United States v. Reap

39 M.J. 653, 1993 CMR LEXIS 651, 1993 WL 574373
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedOctober 18, 1993
DocketNMCM 91 2722
StatusPublished
Cited by4 cases

This text of 39 M.J. 653 (United States v. Reap) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Reap, 39 M.J. 653, 1993 CMR LEXIS 651, 1993 WL 574373 (usnmcmilrev 1993).

Opinions

MOLLISON, Senior Judge:

The principal issue in this appeal from a general court-martial conviction is whether the appellant’s pleas of guilty were providently entered. We conclude that they were and affirm.

The appellant was charged with conspiring to dispose wrongfully of military property, violating a lawful general regulation by wrongfully possessing privately owned firearms, dealing in captured or abandoned enemy property, and wrongfully disposing of military property in violation of Articles 81, 92, 103, and 108, respectively, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 892, 903, 908. The appellant was tried in Al Jubail, Saudi Arabia, on 2 April 1991. Pursuant to a pretrial agreement, the appellant pled guilty to the conspiracy, the orders violation and the wrongful disposition of military property offenses, and not guilty to the offense of dealing in captured or abandoned enemy property. A military judge, sitting alone, sentenced the appellant to be confined for 15 months, to forfeit all pay and allowances, to be reduced to pay grade E-l, and to be discharged from the Marine Corps with a bad-conduct discharge. The convening authority suspended confinement in excess of ten months, but otherwise approved the sentence as adjudged.1 The appellant’s case is now before this Court for review in accordance with Article 66, UCMJ, 10 U.S.C. § 866.

The appellant asserts four errors were committed in the course of his court-martial proceedings.2 They concern the providence of his guilty pleas, the admissibility of a document offered during the pre-sentencing procedure, and the appropriateness of the sentence.

An accused may not enter inconsistent, improvident or uninformed pleas of guilty. UCMJ, art. 45, 10 U.S.C. § 845. Before the military judge may accept an accused’s plea of guilty, he must personally inform the accused of the nature of the offense to which the plea is offered and must personally inquire into the factual basis for the plea. Rule for Courts-Martial (R.C.M.) 910(c), (e), Manual for Courts-Martial (MCM), United States, 1984; United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247, 1969 WL 6059 (1969). Inconsistencies and apparent defenses must be resolved or the guilty pleas must be rejected by the military judge. United States v. Jemmings, 1 M.J. 414 (C.M.A.1976); United States v. Jackson, 23 M.J. 650 (N.M.C.M.R.1986), petition denied, 24 M.J. 405 (C.M.A.1987). The military judge is not required “to embark on a mindless fishing expedition to ferret out or negate all possible defenses or inconsistencies.” Jackson, 23 M.J. at 652. Rather, the military judge is required to deal with potential issues raised in the providence inquiry or during the trial that indicate an inconsistency or a defense. Id. When the accused’s responses reasonably raise the question of a [656]*656defense, the military judge must make a more searching inquiry. United States v. Timmins, 21 U.S.C.M.A. 475, 45 C.M.R. 249, 1972 WL 14168 (1972). In short, a provident plea of guilty is one that is knowingly, intelligently, and consciously entered and is accurate and consistent, both factually and legally. United States v. Sanders, 33 M.J. 1026 (N.M.C.M.R.1991).

A Court of Military Review may not set aside a finding of guilty or the sentence on the basis of an error of law unless the error is materially prejudicial to the substantial rights of the appellant. UCMJ, art. 59(a), 10 U.S.C. § 859(a). Claims of error concerning findings based on guilty pleas can generally be articulated as follows: (1) something was omitted in the guilty plea inquiry, such as an advisement or a particular question, and/or (2) the accused set up matter that is legally or factually inconsistent with the plea of guilty. If the claim of error concerns the former, that is, an advisement or the scope of the questioning, a Court of Military Review will examine the entire record to ascertain whether the accused was adequately advised and whether his admissions reasonably support the conclusion that the plea is factually accurate. See United States v. Jones, 34 M.J. 270 (C.M.A.1992); United States v. Walker, 34 M.J. 264 (C.M.A. 1992); United States v. Crouch, 11 M.J. 128 (C.M.A.1981); United States v. Roller, 37 M.J. 1093 (N.M.C.M.R.1993) (en banc). As to the latter, the record must contain some reasonable ground for finding an inconsistency between the plea and the accused’s statements, and reversal will not follow from the mere possibility of a conflict. United States v. Logan, 22 U.S.C.M.A. 349, 47 C.M.R. 1, 1973 WL 14641 (1973); United States v. Logan, 31 M.J. 910 (A.F.C.M.R.1990); United States v. Tichy, 50 C.M.R. 526, 1975 WL 15669 (N.C.M.R.1975). “The bottom line ... is that rejection of the plea requires that the record of trial show 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). See also United States v. Newsome, 35 M.J. 749, 751 (N.M.C.M.R. 1992).

The appellant was charged with two offenses in connection with AK-47 assault rifles. In Charge II, he was charged with violating a lawful general order of United States Central Command (USCENTCOM) by wrongfully possessing two AK-47 assault rifles in the USCENTCOM area of responsibility, contrary to Article 92, UCMJ, 10 U.S.C. § 892. This offense allegedly occurred in A1 Jubail, Saudi Arabia, from about 1 January 1991 to about 16 March 1991. In Charge III, the appellant was charged with wrongfully dealing in certain captured or abandoned enemy property, to wit: two AK-47 assault rifles of a value in excess of $100.00, in violation of Article 103, UCMJ, 10 U.S.C. § 903. This offense allegedly occurred in A1 Jubail and Ras al Ghar, Saudi Arabia, from about 1 January 1991 to about 20 March 1991. Pursuant to a plea bargain agreement, the appellant pled guilty to the orders violation and not guilty to the Article 103 offense. The Government withdrew with prejudice the Article 103 offense before entry of findings. Record at 47.

The military judge examined the appellant on the factual basis of his guilty pleas before the military judge accepted them.

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United States v. Dawson
50 M.J. 599 (Navy-Marine Corps Court of Criminal Appeals, 1999)
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43 M.J. 61 (Court of Appeals for the Armed Forces, 1995)
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41 M.J. 556 (Navy-Marine Corps Court of Criminal Appeals, 1994)
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Bluebook (online)
39 M.J. 653, 1993 CMR LEXIS 651, 1993 WL 574373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-reap-usnmcmilrev-1993.