United States v. Williams

27 M.J. 671, 1988 CMR LEXIS 905, 1988 WL 124544
U.S. Army Court of Military Review·Decided November 18, 1988·No. ACMR 8701643·Published·Cited by 1 cases

Opinion

OPINION OF THE COURT

SMITH, Judge:

Appellant was convicted, pursuant to his pleas, of distribution of marijuana (three specifications) and possession of marijuana in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (Supp. IY 1986) [hereinafter UCMJ]. Before this [673]*673court, he argues, inter alia,1 that his pleas were improvident, asserting that the military judge failed to resolve matters inconsistent with his pleas.

I

During the providence inquiry appellant related that Sergeant (SGT) Smith (an informant for a Drug Suppression Team) approached him about obtaining marijuana. Sergeant Smith, who was formerly appellant’s platoon sergeant, was the charge-of-quarters at the time. Appellant explained to the military judge that “at that time I was rather, you know — didn’t know what to think. An NCO and all — especially, I was rather reluctant.” After SGT Smith approached appellant a second time, appellant made a phone call to someone he knew was selling marijuana. The individual appellant called was not home. Sergeant Smith contacted appellant a third time. On this occasion (Specification 1 of the Charge), appellant and SGT Smith, accompanied by SGT Holmes (an undercover member of the Drug Suppression Team), went to an apartment in El Paso, Texas, just outside of Fort Bliss. Appellant entered the apartment, came out and provided SGT Holmes with 26.13 grams of marijuana.

Appellant related at trial that, after the initial distribution, SGT Holmes called him several times requesting marijuana. Appellant subsequently agreed to obtain the marijuana for SGT Holmes. Appellant, however, stated at trial: “I was still, you know, wasn’t something, you know, I really wanted to do but they kept — they called me a couple of times. Sergeant Smith, I mean, Sergeant Holmes did — called me several times.” On this second distribution, appellant acquired 28.62 grams of marijuana from the same supplier in El Paso. He subsequently distributed it to SGT Holmes (Specification 2 of the Charge). Three days later, after “at least five or six” phone calls, appellant obtained 42.34 grams of marijuana and distributed it to SGT Holmes (Specification 3 of the Charge). Appellant was apprehended after the third distribution and was found in possession of 1.14 grams of marijuana (Specification 4 of the Charge) and a ten dollar bill from marked CID funds. Appellant claimed that he had not received any profit from the previous distributions but was given $10.00 by the supplier on this third purchase of marijuana.

During the inquiry, appellant reasoned that SGT Smith approached him about acquiring marijuana because SGT Smith may have heard from somebody “about [appellant] selling marijuana.” Later during the inquiry, the military judge specifically asked appellant why SGT Smith would approach him. Appellant responded that he had smoked marijuana in the past and that someone with whom he had smoked marijuana may have said something.

During the sentencing phase of the trial, appellant, in an unsworn statement, emphasized the fact that SGT Smith was his first platoon sergeant and that he was “kind of reluctant at first” to get the marijuana. Appellant claimed that SGT Smith asked him on a “couple of occasions” to get the marijuana. Appellant also claimed that SGT Holmes was “rather persistent” about asking for marijuana and that he called appellant “every day just about.” Appellant stated that SGT Holmes and SGT Smith were persistent, but did not “threaten [his] health or anything like that.” In response to appellant’s unsworn statement, the military judge asked both appellant and his defense counsel whether they had discussed the defense of entrapment. Appellant and defense counsel responded in the affirmative. The military judge specifically asked defense counsel whether his investigation in the case convinced him that the defense was not raised in appellant’s case. The defense counsel stated that it was not.

The military judge made no further inquiry regarding the providence of appellant’s pleas. The defense counsel, in the sentencing argument, told the court mem[674]*674bers that there was no entrapment defense in this case and that appellant was not “forced to do everything.”2 It appears that the defense counsel was not attempting to raise the defense of entrapment, but was trying to establish as a mitigating factor the fact that appellant was encouraged by a noncommissioned officer to engage in distribution of marijuana.

II

Article 45, UCMJ, requires the military judge to reject an accused’s plea if he raises matters inconsistent with the plea. See also Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 910(h)(2) [hereinafter M.C.M., 1984 and R.C.M., respectively] (if an accused makes a statement or presents evidence which is inconsistent with his plea of guilty, the military judge shall inquire into the providence of the plea). The military judge must first determine whether the accused’s comments or any other evidence reasonably raises a possible defense.3 United States v. Jemmings, 1 M.J. 414 (C.M.A.1976); United States v. Brooks, 26 M.J. 930, 932 (A.C.M.R.1988) (en banc reconsideration denied 7 Sept. 1988); United States v. Clark, 26 M.J. 589, 592-594 (A.C.M.R.), petition filed, 27 M.J. 173 (C.M.A.1988); United States v. Clayton, 25 M.J. 888, 890 (A.C.M.R.), petition denied, 27 M.J. 18 (C.M.A.1988); United States v. Johnson, 25 M.J. 553 (A.C.M.R.1987). If the matter is inconsistent, then the military judge must address the accused personally to determine whether the plea is negated by the inconsistent matter. United States v. Brooks, 26 M.J. at 932-933. See also United States v. Collins, 17 M.J. 901, 903 (A.F.C.M.R.1983), petition denied, 18 M.J. 292 (C.M.A.1984) (when a matter inconsistent with the plea is raised, the military judge must inquire of the accused his position regarding the affirmative defense); R.C.M. 910(e) discussion (“If any potential defense is raised by the accused’s account of the offense or by other matters presented to the military judge, the military judge should explain such a defense to the accused and should not accept the plea unless the accused admits facts which negate the defense.”). The military judge should ask the accused whether he has reviewed with his defense counsel the facts in his case which would raise the defense and whether he, the accused, has determined that the facts are inadequate to afford him “an effective legal defense.” United States v. Johnson, 25 M.J. 553, 554 (A.C.M.R.1987) (quoting United States v. Timmins, 45 C.M.R. 249, 253 (C.M.A.1972)). If the inconsistent matter is not resolved or negated, then the military judge must enter a plea of not guilty on behalf of the accused.

If a defense or other matter inconsistent with the plea is raised and the military judge fails to discuss the inconsistent matter with the accused, this court will then examine all of the circumstances in the record of trial to determine whether “other evidence belies the negation of the defense.” United States v. Johnson, 25 M.J. at 554.

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United States v. Williams, 27 M.J. 671, 1988 CMR LEXIS 905, 1988 WL 124544 (usarmymilrev 1988).

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