United States v. Sweet

38 M.J. 583, 1993 WL 404740
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedSeptember 23, 1993
DocketNMCM 92 00601
StatusPublished
Cited by13 cases

This text of 38 M.J. 583 (United States v. Sweet) 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. Sweet, 38 M.J. 583, 1993 WL 404740 (usnmcmilrev 1993).

Opinion

LAWRENCE, Judge:

I.

Appellant pled guilty at a general court-martial to two specifications of indecent acts with a child under 16 years of age, in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. The military judge sentenced him to be confined for 9 months, to forfeit all pay and allowances, and to be dismissed from the Naval Service. The convening authority approved the sentence but, in accordance with the pretrial agreement, suspended confinement in excess of 6 months. Before this Court, appellant assigned five errors.1 We specified an additional issue,2 and in his brief in response to the specified issue, the appellant sought to file a slightly reworded version as a sixth assigned error. We decide the issue as specified.

II.

At the time of the offenses, appellant was a midshipman at the U.S. Naval Academy, having been frocked previously to Electrician’s Mate Second Class after almost 2 years of enlisted service. At the Academy, he become friends with a local family. A 14-year-old girl in that family is the victim of the offenses which came to light after appellant graduated and entered active duty as a naval officer. Pursuant to plea negotiations, appellant waived the Article 32, UCMJ, 10 U.S.C. § 832, pretrial investigation in the case and pled guilty pursuant to a pretrial agreement which required him to enter into a stipulation of fact concerning the two offenses.

The providence inquiry was brief. It began with the military judge reading the elements of the offense, omitting the facts alleged in the specifications. He then explained the Article 134, UCMJ, 10 U.S.C. § 934, terminal element3 and defined an indecent act. Appellant stated that he understood this advice. Next, the military judge was given a stipulation of fact by defense counsel. The two-page, single-spaced document is detailed, unambiguous, and free of any information that either contradicts appellant’s admission of the elements or raises matter inconsistent with his pleas of guilty. Appellant signed the stipulation which contains his averment that the facts contained in it are true. On [586]*586the record, appellant said he understood or admitted that (1) the facts in the stipulation are deemed to exist and could not be contradicted by other facts, (2) the stipulation would not be accepted without his specific consent, (3) he had discussed the stipulation with his defense counsel, (4) the facts would be used to determine his guilt, (5) in entering into it he waived his rights against self-incrimination, to a trial of the facts, and to confront and cross-examine witnesses, (6) the stipulation would be considered in determining the providence of the plea, (7) the stipulation was an admission of guilt, (8) and he voluntarily offered to enter into the stipulation as part of plea bargain agreement negotiations. Appellant expressly consented to the admission of the stipulation.

After reading the stipulation, the military judge directed appellant’s attention to it, and the following exchange occurred:

MJ: ____ Ensign Sweet, Specification 1 and 2 allege that you committed certain acts. The Stipulation details those acts. For the record, do you admit that those acts were indecent? That is, that they were acts which manifested that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals with respect to sexual relations?
ACC: Yes, sir.

Record at 21. The military judge then determined through brief questions followed by “yes” or “no” answers by appellant that the acts described in the stipulation were done without justification or excuse and without authority or permission from anyone. Appellant admitted that (1) at the time of the offenses he was not suffering from a mental disease or defect, (2) no one forced or coerced him into committing the acts, (3) he did not commit them to save himself or anyone else from serious bodily injury, and (4) if known, the acts would harm the reputation of the Naval Service and lower it in the public esteem.

After making minor changes in the specifications regarding the dates of the offenses, the military judge then re-read the elements, this time adding specific facts. For Specification 1, the record contains the following dialogue:

MJ: ____ That on or about June 1990, you committed a certain act upon the body of ... [victim] by caressing her breasts, caressing her vagina, and digitally penetrating her vagina;
Second, that ... [victim] was at the time not your spouse and under the age of 16;
Third, that your act was indecent;
Fourth, that you committed the act with the intent to gratify your lust, passion and sexual desires; and
Fifth, that under the circumstances, your conduct was of a nature to bring discredit upon the armed forces.
Do you honestly believe and admit that taken together those five elements correctly describe what you did?
ACC: Yes, sir, they do.
MJ: Do you believe that what you did is wrong?
ACC: Yes, sir, I do.

Record at 22-23. An identical explanation and inquiry, tailored to the facts in Specification 2, followed.

III.

Appellant contends that his guilty pleas were improvident because they lack a factual basis in the record. This inadequacy allegedly results for two reasons: (1) the facts elicited from appellant on the record do not constitute a factual basis for the guilty pleas, and (2) the accompanying stipulation of fact may not form that basis because the military judge did not inquire into the underlying factual basis for the stipulation. We hold that a factual basis for appellant’s guilty pleas was established by the combination of (1) appellant’s admission under oath that the tailored elements of the offenses, read to appellant in court by the military judge, accurately describe what he did and (2) the military judge’s acceptance of a detailed and easily understood stipulation of fact that was not inconsistent with the pleas of guilty. A military judge is not required in every case to ques[587]*587tion the accused on the record to elicit oral statements of fact that simply repeat or paraphrase the facts contained in a stipulation of fact offered in support of guilty pleas before the judge may accept and consider the stipulation as part of the factual basis for those pleas. More detailed questioning of the accused is strongly encouraged, however, and may be required depending on the nature of the case and the contents of the stipulation.

We conclude that the military judge in this case could consider the stipulation of fact accompanying the providence inquiry in determining that a factual basis for the guilty pleas existed.

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Bluebook (online)
38 M.J. 583, 1993 WL 404740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sweet-usnmcmilrev-1993.