United States v. Drake

26 M.J. 553, 1988 CMR LEXIS 247, 1988 WL 38864

• Court: U.S. Army Court of Military Review
• Decided: April 15, 1988
• Docket: ACMR 8702110
• Status: Published

Opinion

OPINION OF THE COURT

PER CURIAM:

Pursuant to his pleas, appellant was convicted by a military judge sitting as a general court-martial of adultery and incest (three specifications), in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1982) [hereinafter UCMJ].¹ Appellant was sentenced to a dishonorable discharge, confinement for seven years, forfeiture of $400.00 pay per month for eighty-four months and reduction to Private E-l. Pursuant to a pretrial agreement, the convening authority reduced the term of confinement and forfeitures to thirty-six months, and otherwise approved the sentence.

Appellant avers that his pleas were improvident due to a substantial misapprehension of the maximum imposable sentence. Specifically, appellant alleges that his acts of sexual intercourse with his then eighteen year old daughter, charged under the Assimilative Crimes Act, 18 U.S.C. § 13 (1982), either constituted the offense of indecent acts with another or were so closely related thereto that its sentence limitation should have applied. See Manual for Courts-Martial, United States, 1984 [hereinafter M.C.M., 1984], Rule for Courts-Martial [hereinafter R.C.M.] 1003(c)(l)(B)(i). We disagree.

An indecent act encompasses “that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals with respect to sexual relations.” M.C.M., 1984, Part IV, para. 90 c. The indecency is related more to the circumstances surrounding the act than the act itself. See, e.g., United States v. Thomas, 25 M.J. 75 (C.M.A.1987) (dancing in the nude with children constitutes indecent act); United States v. Ramirez, 21 M.J. 353 (C.M.A.1986) (masturbation in front of children in public playground punishable as indecent liberties). The offense of incest is not criminal because of the act performed or the circumstances surrounding it, but rather because of the statutorily protected relationship (familial) between the offender and the victim. If there is any offense analogous to incest to be found in the UCMJ, it is carnal knowledge, a statutorily protected relationship based on age. UCMJ art. 120(b). Hence, we conclude that the offenses of incest and indecent acts are not closely related.

Even if the offenses were closely related, and the cap on confinement was five, not ten, years per specification,² appellant is not automatically entitled to relief. All the circumstances of the case must be considered to determine whether the misapprehension of the maximum sentence affected the guilty plea, or whether that factor was insubstantial in the decision to plead guilty. United States v. Hunt, 10 M.J. 222, 223-24 (C.M.A.1981). In the instant case, appellant was charged with rape, forcible sodomy, indecent assault, adultery, and indecent acts in addition to incest. Absent the pretrial agreement, appellant could have been subject to imprisonment for life. See M.C.M., 1984, Part IV, para. 45 e(l). The pretrial agreement provided that appellant could serve confinement for no more than three years, regardless of whether the government opted to prove the remaining offenses.³ Appellant’s answers during the providence inquiry clearly established his guilt of the adultery and incest specifications. Under these circumstances, we find that any misunderstanding regarding the maximum imposable confinement was an insubstantial factor in appellant’s decision to plead guilty.

Hence, appellant’s guilty pleas were provident.

The issues personally asserted by appellant are without merit.

The findings of guilty and the sentence are affirmed.

1 . The judge found the adultery specification to be multiplicious for sentencing with one of the incest specifications.

2 . Compare M.C.M., 1984, Part IV, para. 90 e with Ky.Rev.Stat.Ann. §§ 530.020(2), 532.060(c) (Michie/Bobbs-Merrill 1987).

3 . Although the pretrial agreement did not preclude prosecution of the other offenses, the government presented no evidence following the acceptance of appellant's guilty pleas.