLEA OF GUILTY TO SPECIFICATION 1 OF CHARGE III (DISHONORABLE FAILURE TO PAY A JUST DEBT) WAS IMPROVIDENT.
We hold that the plea of guilty was improvident.
The Guilty Plea Inquiry
The granted issue in this case involves appellant’s failure to make timely payments on his Deferred Payment Plan (DPP) account with AAFES. The military judge advised appellant of the elements of the offense as follows:
First, that you were indebted to the Army and Air Force Exchange Service in the sum of $428.45 for charges made on a deferred payment plan.
Second, that this debt became due and payable on or about the 9th of October of 1999.
Three, that at or near Osan Air Base, Republic of Korea, from about the 9th of October 1999 to about the 8th of December of 1999, while the debt was still due and payable, you dishonorably failed to pay the debt.
And, four, that under the circumstances your conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
The military judge did not define “dishonorable” as it applied to appellant’s failure to pay the AAFES debt. He had defined “dishonorable” as it applied to the bad checks,
A stipulation of fact recites the following regarding the AAFES debt:
7. Between 9 October and 8 December 1999, the Accused failed to pay a just debt to AAFES for charges he made on his Deferred Payment Plan (DPP) in the amount of $428.45. He did not make the payments because his prior bad checks had resulted in garnishments of his pay such that he could not make the DPP payments; he further did not attempt to work out an acceptable payment plan with AAFES. His failure to pay was dishonorable and was prejudicial to good order and discipline in the armed forces. Further, it was of a nature to bring discredit on the armed forces in that it had a tendency to diminish the esteem with which the Air Force is viewed by employees of AAFES and by others who might hear of his actions.[2]
8. The Accused’s checking account at Eisenhower National Bank was credited $1,185.06 on 1 July 1999, which was the*379 amount to which the Accused was entitled after his income tax, other deductions, and voluntary bank allotments were taken from his pay. As a result of recoupment actions initiated in June 1999 to pay other outstanding debts, he received $281.03 on 15 July 1999 and $281.01 on 30 July 1999. As a result of another recoupment action initiated in July 1999, he was paid $828.03 on August 13, 1999. His Eisenhower National Bank account was debited $367.36 on 15 July and 16 August 1999 to cover the Accused’s loan from the bank, and it was debited $21.95 on 6 July 1999 and 16 August 1999 to pay for his account with America Online.
9. The Accused borrowed money from his relatives and used some of his own pay to made [sic] deposits of $1060.00, $1000.00, $800.00 and $800.00 to the Osan Community Bank on 2 November 1999, 5 November 1999, 30 December 1999 and 1 February 2000, respectively. During this period, the Accused received a loan from the Air Force Aid Society to help him with his expenses. He brought [the] Community Bank account to a positive balance on 1 February 2000, when he closed his account there. Between 25 August 1999 and 7 March 2000, AAFES took amounts between $600.00 and $1896.00 from the Accused’s net monthly pay, which averaged from $2,400.00 to $2,600.00. These amounts, combined with cash payments to AAFES, were applied until the checks and service fees were repaid and his DPP card was current.
The military judge questioned appellant about his plea of guilty to this offense as follows:
MJ: Lets talk about Specification 1 of Charge III. Why don’t you tell me what happened on that?
ACC: Charge III, Specification 1,1 owed a debt of $428.45 to the Army, Air Force Exchange Service for charges made on my deferred payment plan. The sum became due on 9 October 1999, and from 9 October 1999 to 8 December 1999 I dishonorably failed to pay this amount of money to AAFES. My failure to pay this bill was of a nature to bring discredit upon the armed forces [in] that it had a tendency to diminish the esteem with which the Air Force is viewed by employees of AAFES and others who might hear of my actions.[3]
MJ: Now, apparently your bill with DPP was due somewhere around the 9th of each month is—
ACC: The 8th, yes, sir.
MJ: So, each month, at least beginning with the 9th of October you had a debt with AAFES under your deferred payment plan for $428.00?
ACC: Yes, sir, approximately.
MJ: And, you knew that you had that debt?
ACC: Yes, sir.
MJ: And, you knew that you had to make payments on a monthly basis?
ACC: Yes, sir.
MJ: Did you make any payments between the 9th of October of last year and the 8th of December of last year to AAFES to cover this payment plan?
ACC: No, sir. At the time, because of the fact of my gross indifference with the situations [sic] prior charges, I did not have any money in my account coming in to be able to pay that debt.
MJ: Well, did you try to pay it with anything other than the Eisenhower National Bank?
ACC: No, sir. I had no cash on hand.
MJ: Did you make any arrangements or even talk with people at AAFES about the debt?
[The Accused consulted with his defense attorneys.]
ACC: When I had went [sic] over to Air Force Aide [sic] to get money for them to help, Kermit Basel from the Family Support Center had called AAFES for me with me sitting there, and they said that they had already initiated garnishment on my account because the payments were so far past due. But, other than that, no, sir.
*380 MJ: When did that take place?
ACC: Sometime in November.
MJ: And, did, in fact, some kind of garnishment action take place where they were taking money out of your account?
ACC: Yes, sir.
