Adam S. Childers v. State of Arkansas

2020 Ark. 241, 602 S.W.3d 90

• Court: Supreme Court of Arkansas
• Decided: June 11, 2020
• Status: Published

Opinion

Cite as 2020 Ark. 241 SUPREME COURT OF ARKANSAS Docket No.: CR-19-52

Opinion Delivered: June 11, 2020

ADAM S. CHILDERS APPEAL FROM A GENERAL APPELLANT COURT-MARTIAL OF THE ARKANSAS ARMY NATIONAL V. GUARD

STATE OF ARKANSAS [NO. GCMCO 2018-01-JFHQ] APPELLEE COLONEL STEVEN ZEGA, MILITARY JUDGE

REVERSED AND DISMISSED,

JOSEPHINE LINKER HART, Associate Justice

A court-martial convened by the Arkansas Army National Guard (hereafter, the

“Arkansas Guard”) convicted Chief Warrant Officer 4 Adam S. Childers (Childers), a

member of the Arkansas Guard, of various charges and specifications. Childers, who is also

employed as a federal technician at the Arkansas Aviation Facility, appeals from a finding of

guilty of two specifications of cruelty and maltreatment and two specifications of failure to

obey an order or regulation.

At the court-martial proceedings, Childers entered a negotiated plea of guilty to these

charges, but specifically reserved his right to appeal. On appeal to this court, Childers argues

that because he was not in a “duty status” at the time of the incident that led to his court-

martial, the court-martial lacked jurisdiction over him. We agree. As to the charges and

specifications Childers is appealing, we reverse the lower tribunal’s determination on

jurisdiction and dismiss. I. Factual and Procedural History

Childers’ alleged offenses occurred on December 12, 2016, between 6:00 p.m. and

midnight in Norman, Oklahoma. On the morning of December 12, Childers, together

with other co-employees of the Arkansas Aviation Facility who were also members of the

Arkansas Guard, gathered at Camp Robinson at 7:00 a.m. This was the standard time and

place for weekend inactive-duty training (“IDT”) for Arkansas Guardsmen. The small group

that gathered on December 12 did so in anticipation of traveling as a group to a National

Guard Bureau Aviation Safety and Standardization conference in Norman, Oklahoma.

Childers attended this conference under the Additional Flight Training Period Program

(“AFTPP”). Pay and allowances for AFTPPs are authorized as IDT for purposes of U.S.C.

Title 32.

Childers and the others who traveled with him rode to the conference in an SUV

owned by the Arkansas Guard. This group was traveling to the conference under

AFTPP/IDT status. Their AFTPP/IDT status did not change when they loaded into the

SUV and left the Camp Robinson premises. Neither did their pay status. Both their duty

status and pay status remained the same from their 7:00 a.m. gathering time until they arrived

at the conference at 6:00 p.m. Likewise, payment for meals and lodging during the

performance of AFTPP/IDT does not alter a member of the Arkansas Guard’s status.

Instead, that reimbursement for cost expended by a member of the Arkansas Guard is

provided based on where the mission for the training period is located in relation to the

home-duty station—in this instance the distance between Norman, Oklahoma, and Camp

Robinson. Childers’ AFTPP/IDT records reflect that on December 12, 2016, he was paid

2 for participation in the program from 7:00 a.m. to 11:00 a.m. and then again from 11:01

a.m. to 6:00 p.m. Childers was subject to no other military orders on December 12.

The principal allegation against Childers is that sometime between 6:00 p.m. and

midnight on December 12, he sexually assaulted another member of his unit who was also

attending the conference. The charge sheet from Childers’ court-martial proceedings

reflects that he was initially charged with four specifications of “Sexual Misconduct” under

Ark. Code Ann. § 12-64-845, two specifications of “Cruelty and Maltreatment” under Ark.

Code Ann. § 12-64-818, and two specifications of “Failure to Obey Order or Regulation”

under Ark. Code Ann. § 12-64-817.

