United States v. Sergeant JARED D. CRAIN ( 2020 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KRIMBILL, ARGUELLES, 1 and WALKER
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant JARED D. CRAIN
United States Army, Appellant
ARMY 20190265
Headquarters, 1st Theater Sustainment Command
John M. Bergen, Military Judge
Lieutenant Colonel Tony Y. Kim, Staff Judge Advocate
For Appellant: Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D.
Pond, JA; Major Angela D. Swilley, JA; Captain Brianna C. Tuohy, JA (on brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Captain Christopher T. Leighton, JA; Captain R. Tristan C. De Vega,
JA (on brief).
8 October 2020
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MEMORANDUM OPINION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
WALKER, Judge:
Appellant pleaded guilty to misuse of a fuel card as a violation of a lawful
general regulation. He now asserts the military judge abused his discretion in
accepting his plea because the regulation to which he ple aded guilty of violating was
not the regulation applicable to his misconduct . We agree and provide relief in our
decretal paragraph.
We review this case under Article 66, Uniform Code of Military Justice, 10
U.S.C. § 866 [UCMJ].
1
Judge Arguelles decided this case while on active duty.
CRAIN—ARMY 20190265
I. BACKGROUND
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of attempted escape from confinement,
one specification of violation of a lawful general regulation, one specification of
wrongful destruction of government property, one specification of willfully
suffering military property to be wrongfully disposed, three specifications of
wrongful use of a controlled substance, two specifications of larceny, and one
specification of wrongful appropriation, in violation of Articles 80, 92, 108, 112a,
and 121, UCMJ (2016). The military judge sentenced appellant to a bad-conduct
discharge and confinement for thirty months. Appellant received 139 days of
confinement credit for pre-trial confinement. The convening authority took no
action on the findings or sentence. 2
In 2018, appellant struggled with drug abuse and turned to stealing items from
the unit as well as shoplifting so he could pawn the items for cash in order to
purchase drugs. 3 Appellant received non-judicial punishment for misconduct related
to his drug abuse and thereafter his command initiated administrative separation
proceedings. 4 Due to his financial struggles, appellant’s chain of command
authorized his use of a government-owned vehicle and a Government Services
Administration fuel card (fuel card) in order to facilitate the required travel from
Shaw Air Force Base, South Carolina, appellant’s duty station, to For t Jackson,
South Carolina, where he was required to go in order to attend separation
appointments. 5 Appellant was authorized to use the fuel card only for purchasing
fuel for the assigned government vehicle.
2
For the reasons articulated in United States v. Coffman, 79 M.J. 820 (Army Ct.
Crim. App. 2020), we find the convening authority erred by failing to take action on
appellant’s sentence because appellant was convicted based on misconduct that
occurred both prior to and after 1 January 2019. We have considered this as part of
our review of appellant’s case and, while we find the convening authority erred, we
determine the error was neither jurisdictional nor prejudicial.
3
Appellant was diagnosed with opioid dependence, cannabis dependence, and
alcoholism.
4
Appellant received non-judicial punishment for failure to go to his appointed place
of duty, misuse of his government travel card, false official statement, wrongful
selling of military property, wrongful use of marijuana, and shoplifting. See UCMJ
art 15.
5
Shaw Air Force Base is approximately thirty-five miles from Fort Jackson.
2
CRAIN—ARMY 20190265
On 5 October 2018, appellant wrecked the government vehicle during an
unauthorized trip unrelated to his separation appointments. Appellant realized that
there were several items at his ex-wife’s home in North Carolina that he needed to
turn in before his separation from the Army. Since appellant co uld not afford to
drive his personal vehicle to North Carolina, he chose to use the government vehicle
to make the trip. While traveling on a dark road late at night, appellant swerved to
avoid hitting a deer in the road and hit an embankment, totaling th e vehicle.
Appellant removed the government license plates from the vehicle and left it with a
towing company. Appellant failed to inform his chain of command about the
accident or location of the vehicle.
Without the use of the government vehicle or the financial means to get to his
separation appointments, appellant turned to using the fuel card to obtain fuel for his
personal vehicle for travel to Fort Jackson. Appellant used the fuel card for his
personal vehicle on four separate occasions. Based on this usage, the government
charged appellant with violating “Joint Travel Regulation Number 7000.14R Volume
10 dated 2017” in violation of Article 92, UCMJ, for wrongful use of the fuel card
(the Specification of Charge I).
