United States v. Gonzalez

60 M.J. 572, 2004 CCA LEXIS 150, 2004 WL 1621643
CourtArmy Court of Criminal Appeals
DecidedJuly 21, 2004
DocketARMY 20020744
StatusPublished
Cited by6 cases

This text of 60 M.J. 572 (United States v. Gonzalez) is published on Counsel Stack Legal Research, covering Army Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gonzalez, 60 M.J. 572, 2004 CCA LEXIS 150, 2004 WL 1621643 (acca 2004).

Opinion

OPINION OF THE COURT

SCHENCK, Judge:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of absence without leave, missing movement (three specifications), willful disobedience of a superior commissioned officer, drunk on duty, wrongful use of marijuana (two specifications), and breaking restriction in violation of Articles 86, 87, 90, 112, 112a, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 887, 890, 912, 912a, and 934 [hereinafter UCMJ]. The convening authority approved the adjudged sentence to a bad-conduct discharge, confinement for seven months, and reduction to Private El. Appellant’s case is before this court pursuant to Article 66, UCMJ, 10 U.S.C. § 866.

We hold that appellant’s guilty pleas to two specifications of missing movement through design were provident because appellant had verbal orders from his commander not to change those two flights.1 We hold that appellant’s guilty plea to missing movement through neglect was improvident because the military judge failed to elicit from appellant factual admissions to support a finding that appellant was neglectful in missing his scheduled flight. We considered the allied papers2 in deciding these issues. We did not consider the possibility of “foreseeable disruption” to military operations because we hold that “foreseeable disruption” is not a required element of missing movement. We also hold that the military judge erred by accepting appellant’s plea to drunk on duty because the providence inquiry does not clearly establish that appellant ever reported for duty while drunk.

I. MISSING MOVEMENT

A. Facts

Pursuant to his pleas, appellant was found guilty of missing movement through neglect on 16 December 2001 (Specification 3 of Charge II) and through design on 16 January 2002 and 27 January 2002 (Specifications 2 and 1 of Charge II, respectively). Each of these three specifications allege that appellant missed a specific commercial airline flight on the dates indicated. On each date, appellant was to fly to Korea pursuant to his permanent change of station (PCS) orders. When appellant missed his first flight on 16 December, his command escorted him to the Fort Carson travel office for rescheduling; this first missed flight was rescheduled. When appellant missed the 16 January flight, his command again escorted him to the travel office for rescheduling; appellant’s flight was again rescheduled.

The stipulation of fact, agreed to by all parties and admitted into evidence without objection, indicates appellant “was required pursuant to his military orders to get on” each flight on the dates alleged. During the providence inquiry, appellant admitted on each occasion that he knew of the flight, had a duty or obligation to board the plane, missed the flight through neglect or design (as alleged), and did not make any independent attempts to reschedule the missed flights. Appellant’s PCS orders and amendments from the allied papers reflect reporting dates “not later than” four days after each of the scheduled flights. Appellant’s “TRAVELOPEs” for the first and third [574]*574scheduled departure flights (also located in the allied papers) include the statement, “I understand that if I fail to report to the above named airport for transportation on the date and time stated above[,] I will be subject to disciplinary action under the Uniform Code of Military Justice (UCMJ).”3

Allied Papers

Whether appellant’s airline tickets could be changed and still allow appellant to report on time is an important issue in appellant’s missing movement offenses.4 The allied papers indicate that appellant’s commercial airline tickets were refundable.5 In order to eliminate the possibility of ineffective assistance of counsel, we ordered appellant’s trial defense counsel to provide a post-trial affidavit. See United States v. Lewis, 42 M.J. 1, 6 (C.A.A.F.1995). Trial defense counsel subsequently stated appellant informed him that appellant’s chain of command “ordered [appellant] to be on the specific flights____ Technically speaking although the tickets say a refund was authorized, [appellant] personally was not authorized to change the flights without permission of his command.” Essentially, trial defense counsel asserts that since appellant was ordered not to change his flights he could not exchange his tickets.

Appellate government counsel concede that, absent the chain of command’s orders to be on specific flights, the travel office “would have allowed” appellant to exchange his commercial airline ticket without a military official’s approval or intervention. Given the government’s concession, appellant still could have arrived in Korea by his “not later than” reporting date.

The government urges us not to consider the allied papers in our review of appellant’s case. Without specifying any facts that are in doubt, appellate government counsel argue that to do so would place the government at an unfair disadvantage on appeal. While the law does not permit us to consider allied papers and excluded evidence in contested cases,6 our superior court has not specifically precluded us from considering extra-record matters in our review of guilty plea cases.7 [575]*575We considered the allied papers in appellant’s case to ensure that appellant received effective assistance of counsel and to fulfill our Article 66(c), UCMJ, responsibility, that is, to affirm guilty findings that are correct in law and fact and that should be approved based on the entire record.

B. Law

This court reviews a military judge’s acceptance of a guilty plea for an abuse of discretion. United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F.1996). We use a “substantial basis test for appellate review of the providence of guilty pleas”8 and will not overturn a guilty plea unless the record of trial shows a substantial basis in law and fact for questioning the guilty plea. United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991).

“The military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea.” R.C.M. 910(e). The facts disclosed by such inquiry must objectively support the guilty plea. United States v. Garcia, 44 M.J. 496, 497-98 (C.A.A.F.1996). Should the accused set up a matter inconsistent with the plea at any time during the proceeding, the military judge must “either resolve the apparent inconsistency or reject the [guilty] plea.” Id. at 498; see UCMJ art. 45(a), 10 U.S.C.

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Bluebook (online)
60 M.J. 572, 2004 CCA LEXIS 150, 2004 WL 1621643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gonzalez-acca-2004.