Childers filed a motion to dismiss arguing that he was not on active duty or Title 32

status at the time the alleged charges would have occurred. The military judge denied

Childers’ motion to dismiss. After this denial, Childers entered a negotiated guilty plea,

with various terms. Childers pleaded guilty to the charges and specifications for Cruelty

and Maltreatment and Failure to Obey Order or Regulation. The charges and specifications

for Sexual Misconduct were dismissed. Finally, Childers specifically reserved the right to

appeal the military judge’s decision on jurisdiction.1 The military judge accepted Childers’

plea2, and Childers exercised his negotiated right to appeal.

1 Childers does not appeal the military judge’s determination of guilt as to Specification II of Charge III for Failure to Obey Order or Regulation. This opinion has no application to that specific determination of guilt. 2 The military judge sentenced Childers to dismissal from the Arkansas Guard, confinement for a period of 180 days, a fine of 100 percent of all base pay and allowances for 180 days, and a punitive reprimand.

3 II. Appellate Jurisdiction

At the time of the alleged offenses, Ark. Code Ann. § 12-64-402 (Repl. 2015)

provided:

(a) Each force of the organized militia has court-martial jurisdiction and powers over all persons subject to this code and shall follow the forms and procedures provided for similar courts of the United States Army and United States Air Force.

Turning to the forms and procedures for tribunals of the United States Military, Rule

910(a)(2) from the United States Manual for Courts-Martial governs conditional pleas. It

states,

(2) Conditional pleas. With the approval of the military judge and the consent of the Government, an accused may enter a conditional plea of guilty, reserving the right, on further review or appeal, to review of the adverse determination of any specified pretrial motion.

These provisions provide for an appeal from a negotiated guilty plea that reserves the right

to appeal an adverse determination of any specified pretrial motion. However, this appears

to conflict with other provisions incorporated through Ark. Code Ann. § 12-64-

714(a)(1)(B). Arkansas Code Annotated § 12-64-714(a)(1)(B) provides that the Arkansas

Rules of Appellate Procedure–Criminal shall apply to all appeals to the supreme court and

court of appeals. Arkansas Rule of Appellate Procedure–Criminal 1 then provides that there

shall be no appeal from a guilty plea except as provided in Arkansas Rule of Criminal

Procedure 24.3(b). None of the exceptions contemplated by Rule 24.3(b) would apply in

this instance.

In other words, Ark. Code Ann. § 12-64-402 and Rule 910(a)(2) from the United

States Manual for Courts-Martial contemplate that Childers could enter a negotiated guilty

4 plea and still appeal the court-martial’s denial of his motion to dismiss for lack of jurisdiction.

On the other hand, Ark. Code Ann. § 12-64-714(a)(1)(B) and our rules of criminal

procedure for appellate and trial courts do not contemplate the availability of an appeal in

this situation. Considering the explicit availability of this procedure in United States court-

martial proceedings and Ark. Code Ann. § 12-64-402’s endorsement thereof, we resolve

this conflict in favor of Childers. While our rules of criminal procedure for trial courts may

not have contemplated their application to court-martial proceedings,3 Childers nonetheless

has an independent statutory right to the procedure of a negotiated guilty plea reserving the

right to appeal in a court-martial proceeding. Ark. Code Ann. § 12-64-402 (Repl. 2015);

Rule 910(a)(2)—United States Manual for Courts-Martial. We now address the merits of

Childers’ appeal.

III. Court-Martial Jurisdiction

The question presented on appeal is whether Childers was subject to the Arkansas

Guard’s court-martial jurisdiction under the law in effect at the time of the alleged offenses.