Appellant pleaded guilty to the offense of violating a lawful general
regulation for misusing the fuel card for his personal vehicle. The military judge
accepted appellant’s plea and concluded the providence inquiry on this offense
without requiring the government, or appellant, to specify which section or
paragraph of the charged regulation appellant violated. During appellant’s
providence inquiry into another offense , the government realized the title to the
cited regulation in the Specification of Charge I was incorrect. The government
moved to amend the charge sheet so that the charge relating to the misuse of the fuel
card accurately stated appellant violated the “Financial Management Regulation”
and not the “Joint Travel Regulation.” 6 Since neither the specification nor the
stipulation of fact alleged the specific chapter of the regulation appellant violated, at
that point the military judge required the government to have the excerpt of the
regulation marked as an appellate exhibit. The government submitted chapter 23 of
volume 10 of the regulation pertaining to the purchase card program. After a
required amendment to the stipulation of fact on this issue, to which appellant
agreed, the military judge reopened the providence inquiry into the Specification of
Charge I. The military judge repeated the elements of the offense and affirmed with
appellant that Department of Defense Financial Management Regulation 7000.14R
[DoD FMR 7000.14R] was the regulation he violated through his misuse of the fuel
card.
6
The actual title of regulation is “Department of Defense Financial Management
Regulation 7000.14R,” [DoD FMR 7000.14R].
3
CRAIN—ARMY 20190265
II. LAW AND DISCUSSION
A. Standard of Review
A military judge’s acceptance of a guilty plea is reviewed for an abuse of
discretion, whereas questions of law arising from the plea are reviewed de novo.
United States v. Murphy, 74 M.J. 302, 305 (C.A.A.F. 2015). “A military judge
abuses this discretion if he fails to obtain from the accused an adequate factual basis
to support the plea—an area in which we afford significant deference.” United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) (citing United States v.
Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)); United States v. Care, 18 C.M.A. 535,
541 (C.M.A. 1969).
When an appellant pleads guilty, any question as to his conviction “must be
analyzed in terms of providence of his plea, not sufficiency of the evidence.”
United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996). In the context of a
guilty plea, our focus is on whether the plea was provident. United States v. Cowan,
ARMY 20160031, 2017 CCA LEXIS 633, at *6 (Army Ct. Crim. App. 28 Sep. 2017)
(mem. op.). “A guilty plea is provident if the facts elicited make out each element
of the charged offense.” United States v. Harrow, 65 M.J. 190, 205 (C.A.A.F. 2007)
(citations omitted). Although the evidence is not fully developed in a guilty plea
case, see United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002), the military
judge is still “charged with determining whether there is an adequate basis in law
and fact to support the plea before accepting it. ” Inabinette, 66 M.J. at 321–22
(citation omitted).
In reviewing a military judge’s decision to accept a guilty plea, “appellate
courts apply a substantial basis test: Does the record as a whole show a substantial
basis in law and fact for questioning the guilty plea .” Id. at 322 (internal quotations
and citation omitted). As our superior court has consistently held, a providence
inquiry into a guilty plea must establish “not only that the accused himself believes
he is guilty but also that the factual circumstances as revealed by the accused
himself objectively support that plea.” Jordan, 57 M.J. at 244 (Sullivan, S.J.,
dissenting) (quoting United States v. Davenport, 9 M.J. 364, 367 (C.M.A. 1980));
see United States v. Higgins, 40 M.J. 67, 68 (C.M.A. 1994). Where an accused’s
plea inquiry fails to establish factual circumstances that support each element of an
offense, there is a substantial basis in law and fact to question a guilty plea to the
offense. Jordan, 57 M.J. at 240 (citing Faircloth, 45 M.J. at 174).
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CRAIN—ARMY 20190265
B. Appellant’s Actions Did Not Violate the Charged Regulation
Appellant asserts, and we agree, that the regulation to which he pleaded guilty
to violating is not a regulation applicable to his misuse of a fuel card. The
government charged appellant with the wrong regulation in this case. We, therefore,
find a substantial basis to question the military judge’s acceptance of appellant’s
plea of guilty to the Specification of Charge I.
