United States v. Johnson

42 M.J. 443, 1995 CAAF LEXIS 97, 1995 WL 561691
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 21, 1995
DocketNo. 94-0026; CMR No. 30127
StatusPublished
Cited by59 cases

This text of 42 M.J. 443 (United States v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Johnson, 42 M.J. 443, 1995 CAAF LEXIS 97, 1995 WL 561691 (Ark. 1995).

Opinions

Opinion of the Court

SULLIVAN, Chief Judge:

1. On July 27, 1992, appellant was tried by a general court-martial composed of a military judge sitting alone at Davis-Mon-than Air Force Base, Arizona. In accor[444]*444dance with a pretrial agreement he pleaded guilty to wrongfully using cocaine and failing to obey a lawful order, in violation of Articles 112a and 92, Uniform Code of Military Justice, 10 USC §§ 912a and 892, respectfully. Appellant was sentenced to a bad-conduct discharge, confinement and forfeiture of $200 pay per month for 6 months, and reduction to E-l. The convening authority approved the sentence on August 31, 1992.

2. The Court of Military Review1 affirmed this case without opinion on June 17, 1993. Appellant, represented by new appellate counsel, appealed that decision to this Court raising an issue not asserted below. On June 23, 1994, this Court remanded appellant’s case to the Court of Military Review for consideration of that issue. 40 MJ 304. On August 23, 1994, the Court of Military Review issued an unpublished Opinion of the Court Upon Further Review and again affirmed the findings of guilty and the sentence in this case.

3. This Court, on October 24,1994, granted review in this case on the issue upon which our earlier remand to the Court of Military Review was predicated. It asks:

WHETHER APPELLANT’S PLEAS OF GUILTY TO CHARGE I AND ITS SPECIFICATION WERE IMPROVIDENT SINCE PROSECUTION EXHIBIT 5 CLEARLY INDICATES THAT APPELLANT WAS NEVER ISSUED A LAWFUL ORDER.

We hold that the entire record of trial established that appellant was issued a lawful order by Staff Sergeant (SSgt) Homan not to drink alcohol and, thus, he providently pleaded to violating that lawful order. See generally United States v. Harrison, 26 MJ 474, 476 (CMA 1988).

4. Appellant was charged with the offense of disobedience of a lawful order, in violation of Article 92. The particular specification stated:

SPECIFICATION: In that [appellant], having knowledge of a lawful order issued by SSgt Joseph R. Homan, to refrain from drinking alcoholic beverages while a minimum custody prisoner in the Davis-Mon-than Air Force Base Detention Facility, an order which it was his duty to obey, did, at Davis-Monthan Air Force Base, Arizona, on or about 11 April 1992, fail to obey the same.

5. Appellant agreed to plead guilty to the above offense and entered into a stipulation of fact concerning it. That stipulation states:

On or about 5, 6 and 7 March 1992, the accused was tried by a general court-martial for the wrongful use of cocaine. He was found guilty and his sentence consisted of reduction in grade to E-2 and confinement for 10 months (Exhibit 4) [Court-Martial Order omitted]. The accused began serving his sentence on or about 7 March 1992 and is currently confined at the Davis-Monthan AFB confinement facility. On or about 6 April 1992, the accused was offered the opportunity to be a minimum custody/installation parolee and signed a document entitled “Rules for Minimum Custody/installation Parolee” (Exhibit 5) [omitted]. As a minimum custody/installation parolee and pursuant to a lawful order from SSgt Joseph R. Homan, the accused was to refrain from drinking alcoholic beverages.
On or about 11 April 1992, the accused, despite having knowledge of the lawful order issued by SSgt Homan to refrain from drinking alcoholic beverages, an order which it was his duty to obey, did fail to obey said order by consuming alcoholic beverages while in confinement.

(Emphasis added.)

6. Prosecution Exhibit 5 is entitled “RULES FOR MINIMUM CUSTODY/INSTALLATION PAROLEE.” Paragraph 1 states: “These rules are directive in nature and pertain to your actions and conduct outside the Detention Facility, while in status as either minimum custody prisoner or installation parolee.” Furthermore, paragraph lb, entitled UNAUTHORIZED ACTS, fists as prohibited conduct in subparagraph (1): “Drinking alcoholic beverages.” Finally, paragraph 2 of this regulation states:

[445]*445Violations of any of the above rules may result in:
a. Reprimand or warning
b. Deprivation of one or more privileges
c. Loss of minimum custody status
d. Extra duties, not to exceed 2 hours a day for 14 days
e. Loss of good conduct time. (Adjudged & sentenced Prisoners Only)
3. Your signature below certifies that you have read, understand and will comply with the above rules and that a copy will be carried on your person at all times.

7. Appellate defense counsel argues that certain guilty-plea responses by appellant raised a substantial question of fact whether Sergeant Homan ever gave him a verbal order not to consume alcohol. He contends that the guilty-plea “inquiry makes it clear that the order the appellant believed he had received on 6 April 92 not to drink was a written, rather than a verbal order.” Final Brief at 4. He finally contends that the installation prison rules that appellant received from Sergeant Homan were administrative in nature and not a proper subject for prosecution under Article 92. Final Brief at 5, citing United States v. Felix, 36 MJ 903, 910 (AFCMR 1993) (en banc), aff'd, 40 MJ 356 (CMA 1994).

8. In determining the providence of appellant’s pleas, it is uncontroverted that an appellate court must consider the entire record in a case. United States v. Bester, 42 MJ 75 (1995); see also United States ¶ Martin, 39 MJ 111 (CMA 1994); United States v. Smith, 34 MJ 319, 324 (CMA 1992). Appellant’s record shows that he was charged with violating a lawful order from Sergeant Homan; he stipulated that he received such order from that person; and he admitted to the judge that he failed to obey “this lawful order issued by Staff Sergeant Homan.” His appellate counsel now asks this Court to infer from certain other parts of the record that appellant received no verbal order from SSgt Homan but, instead, that he received only a copy of the administrative rules for parolees. He further asks this Court to hold as a matter of law that such installation prisoner rules are not a proper subject of an Article 92 prosecution. Final Brief at 4-5.

9. We must again decline the invitation of the defense to speculate post-trial as to the existence of facts which might invalidate an appellant’s guilty pleas. See generally United States v. Harrison, 26 MJ at 476. Such rejection is particularly appropriate in appellant’s case where the inference sought to be drawn post-trial would contradict express admissions by the accused. See also United States v. Davenport, 9 MJ 364, 367 (CMA 1980). In any event, the cited responses of appellant do no more than establish that his drinking violated written prison rules handed to him by SSgt Homan. Such a fact is not inconsistent with SSgt Homan’s also giving appellant an order not to drink on this particular occasion. E.g., United States v. Traxler, 39 MJ 476 (CMA 1994). Finally, it was appellant’s pleas of guilty, his agreed-to stipulation of fact, and his failure to withdraw his pleas which made it unnecessary for the prosecution to call SSgt Homan at trial to clarify any ambiguity on this point.

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Cite This Page — Counsel Stack

Bluebook (online)
42 M.J. 443, 1995 CAAF LEXIS 97, 1995 WL 561691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-johnson-armfor-1995.