This court reviews a lower tribunal’s determination of jurisdiction de novo on appeal. A

court-martial is a tribunal of limited jurisdiction, and the bounds of court-martial jurisdiction

are set by the legislature. As to the general court-martial authority for the Arkansas Guard,

Ark. Code Ann. § 12-64-801 provides that “[n]o person may be tried or punished for any

3 The dissent suggests that we reject Childers’ appeal and refer the conflict to our Committee on Rules of Criminal Procedure for future cases, but this approach would implicate due process concerns with respect to Childers’ case. There have been developments in this area of law since the facts of Childers’ case transpired, but we do ask that our Committee on Rules of Criminal Procedure address this situation at its first opportunity and clarify any remaining conflicts or ambiguities.

5 offense provided for in this code, unless it was committed while he or she was in a duty

status.” At the time of the alleged offenses, Ark. Code Ann. § 12-64-402 provided:

(a) Each force of the organized militia has court-martial jurisdiction and powers over all persons subject to this code and shall follow the forms and procedures provided for similar courts of the United States Army and United States Air Force.

(b) The exercise of jurisdiction by one force over personnel of another force shall be in accordance with regulations prescribed by the Governor.

(c) The jurisdiction of the military courts and boards established by this code shall be presumed and the burden of proof rests on any person seeking to oust those courts or boards of jurisdiction in any action or proceeding.

(Repl. 2015). While Ark. Code Ann. § 12-64-402 provides that court-martial jurisdiction

is “presumed” and places the burden of proving otherwise upon the accused, military courts

for the United States have held that an accused’s military status is a necessary element of the

charged offense to be proven beyond a reasonable doubt (see United States v. McDonagh, 14

M.J. 415, 422 (C.M.A. 1983)).

Regardless, the facts of this case relevant to the jurisdiction issue are not disputed on

appeal. No party argues that Childers was on active duty at the time of the alleged offense.

Similarly, no party disputes that Childers was on AFTPP/IDT status between 7:00 a.m. and

11:00 a.m. and again between 11:01 a.m. and 6:00 p.m. And no party disputes that the

alleged offense occurred between 6:00 p.m. and midnight. Again, for clarity, pilots who

have met proficiency requirements may refer to their IDT periods as AFTP (Additional

Flight Training Period). Childers’ pay for the period is identical to all AFTPP/IDT pay for

all Guard members on the trip. Neither Childers nor any other federal employee and

member of the Arkansas Guard accompanying Childers on the trip was placed on active-

6 duty orders. An order placing a Guardsman on active duty is a status-changing event. Once

someone is ordered to active duty, that person is no longer an inactive-duty guardsman, but

is instead a full-time, twenty-four-hour-a-day seven-day-a-week member of the military,

to be awarded pay and allowance exactly as any other solider would be. There was no other

order or circumstance in this case that would place Childers in a duty status outside of his

AFTPP/IDT. Therefore, this court must answer the legal question of whether court-martial

jurisdiction extended to an alleged offense occurring after or between AFTPPs/IDTs when

there was no other order or circumstance that would place the accused in a duty status.

This court has not had the occasion to address the Arkansas Guard’s court-martial

jurisdiction. However, the United States Army Court of Criminal Appeals recently

addressed a scenario very similar to the one presented in this case. In United States v. Wolpert,

75 M.J. 777 (2016), a U.S. Army reserve member conducted IDT with his unit over a

three-day period in Fort Devens, Massachusetts. The unit conducted IDT for one three-

and-a-half-hour period on the first day, two four-hour periods on the second day, and two

four-hour periods on the third day. The accused was not ordered to active-duty status for

any amount of time during the three-day period. On the second day, after completing the

two periods of IDT and returning to the motel where unit members were being housed,

the accused allegedly sexually assaulted another soldier in his unit. The military judge

concluded that while members of a reserve component are subject to the Uniform Code of

Military Justice during IDT and therefore subject to court-martial jurisdiction, that

jurisdiction did not extend to periods between or after IDT. Accordingly, the accused was

7 not subject to court-martial jurisdiction at the time of the alleged offense. On appeal, the

United States Army Court of Criminal Appeals agreed with the military judge:

The military judge’s finding that the IDT period ended when appellee signed out of the second UTA on Saturday at 1700, 18 October 2014, is not clearly erroneous nor unsupported by the record. Based on the evidence before us, we conclude there was not jurisdiction under Article 2(a)(3).