An adequate factual basis for violating a lawful general regulation requires
the government to allege, and the military judge to discuss with an accused, the
specific regulation violated. The elements of a violation of Article 92, UCMJ, are:
(1) “[t]hat there was in effect a certain lawful general . . . regulation;” (2) “[t]hat the
accused had a duty to obey it;” and (3) “[t]hat the accused violated or failed to obey
the . . . regulation.” Manual for Courts-Martial, United States (2016 ed.), pt. IV, ¶
16.b.(1). In charging a violation of a lawful general regulation, a specification
“must clearly identify the specific order or regulation allegedly violated. The
general order or regulation should be cited by its identifying title or number, section
or paragraph, and date.” Rule for Courts-Martial 307(c)(3) discussion. Appellant
pleaded guilty to violating DoD FMR 7000.14R, volume 10, chapter 23, “Purchase
Card Payments,” dated April 2017. This section of the regulation is only applicable
to purchase cards and not fuel cards. Not only is there no mention of fuel cards in
that entire chapter of the regulation, there is no mention of misuse of a fuel card
being a violation of a lawful general regulation anywhere in the entire DoD FMR
7000.14R.
The military judge abused his discretion in accepting appellant’s plea to
violating a lawful general regulation because he did not have an adequate factual
basis to support the plea as charged. In this case, appellant pleaded guilty to
violating a regulation applicable to misuse of purchase cards and not fuel cards.
While both are government charge cards, each card is governed by different
regulations. Compare 41 C.F.R. § 102-34.320(a) (2020) (noting “fleet charge
card[s]” are “specifically issued” for the purpose of purchasing fuel) with 48 C.F.R.
§ 213.301 (2020) (discussing the use of government purchase cards). Furthermore,
as appellant correctly points out, government purchase, travel, and fuel cards are
separate and distinct charge cards addressed in a Department of Defense Guidebook.
See DoD Government Charge Card Guidebook for Establishing and Managing
Purchase, Travel, and Fuel Card Programs (1 October 2017) (revised 3 June 2020),
available at https://www.acq.osd.mil/dpap/pdi/pc/docs/DoD_Govt_Charge_Card_
Guide_06_03-20.pdf (cited in 48 C.F.R. § 213.301(4)).
Although the military judge correctly recognized th at the charge sheet needed
to “quote the actual provision” of the lawful order being violated, he failed to hold
the government to that standard. Unfortunately, the military judge failed to
recognize that even as amended, the regulation at issue pertained to purchase cards
5
CRAIN—ARMY 20190265
and not fuel cards. As such, the complexity of the various government purchase
cards and governing policies and regulations resulted in an oversight by all parties
involved.
Given that appellant pleaded guilty to violating a regulation that is not
applicable to the misuse of a fuel card, we find a substantial basis to question
appellant’s guilty plea and find that it was improvident. As such, we set aside and
dismiss the Specification of Charge I.
C. Sentence Reassessment
In light of our determination that the military judge erred in accepting
appellant’s plea to the Specification of Charge I, we now address whether we are
able to reassess appellant’s sentence. Having considered the entire record, we
conclude we are able to reassess the sentence and do so in accordance with the
principles articulated by our superior court in United States v. Sales, 22 M.J. 305,
307–08 (C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11, 15–16
(C.A.A.F. 2013).
There is no dramatic change in the penalty landscape by setting aside
appellant’s conviction for violating a lawful general regulation. Appellant’s
maximum sentence to confinement would be reduced only slightly from thirty-six
years and six months to thirty-four years and six months by setting aside appellant’s
conviction for the Specification of Charge I. We also recognize this case was tried
by a military judge alone, which favors reassessment by this court . United States v.
Adams, 74 M.J. 589, 593 (Army Ct. Crim. App. 2015) (finding reassessment
appropriate, in part, because a judge alone sentenced appella nt). Most importantly,
we find that the remaining charges of one specification of wrongful destruction of
government property, one specification of willfully suffering military property to be
wrongfully disposed, three specifications of wrongful use of a controlled substance,
two specifications of larceny, and one specification of wrongful appropriation
capture the gravamen of appellant’s criminal conduct.
Based on our experience as judges on this court, we are familiar with the
offense of violation of a lawful general regulation such that we may reliably
determine what sentence would have been imposed had appellant’s plea not included
this offense. Having conducted this reassessment, we affirm only so much of
appellant’s sentence as provides for a bad-conduct discharge and confinement for
twenty-nine months.
6