United States v. Olinger

47 M.J. 545, 1997 CCA LEXIS 410
Navy-Marine Corps Court of Criminal Appeals·Decided July 24, 1997·No. NMCM 96 01319·Published·Cited by 6 cases

Opinion

NICHOLS, Judge:

A military judge sitting as a special court-martial convicted the appellant, pursuant to his pleas, of unauthorized absence and missing movement through design, in violation of Articles 861 and 87, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 887 (1994)[hereinafter UCMJ]. Appellant was sentenced to confinement for 80 days, forfeiture of $500.00 pay per month for two months, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority approved the sentence as adjudged and, except for the bad-conduct discharge, ordered it executed. Pursuant to a pretrial agreement, the convening authority suspended all confinement in excess of 75 days for 6 months from the date of trial.

Appellate defense counsel filed two summary assignments of error2 on behalf of the appellant. Thereafter, on 15 January 1997, counsel submitted a motion for leave to file a supplemental pleading and an additional summary assignment of error.3 This court [547]*547granted the motion. Assignment of Error I, having to do with the possible existence of an affirmative defense to the charges of unauthorized absence and missing movement through design, was subsequently argued orally on 16 January 1997.4 All together, there are three assignments of error to be addressed by this court.

The Necessity Defense

On 27 June 1995, appellant failed to return from authorized leave and report to his ship, the USS FAHRION, located at Mayport, Florida. He remained absent from the USS FAHRION until on or about 5 December 1995, at which time he turned himself in to the authorities at Great Lakes. At the time he made the decision to miss his ship’s movement, appellant was aware that the USS FAHRION was scheduled to move on the UNITAS deployment. At trial, appellant acknowledged his guilt and provided a factual basis for all the elements of both charged offenses. During the sentencing phase of his trial, appellant exercised his right to present matters in extenuation and mitigation by making an unsworn oral statement. In his unsworn statement, he stated the following:

In November of 1994 I re-entered active service at Great Lakes, Naval Station where I spent one month at TPU awaiting orders. After receiving orders to USS FAHRION, I reported in early December. The ship was stationed in Charleston, South Carolina, where we made our home. In March 1995 FAHRION went to Norfolk for a final evaluation period in Degowzen [sic] for one month. During that time my wife and I found out that she could not have children, and after that my wife went back on Prozac, an antidepressant drug. I came home for one week to move to Ponte Vedra, Florida, because our ship’s home port shipped into Mayport, Florida. After the move I went back to Norfolk to ride the ship back to Charleston. After two weeks in Charleston the FAHRION went to sea for one month until the 24th of May when I returned to Charleston for two more weeks.
In the middle of June I finally saw my wife’s condition of depression. She had surgery several years prior that makes stress a danger to her health. And at the time I went UA I felt that her depression might kill her from the stress if I went on the UNITAS deployment.

Record at 33.

In his brief appellant argued that his guilty pleas were improvident because the military judge failed to adequately resolve the potential defense of duress raised during his unsworn statement. He contends that his use of the phrase “I felt that her depression might kill her” suggested a possible defense to the offenses charged. If the defense of duress was reasonably raised, the military judge was required to reopen the providence inquiry to resolve the availability of the affirmative defense before accepting the appellant’s pleas. Therefore, appellant contends, the judge’s failure to secure a factual basis negating the availability of the duress defense renders his guilty pleas to the charges improvident.

At trial, a military judge may not accept a guilty plea unless the accused provides an adequate factual basis for the plea. Rule for Courts-Martial 910(e), Manual for Courts-Martial, United States (1995 ed.)[hereinafter R.C.M.]. For the military judge to accept an accused’s plea of guilty, the facts elicited from the accused must objectively support his plea. United States v. Schwabauer, 37 M.J. 338, 341 (C.M.A.1993). Furthermore, the judge has a sua sponte duty “to ensure that an accused not plead [548]*548guilty to an offense of which he is in fact not guilty.” United States v. Hanson, 24 M.J. 877, 379 (C.M.A.1987).

After a plea of guilty is entered, the plea may be rendered improvident if an accused’s subsequent statement raises an issue that is in substantial conflict with the plea. United States v. Stewart, 29 M.J. 92, 93 (C.M.A.1989). When this occurs, the military judge must then resolve the factual inconsistencies and any apparent defenses raised by the subsequent statement. United States v. Jemmings, 1 M.J. 414, 418 (C.M.A.1976). Therefore, when a potential defense is raised, the military judge should explain the elements of the defense to the accused and should not accept the accused’s plea of guilty unless the accused admits facts which negate the defense. R.C.M. 910(e); See United States v. Peterson, 1 M.J. 972, 974 (N.C.M.R. 1976). The judge is required to enter a plea of not guilty on behalf of the accused if, after a plea of guilty, he “sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently.” Art. 45(a), UCMJ, 10 U.S.C. § 845(a). See R.C.M. 910(b), (h)(2). On appeal, if the providence inquiry does not support the guilty plea or if the record of trial “show[s] a substantial basis in law or fact for questioning the guilty plea,” this court must set aside the applicable findings. United States v. Vega, 39 M.J. 79, 81 (C.M.A.1994)(citing United States v. Prater, 32 M.J. 433 (C.M.A. 1991)); United States v. Logan, 22 C.M.A. 349, 351, 47 C.M.R. 1, 3, 1973 WL 14641 (1973). See also Art. 45(a), UCMJ, 10 U.S.C. § 845(a).

The Manual for Courts-Martial, United States (1995 ed.)[hereinafter MCM], recognizes the existence of the affirmative defense of duress in military law. R.C.M. 916(h) provides:

Coercion or duress. It is a defense to any offense except killing an innocent person that the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act. This apprehension must reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply.

The MCM recognizes that an accused may commit an illegal act in order to avoid the serious injury or death of the accused or an innocent person.

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United States v. Olinger, 47 M.J. 545, 1997 CCA LEXIS 410 (N.M. 1997).

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