Id. at 781.

Turning to the present case, we see no reason to treat this scenario differently from

how the United States Army Court of Appeals did in Wolpert. Whether or not a

servicemember is in a duty status is a line that should not be blurred. The requirement

“[t]hat only reservists who meet the statutory requirements are subject to the UCMJ reflects

Congress’s determination that for other misconduct they are subject to the jurisdiction of

the civilian courts.” United States v. Morita, 74 M.J. 116, 132 (C.A.A.F. 2015); see also

Duncan v. Usher, 23 M.J. 29, 34 (C.M.A. 1986) (“[T]he [UCMJ] makes no provision for

jurisdiction over someone who is ‘essentially’ on active duty. . . . [A]ctive duty is an all-or

nothing condition: [a reservist] either is on active duty or he is not!”). The rationale of

declining to extend court-martial jurisdiction beyond that statutorily authorized by Congress

is no less applicable to Acts of the Arkansas General Assembly. The fact alone that one

would be entitled to reimbursement funds paid out of Title 32 is not a status-changing

event. Based on the record before us and pursuant to the law in effect at the time, Childers’

duty status on December 12, 2016, ended after completing his IDTs for the day—6:00 p.m.

The alleged offenses would have occurred later that evening while Childers was not in a

duty status. The lack of a duty status means there was no court-martial jurisdiction for those

offenses under Ark. Code Ann. § 12-64-801. 8 Reversed and dismissed.

WOMACK, J., concurs.

KEMP, C.J., dissents.

SHAWN A. WOMACK, Justice, concurring. For the reasons set forth in the

dissenting opinion, I respectfully disagree with the majority’s analysis regarding our appellate

jurisdiction to hear this case. Nevertheless, I believe we have appellate jurisdiction because

the sole issue on appeal is the court-martial’s subject matter jurisdiction. I accordingly

concur with the majority’s decision to take up this case and join its analysis on the merits.

A guilty plea waives nonjurisdictional defects and errors. See Garrett v. State, 296 Ark.

550, 551, 759 S.W.2d 23, 24 (1988). Indeed, we have previously held that “a plea of guilty

was in itself a conviction and an admission of all elements of the charges and constituted a

waiver of any defense, other than jurisdiction, which might have been raised at trial.” Scalco

v. City of Russellville, 318 Ark. 65, 68, 883 S.W.2d 813, 814 (1994). That said, we have

declined to consider certain “jurisdictional” issues—namely, speedy trial and statute of

limitations—following a guilty plea. See Eckl v. State, 312 Ark. 544, 546–47, 851 S.W.2d

428, 429–30 (1993).4 But the jurisdictional issues in Eckl are far different than the

fundamental question of subject matter jurisdiction present in this case.

Subject matter jurisdiction “is the power of the court to hear and determine a cause,

including the power to enforce its judgment; it is the power to hear and determine the

4 Eckl preceded an amendment to Arkansas Rule of Criminal Procedure 24.3, which now allows for a conditional guilty plea reserving the right to challenge speedy trial issues. See Ark. R. Crim. P. 24.3(b)(ii) (2009).

9 subject matter in controversy between the parties.” Standridge v. State, 2014 Ark. 515, at 10,

452 S.W.3d 103, 110. Because jurisdiction is the authority of a court to hear a case on its

merits, lack of subject matter jurisdiction “is always open, cannot be waived, can be

questioned for the first time on appeal, and can even be raised by this court.” State v. Boyette,

362 Ark. 27, 31, 207 S.W.3d 488, 491–92 (2005) (internal quotation omitted). Further,

subject matter jurisdiction cannot be conferred by consent of the parties. See Beulah v. State,

352 Ark. 472, 474, 101 S.W.3d 802, 804 (2003). “[W]hen a court lacks jurisdiction over a

defendant, any judgment rendered thereafter is void ab initio.” Davis v. Kelley, 2019 Ark. 64,

at 5, 568 S.W.3d 268, 271.