MJ: But apparently it wasn’t enough to pay it until sometime after the 8th of December?
ACC: Total, yes, sir, because of the amount of money that was coming out of my paycheck for the garnishment and the allotment I had made to Community Bank. AAFES, in November and December took out almost $1,900.00 out of my pay in conjunction with the $800.00. I was doing an allotment to Community Bank where my pay in November for the 15th and the 1st of December was approximately $250.00 each paycheck, and then December was approximately $300.00 for the 15th and my 1 January paycheck was a dime. MJ: But, of all the money that AAFES was taking out, not all of that was going towards this debt under the payment plan, it was going towards the other checks as well — •
ACC: It was going for the checks, for the service fees and for the DPP.
MJ: Recognizing that they were doing what’s called an involuntary action on your part in taking the money out of your account, you did nothing other than that though in an attempt to pay the deferment?
ACC: No, sir, not until February.
MJ: Was there anything other than the obvious lack of money to prohibit you from working with AAFES to try to work out some sort of an arrangement—
ACC: No, sir. If I would have had the cash, I would have made the payments.
Unlike his inquiry into the bad-check offenses, the military judge did not further inquire why appellant believed that his failure to pay the AAFES debt was dishonorable.
Discussion
Appellant contends that his plea of guilty was improvident because the military judge failed to define “dishonorable” conduct, failed to elicit facts from appellant to establish that his conduct was dishonorable, and failed to resolve inconsistencies between appellant’s statements and his guilty plea. Final Brief at 7. The Government argues that the record as a whole reflects that appellant knew the elements of the offense and admitted them, and that there is a factual basis for the plea. Answer to Final Brief at 1, 8.
Article 45(a), UCMJ, 10 USC § 845(a), provides:
If an accused ... after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, ... a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty.
ROM 910(c), Manual for Courts-Martial, United States (2000 ed.) requires the military judge to inform the accused of the nature of the offense to which the guilty plea is offered. The rule implements United States v. Care, 18 USCMA 535, 541, 40 CMR 247, 253 (1969), requiring the military judge to question an accused “about what he did or did not do, and what he intended (where this is pertinent), to make clear the basis for a determination by the military trial judge ... whether the acts or the omissions of the accused constitute the offense ... to which he is pleading guilty.” See also United States v. Faircloth, 45 MJ 172, 174 (1996).
RCM 910(e) requires the military judge to make “such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea.” This rule implements United States v. Davenport, 9 MJ 364, 367 (CMA 1980), requiring that “the factual circumstances as revealed by the accused himself objectively support that plea [of
A mere possibility of a defense does not render a plea of guilty improvident. United States v. Prater, 32 MJ 433, 436 (CMA 1991). On appeal, a guilty plea should be overturned only if the record fails to objectively support the plea or there is “evidence in ‘substantial conflict’ with the pleas of guilty.” See United States v. Higgins, 40 MJ 67, 68 (CMA 1994). In deciding whether a plea is rendered improvident by statements inconsistent with the plea, the sole question is whether the statement was inconsistent, not whether it was credible or plausible. United States v. Lee, 16 MJ 278, 281 (CMA 1983).
A mere failure to pay a debt does not establish dishonorable conduct. United States v. Gardner, 35 MJ 300, 301 (CMA 1992). Even a negligent failure to pay a debt is not “dishonorable.” United States v. Kirksey, 6 USCMA 556, 560, 20 CMR 272, 276 (1955). In United States v. Downard, 6 USCMA 538, 542, 20 CMR 254, 258 (1955), this Court observed that “the term ‘dishonorable’ connotes a state of mind amounting to gross indifference or bad faith,” and that “simple negligence alone will not suffice.” This Court concluded:
Thus, the offense of dishonorable neglect to discharge pecuniary obligations contemplated that the failure to pay be characterized by deceit, evasion, false promises, denial of indebtedness, or other distinctly culpable circumstances.
Id. at 543, 20 CMR at 259.
These judicial definitions of dishonorable conduct are encapsulated in paragraph 71c, Part IV, Manual, supra, as follows:
More than negligence in nonpayment is necessary. The failure to pay must be characterized by deceit, evasion, false promises, or other distinctly culpable circumstances indicating a deliberate nonpayment or grossly indifferent attitude toward one’s just obligations.
In United States v. Schneiderman, 12 USCMA 494, 31 CMR 80 (1961), this Court held the following statement in extenuation and mitigation was inconsistent with a plea of guilty to dishonorable failure to pay debts:
[T]hat [appellant] overextended himself because of the easy credit terms made available to members of the naval service; that he tried to keep up his payments; that he was unable to do so; that he was required by a military order to pay off debts to other personnel; and, finally, that he had written his creditors and made satisfactory arrangements with them to liquidate his indebtedness.
This Court held:
The entire tenor of the declaration is inconsistent with any idea that accused’s failure to pay his creditors was fraudulent, deceitful, or evasive. Not only does it clearly depict that his nonfeasance was predicated upon an inability to pay, but it concludes with the statement that satisfactory arrangements had been made with his creditors. Both these factors are at odds with the allegation of dishonorable conduct to which he pleaded guilty.
