United States v. Franchino

48 M.J. 873
Procedural entryThis page is a short order in United States v. Franchino. Read the opinion of the Court — 48 M.J. 875
U S Coast Guard Court of Criminal Appeals·Decided August 25, 1998·No. CGCMS 24121; Docket No. 1072·Published

Opinion

McClelland, judge:

Appellant was tried by a special court-martial before a military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, he was convicted of the following offenses: one specification of unauthorized absence terminated by apprehension, one specification of failure to obey a lawful general order, one specification of making a false official statement, forty specifications of larceny of Government monies, and one specification of wrongful use of cocaine, in violation of Articles 86, 92, 107, 121, and 112a of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 892, 907, 921, and 912a, respectively. The judge sentenced appellant to a reduction to pay grade E-l, forfeiture of $490.00 pay per month for three months, a fine of $2,000.00, confinement for six months, and a bad conduct discharge. The convening authority approved the sentence as adjudged, except that, pursuant to a pretrial agreement, he suspended confinement in excess of the 82 days already served in pretrial confinement.

Five errors were initially assigned by Appellant, causing the record to be returned to the convening authority for corrective action. The convening authority issued a new Action and a new court-martial order. Upon re-referral of the record to the Court, Appellant withdrew four of the assigned errors. Thereafter, the Court ordered supplemental briefing of three specified issues and an explanation concerning the one remaining assigned error. In response, Appellant withdrew his assigned error and filed three supplemental errors which have also been orally argued. Those argued errors are: (1) that the plea-providence inquiry is insufficient to establish unauthorized absence terminated by apprehension; (2) that, with respect to the larceny specifications, Appellant’s answers during the plea-providence inquiry do not establish the taking element; and (3) that the convening authority’s action suspending a portion of the confinement is ambiguous with respect to when the suspension ends and legally incorrect with respect to disposition after successful completion of probation.

[877]*877PROVIDENCE OF UNAUTHORIZED ABSENCE PLEA

Appellant contends that although the finding of guilty of unauthorized absence is proper, his guilt of termination by apprehension cannot be sustained. The Government does not oppose that contention, but calls the element of termination by apprehension “mere surplusage” and asserts that “the finding of guilt on this superfluous element had no effect in determining Appellant’s sentence.” Government’s Answer Brief of February 9, 1998, p. 6.

During the providence inquiry, Appellant stated that his absence ended when he was apprehended by the Cleveland police on a Cleveland street; that the police took him to their 3rd District, where he remained for about twelve hours, at which time the Coast Guard came and picked him up. Record at 37-38. Both counsel objected to the Military Judge’s questions concerning why he was apprehended and whether the Cleveland police knew he was absent without leave, and the Military Judge did not press those questions further. The only other information on the subject was provided by trial counsel, who stated, “Once the Cleveland police understood that he was absent without leave from the Coast Guard, they contacted the Coast Guard and the Coast Guard immediately indicated that we wanted to take custody and control of him.” Record at 40.

It has long been settled law that “apprehension” by civilian authorities does not establish “apprehension” within the meaning of the military law of unauthorized absence, unless additional facts are established. U.S. v. Salter, 4 U.S.C.M.A. 338, 15 C.M.R 338, 1954 WL 2297 (1954); U.S. v. Ansell, 16 C.M.R 450, 1954 WL 2514 (C.G.B.R.1954). Where termination by apprehension is alleged, in addition to apprehension by civilian authorities it must be shown that the accused was not the source of the information that he was a military absentee, or, if he was the source, that he revealed the information to avoid civilian prosecution. This is an essential part of the element of termination by apprehension.

In the context of a guilty plea, this element, like all the others, is to be established through the military judge’s inquiry of the accused. U.S. v. Davenport, 9 M.J. 364, 367 (C.M.A.1980); U.S. v. Faircloth, 45 M.J. 172, 174 (1996). See R.C.M. 910(e) Discussion (“Ordinarily, the elements should be explained to the accused.”). Here, that did not occur. Indeed, the trial counsel’s statement suggested that the accused may have been the source of the information, which, if true, would certainly require further inquiry. Accordingly, the providence inquiry is inadequate to sustain the finding of guilt of termination by apprehension. We therefore must set aside that portion of the specification.

The question of sentence relief follows. We do not agree with the Government that the apprehension element is “mere surplus-age” and we cannot say that it could not have affected the sentence. That it does not increase the maximum sentence is not determinative. All other things being equal, termination of an unauthorized absence by apprehension almost always warrants a more severe sentence than voluntary termination, even if the increment is small. We must therefore determine whether the sentence would have been different absent the apprehension element. See U.S. v. Sales, 22 M.J. 305 (C.M.A.1986); U.S. v. Puckett, 32 M.J. 783 (C.G.C.M.R1991), pet. denied 34 M.J. 15 (C.M.A.1991). We will do so after considering the other issues.

PROVIDENCE OF LARCENY PLEA

Appellant contends that the findings of guilty of larceny under Charge IV are defective because during the providence inquiry the accused never admitted to a taking.

Appellant pled guilty to 40 specifications of larceny, each of which was in the following form:

In that BM3 Michael R. Franchino, USCG, did, on active duty, at [business establishment] in or near the city of_, Ohio, on or about [date], steal money of a value of about $_, the property of the U.S. Government, by wrongfully using a government credit card to purchase1 [merchandise] for his own use.

[878]*878During the providence inquiry, for each specification Appellant admitted to facts amounting to obtaining merchandise by means of the false pretense of paying with a credit card he had no authority to use for that transaction, effectively representing that he did have such authority. For each specification, he admitted that the merchandise was owned by and obtained from the business establishment specified, and that the merchandise had the value specified. For each specification, he admitted that he intended to deprive the owner of the merchandise permanently, with one exception: for specification 2, he admitted that he intended to deprive the owner of the merchandise temporarily.

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United States v. Franchino, 48 M.J. 873 (uscgcoca 1998).

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