United States v. Felix

36 M.J. 903, 1993 CMR LEXIS 56, 1993 WL 51365
CourtU S Air Force Court of Military Review
DecidedFebruary 10, 1993
DocketACM S28476
StatusPublished
Cited by11 cases

This text of 36 M.J. 903 (United States v. Felix) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Felix, 36 M.J. 903, 1993 CMR LEXIS 56, 1993 WL 51365 (usafctmilrev 1993).

Opinions

OPINION OF THE COURT

SNYDER, Judge:

Pursuant to conditional pleas of guilty,1 appellant was convicted by special court-martial of failure to obey a lawful order, and two specifications of escape from correctional custody.2 He was sentenced to a bad-conduct discharge, 5 months confinement, and reduction to E-l. Appellant raises five assignments of error, of which only three merit extensive discussion. We grant partial relief on the findings and sentence.

Appellant now claims his pleas to the specifications and charge, Charge II, are improvident. The basis for his assertion is that comments in his unsworn statement during sentencing raised matter inconsistent with his plea. Specifically, he suggests the restraint he breached was moral, rather than physical.3 Because of the salient facts of the instant case, for appellant’s contention to prevail, we must accept the premise that a person placed in a designated, supervised correctional custody facility is not thereby under physical restraint. Indeed, appellant’s supplemental brief argues as much. We disagree. Absent some evidence contradicting appellant’s concession that he was under physical restraint in a centralized, monitored correctional custody facility, we decline to hold that his unsworn statement raising the possibility that the physical restraint was ineffective was a matter inconsistent with his pleas of guilty to escape from correctional custody.

Absent evidence demonstrating appellant was being controlled by moral restraint at the time of the offense, we find provident, his pleas that he escaped by casting off the restraint of a monitored, centralized correctional custody facility, regardless of the means by which he did so.

I. FACTS

The following dialogue transpired between appellant and the military judge:

MJ: And are you, were there in fact limits on where you could go, within correctional custody, without the per[906]*906mission of the correctional custody monitor?
Acc: Was there an outline, you mean,— MJ: Yes.
Acc: —as far as I could go?
MJ: Um-hum.
Acc: I don’t remember seeing anything like that.
MJ: No, but I mean—
Acc: No, I—
MJ: —did you understand that you were under physical restraint Acc: —yes, sir.
MJ: —imposed by this correctional custody?
Acc: Yes, sir.
MJ: And that you would need the permission of the correctional custody monitor in order to go out of the correctional custody facility unless you were out on some kind of a work detail or something like that?
Acc: Yes, sir.
MJ: And you knew of the limits, the limitations placed on you with, in terms of physical restraint, by this,—
Ace: Yes, sir.
MJ: —by your status of being in correctional custody?
Acc: Yes, sir.
MJ: Okay. Now did you, on the 9th of February, free yourself from the physical restraint that had been imposed upon you?
Acc: Yes, sir.
MJ: What’d you do? Did you go downtown?
Acc: Went downtown, sir.
******
MJ: Now, on the 13th of February, was your status still the same as it was on the 9th of February,—
Acc: Yes, it was.
MJ: —as being in correctional custody? Acc: Yes, sir.
MJ: And again, you were aware of that status, is that correct?
Acc: Yes, sir.
MJ: Okay. What did you do on the 13th of February to escape from correctional custody?
Acc: I needed to go use the phone, sir ... and I left through the back door.
MJ: And did you in fact surreptitiously leave the correctional custody facility without permission from anyone who could give you permission to leave?
Acc: Yes, sir

A stipulation of fact entered into by all parties at trial reflects the appellant left the correctional custody facility and went to a Las Vegas casino where he consumed beer. While there, he remarked to a non-commissioned officer working part-time at the casino that “I just snuck out of CC.” Regarding the 13 February offense, the stipulation of fact reflects the appellant departed the facility “out the back door while the CC monitor was in his office.”

II. CORRECTIONAL CUSTODY

Appellant argues that finding physical restraint on the facts of the instant case renders paragraph 70, MCM, redundant. His argument refers to the second element of the offense, which requires the correctee to be under physical restraint while in correctional custody.4 MCM, Part IV, paragraph 70(b)(1)(b) (1984). The essence of this argument is that the trial judge should have inquired into what extent, if any, the facility deterred or hampered appellant’s freedom of movement. This argument fails to account for the essence of correctional custody.

Correctional custody is an authorized nonjudicial punishment pursuant to Article 15, UCMJ (10 U.S.C. § 815). The President defines correctional custody as “the physical restraint of a person during duty or nonduty hours, or both, imposed as a punishment under Article 15____” MCM, 1984, Part V, paragraph 5(e)(4) (1984). This definition is taken almost verbatim [907]*907from the Senate Report explaining the 1962 amendment to Article 15. Prior to defining correctional custody, the Senate Armed Services Committee stated as follows: “The bill contains a form of physical restraint not authorized in existing law, and termed ‘correctional custody’.” S.Rep. No. 1911, 87th Cong., 1st Sess. 7 (1962) (emphasis added).

Although there is a paucity of decisions involving correctional custody, the few in existence do not contradict the crystal clear intent of Congress and the President to make correctional custody a form of physical restraint, especially when the issue actually before the Court is separated from the collateral aspects. In United States v. Carson, 15 U.S.C.M.A. 407, 35 C.M.R. 379, 1965 WL 4684 (1965), attention might be diverted to the fact the correctee was locked in a barracks room. The issue before the Court, however, was whether the members had to find the correctional custody was legally imposed as an element of the offense of escape from correctional custody. The Court held that was a question of law and not an element of the offense for the factfinders. The decision placed no emphasis whatsoever on the fact the accused was actually locked up while undergoing correctional custody. In fact, the instructed elements required the members only to find the accused was in

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. McDaniel
52 M.J. 618 (Army Court of Criminal Appeals, 1999)
United States v. Hanratty
48 M.J. 743 (Air Force Court of Criminal Appeals, 1998)
United States v. Bivins
45 M.J. 501 (Air Force Court of Criminal Appeals, 1996)
United States v. Johnson
42 M.J. 443 (Court of Appeals for the Armed Forces, 1995)
United States v. Lawrence
43 M.J. 677 (Air Force Court of Criminal Appeals, 1995)
United States v. Felix
40 M.J. 356 (United States Court of Military Appeals, 1994)
United States v. Strode
39 M.J. 508 (U S Air Force Court of Military Review, 1993)
United States v. Brown
38 M.J. 696 (U S Air Force Court of Military Review, 1993)
United States v. Holt
38 M.J. 682 (U S Air Force Court of Military Review, 1993)
United States v. Pabon
37 M.J. 836 (U S Air Force Court of Military Review, 1993)
United States v. Anderson
36 M.J. 963 (U S Air Force Court of Military Review, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
36 M.J. 903, 1993 CMR LEXIS 56, 1993 WL 51365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-felix-usafctmilrev-1993.