Id. at 496, 31 CMR at 82 (emphasis added).
In United States v. Hilton, 39 MJ 97, 100 (CMA 1994), this Court recognized that financial inability to pay must be considered in determining whether failure to pay a debt is dishonorable. In Hilton, this Court found a guilty plea provident because, although the appellant asserted that she was unable to pay the debt, she admitted that she was receiving her full military pay of $724.20 per month, that the amount due was only $50.00, and that she deliberately avoided her creditors. Id. at 101.
Similarly, in United States v. Bester, 42 MJ 75, 77-78 (1995), this Court found a guilty plea provident, even though the appellant asserted inability to pay a debt. However, in Bester, the military judge elicited admissions from the accused that his military pay was stopped because he was absent without authority, that he was physically able to find work and pay the debt but did not do so,
Applying these precedents to appellant’s three-pronged attack on the providence of his guilty plea, we conclude that the plea is improvident. We agree with appellant that the military judge did not define the term “dishonorable” during his inquiry into the plea of guilty to dishonorably failing to pay the AAFES debt. The military judge did not mention the term as it applied to the debt, nor did he tell appellant whether the term as applied to the bad checks had the same meaning when applied to the debt.
We also agree with appellant’s claim that the military judge did not elicit a sufficient factual predicate for the guilty plea to dishonorably failing to pay the AAFES debt. Although appellant told the military judge he believed he was grossly indifferent to his various checking accounts because he did not keep a written check register, there is nothing in the plea inquiry showing why appellant believed that his conduct regarding the AAFES debt was “characterized by deceit, evasion, false promises, or other distinctly culpable circumstances indicating a deliberate nonpayment or grossly indifferent attitude.” Para. 71c, Part IV, Manual, supra.
Rather than elicit facts about appellant’s efforts to pay the debt, the military judge elicited only legal conclusions, in which appellant repeated verbatim the conclusions in the written stipulation of fact, to wit: “I dishonorably failed to pay this amount of money to AAFES. My failure to pay this bill was of a nature to bring discredit upon the armed forces [in] that it had a tendency to diminish the esteem with which the Air Force is viewed by employees of AAFES and others who might hear of my actions.” We hold that this rote recitation of the elements of the offense was inadequate. See United States v. Outhier, supra.
Finally, we agree that appellant made statements and stipulated to facts inconsistent with dishonorable conduct. The most obvious is appellant’s assertion, “If I would have had the cash, I would have made the payments.” The stipulation of fact shows that appellant’s difficulties with his cheeking accounts began in April of 1997, two-and-a-half years before the first AAFES debt was overdue.
The facts in this case are strikingly similar to those in Schneiderman, supra, except for the existence of a mutually agreeable payment plan, which was preempted by AAFES’s actions in this case. This record is significantly different from the records in Hilton and Bester, supra. Unlike the Hilton record, this record shows that garnishments and the AAFES involuntary collections substantially reduced appellant’s military pay. During the plea inquiry, appellant told the military judge that AAFES withheld “almost $1900” from his pay in November and December. He received only about $250 on November 15 and December 1, $300 on December 15, and ten cents on January 1. Unlike the Hilton and Bester records, this record shows that appellant dealt forthrightly with AAFES officials and did not attempt to deceive or avoid them. To the contrary, his representative contacted AAFES about the possibility of voluntary repayment. Unlike the Hilton and Bester records, this record shows that appellant borrowed money to pay
Because the military judge failed to define dishonorable conduct with respect to the AAFES debt, failed to elicit a factual predicate for dishonorable conduct regarding the debt, and failed to resolve the inconsistencies between appellant’s responses and his guilty plea, we hold that appellant’s guilty plea to this offense was improvident.
Decision
The decision of the United States Air Force Court of Criminal Appeals is reversed as to specification 1 of Charge III and as to sentence, but is affirmed in all other respects. The finding of guilty of specification 1 of Charge III and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may either dismiss specification 1 of Charge III and reassess the sentence, or it may order a rehearing.
. During the inquiry into appellant’s pleas of guilty to the bad-check offenses, the military judge advised him that the term "dishonorable” means "a failure which is fraudulent, deceitful, a willful evasion, made in bad faith, deliberate, based on false promises, or which indicates a grossly indifferent attitude towards the status of one’s bank account and that person's just obligations.”
2. These two sentences regarding dishonorable conduct, prejudice to good order and discipline, and discredit on the armed forces are repeated in the stipulation of fact for each of the bad-check offenses, as well as the failure to pay the debt to AAFES.
3. The last sentence of this response is virtually identical to appellant’s response regarding each of the bad-check offenses and is virtually identical to the language of the stipulation of fact.
. In the stipulation of fact, appellant admitted that the bad checks were the result of his "gross indifference to his financial obligations.” During the plea inquiry, appellant told the military judge that he was grossly indifferent to the status of his checking account balance because he did not keep a check register but "attempted to do so in [his] head.”
. In his unsworn statement during the sentencing hearing, appellant stated that his financial difficulties began in April 1997, when he assumed almost $49,000 in credit card debt as a result of a divorce.