It follows that a guilty plea cannot waive questions of subject matter jurisdiction.

Indeed, many other jurisdictions have made clear that a defendant may file a direct appeal

following a plea of guilt to challenge the lower court’s subject matter jurisdiction. See, e.g.,

United States v. Brice, 373 Fed. App’x 561, 562 (6th Cir. 2010); United States v. Miranda, 780

F.3d 1185, 1188–89 (D.C. Cir. 2015); Leonard v. Florida, 760 So.2d 114, 117 (Fla. 2000);

Windsor v. Kentucky, 250 S.W.3d 306, 307 (Ky. 2008); Smith v. Delaware, 841 A.2d 308

(Del. 2004); Mack v. Wisconsin, 286 N.W.2d 563, 566 (Wis. 1980). This allowance by other

courts is premised on the same principles embraced by our caselaw. That is, the fundamental

nature of subject matter jurisdiction, that it can never be waived, and can be raised at any

time. Following these principles, I believe we have appellate jurisdiction to consider

Childers’ sole issue on appeal challenging the court-martial’s subject matter jurisdiction.

Accordingly, I concur in the majority’s decision today.

10 JOHN DAN KEMP, Chief Justice, dissenting. Under our current court rules, this

court lacks jurisdiction to consider Adam Childers’s appeal from his negotiated guilty plea

in a court-martial proceeding. For this reason, I respectfully dissent.

It is fundamental that a general statute must yield to a specific statute involving a

particular subject matter. See City of Rockport v. City of Malvern, 2012 Ark. 445, at 4, 424

S.W.3d 870, 874; L.H. v. State, 333 Ark. 613, 617, 973 S.W.2d 477, 479 (1998). The

majority acknowledges that an apparent conflict exists between Arkansas Code Annotated

section 12-64-402 (Repl. 2015) and section 12-64-714(a)(1)(B) (Repl. 2015). Although

section 12-64-402 addresses court-martial jurisdiction generally and provides that the forms

and procedures for tribunals of the United States Military shall be used in such proceedings,

section 12-64-714(a)(1)(B) specifically addresses appeals in Arkansas courts from court-

martial proceedings and states that those appeals are governed by our court rules. In my

opinion, the latter statute is more specific than the former to this court-martial appeal and

therefore applies in the instant case.

Pursuant to our court rules, there shall be no appeal from a guilty plea except under

the circumstances provided by Arkansas Rule of Criminal Procedure 24.3(b). Ark. R. App.

P.–Crim. 1. As the majority recognizes, “[n]one of the exceptions contemplated by Rule

24.3(b) would apply in this instance.” Thus, by allowing this appeal to proceed, the

majority’s holding has the effect of creating a new exception to Rule 24.3(b). In my view,

we should not hastily carve out another Rule 24.3(b) exception for application to a pending

appeal. Rather, we should refer the matter to the Committee on Criminal Practice for

proper consideration and comment with a recommendation returned to this court in due

11 course. E.g., Clark v. State, 374 Ark. 292, 304, 287 S.W.3d 567, 576 (2008); McNabb v.

State, 367 Ark. 93, 101, 238 S.W.3d 119, 125 (2006).

Because we lack jurisdiction under the current version of Rule 24.3(b), the appeal

should be dismissed.

I respectfully dissent.

Gapasin, Capovilla & Williams, by: Nathan Freeburg, pro hac vice; and The Asa Hutchinson

Law Group, PLC, by: W. Asa Hutchinson III, for appellant.

Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.