United States v. Pillow

28 M.J. 1008, 1989 CMR LEXIS 618, 1989 WL 86528
CourtU S Coast Guard Court of Military Review
DecidedJuly 31, 1989
DocketCGCMS 23915; Docket No. 923
StatusPublished
Cited by5 cases

This text of 28 M.J. 1008 (United States v. Pillow) is published on Counsel Stack Legal Research, covering U S Coast Guard 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. Pillow, 28 M.J. 1008, 1989 CMR LEXIS 618, 1989 WL 86528 (cgcomilrev 1989).

Opinion

BAUM, Chief Judge:

Appellant, pursuant to his pleas of guilty, was convicted by special court-martial, judge alone, of three specifications of unauthorized absence, willful disobedience of a petty officer, violation of a lawful general regulation and larceny of $2,024.50 in violation of Articles 86, 91, 92 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 891, 892, 921. The judge sentenced appellant to a bad conduct discharge, confinement for five months, forfeiture of $200.00 per month for five months and reduction to pay grade E-l. Thereafter, the convening authority mitigated the sentence in accordance with the terms of a pretrial agreement by suspending for six months the forfeitures and all confinement in excess of 60 days. The remainder of the sentence was approved as adjudged. Before this Court, appellant, through written brief and oral argument, challenges the providence of his guilty pleas, asserting in six assignments of error that matters inconsistent with guilt to each of the offenses were raised by the accused’s answers to questions from the judge during the plea providence inquiry mandated by United States v. Care, 18 USCMA 535, 40 CMR 247 (1969).

Appellant, citing Article 45, Uniform Code of Military Justice, 10 U.S.C. § 845, United States v. Davenport, 9 M.J. 364 (CMA 1980) and United States v. Moglia, 3 M.J. 216 (CMA 1977), submits that a plea of guilty must be rejected by the military judge and a not guilty plea entered if an accused sets up matters inconsistent with guilt, including making statements which on their face raise possible defenses. We agree with this statement of settled case law and caution judges to be alert to responses from an accused that are incompatible with guilty pleas. Unless such matters are cleared up by further questioning, so that the accused’s answers are consonant with the pleas by factually supporting all elements of the offenses, by foreclosing possible defenses, and by reflecting a guilty state of mind, the judge must reject the pleas and proceed to a trial on the merits. See the explication of the law on [1010]*1010this subject in United States v. Lee, 16 M.J. 278 (CMA 1983). See also Judge Barry’s separate opinion in United States v. Coleman, 28 M.J. 656, 658 (CGCMR 1989). As noted by appellate defense counsel during oral argument and confirmed by records referred to this Court, there appears to be an increase in the number of guilty plea courts-martial within the Coast Guard, particularly those with pretrial agreements. It therefore behooves Coast Guard trial judges to be especially attuned to the requirements for accepting such pleas. Here, despite a careful, probing inquiry by the trial judge, which resulted in the rejection of one plea of guilty, unresolved matters still remain with respect to some of the offenses.

When questioned by the judge about the first alleged absence, the accused responded that he failed to go at the time prescribed for morning quarters, arriving fifteen minutes late when he was not awakened after placing a wake up call. The judge did not pursue this matter any further. Applying the principles from United States v. Lee, supra, we find that appellant’s statement, without amplification and taken at face value, raises the possibility that failure to report on time was based on the accused’s reasonable reliance on being awakened as requested. His absence, therefore, may have been “without fault” under the terms set out in the discussion relating to Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 in Part IV, paragraph 10c(6), Manual for Courts-Martial, 1984. For that reason, and in the interest of judicial economy, as in United States v. Lee, supra, we will set aside the finding of guilty to specification 1 under Charge I and dismiss that offense.

In contrast to the handling of the accused’s answers concerning his failure to report for quarters on time, we note that the judge did pursue in detail a possible defense to specification 2 of Charge I raised by the accused’s statement that his absence was caused by car trouble and lack of funds. The judge, through additional questions, established that the accused’s asserted car trouble could have been reasonably foreseen and that his failure to take the necessary precautions to ensure his return to Coast Guard Base, Mayport at the time required precluded a possible “without fault” defense. Accordingly, the plea of guilty to specification 2, Charge I is deemed to be provident.

The third absence offense was alleged to have covered the period from “on or about 0930, 14 June 1988 [to] ... on or about 1530, 15 June 1988.” Specification 3 of Charge I from Charge Sheet, Record of Trial between pages 9 and 10. The accused again made statements that were inconsistent in certain respects with the alleged offense. In this instance, his answers conflicted with a plea of guilty to the time the alleged absence commenced. The accused stated that at approximately 0900, 14 June 1988, he had received permission to go to sick call to refill a prescription and was there for that purpose from approximately 0935 to 1100. While that statement prevents approval of the absence as alleged, the accused readily acknowledged that at approximately 1100 he left sick bay and went to his girl friend’s house, without permission, remaining there until he returned to the base at 1530 the next day. Accordingly, as in United States v. Sprague, 25 M.J. 743, 746 (ACMR 1987), we have no hesitation affirming an absence from 1100, 14 June 1988 to 1530, 15 June 1988.

The accused’s irreconcilable statements were not limited to the absence offenses. During the judge’s inquiry into the larceny allegation, the accused said he intended to return the money that was the subject of the larceny. This answer is incompatible with an essential element of that offense, the intent to permanently deprive the owner or another person of the use or benefit of the property. Despite the judge’s further questioning on this matter, the accused continued to adhere to the position that he intended to return the money. Notwithstanding the accused’s statement in this regard, the judge accepted the plea and entered a finding of guilty to larceny, possibly because of the following explanation provided by defense counsel:

[1011]*1011DC: His [the accused’s] response is your honor, that .. that he intended to return the money, but that he finds and feels that there is sufficient evidence to support that he intended to permanently deprive Hamilton of his money.

Record of trial at 49.

Based on that comment, the judge questioned the accused further, as follows:

MJ: Is .. is that correct?
ACCUSED: Yes, your honor.
MJ: In viewing all the evidence then you think the evidence would be sufficient? ACCUSED: Yes, your honor.
MJ: To prove legally the intent to permanently deprive. Is that correct? ACCUSED: Yes, your honor.

Unfortunately, reliance on these assurances by the accused and counsel are, under the circumstances of this case, insufficient to support a guilty plea to larceny.

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39 M.J. 1078 (U S Coast Guard Court of Military Review, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
28 M.J. 1008, 1989 CMR LEXIS 618, 1989 WL 86528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pillow-cgcomilrev-1989.