United States v. Lamica ( 2019 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39423
________________________
UNITED STATES
Appellee
v.
David M. LAMICA
Technical Sergeant (E-6), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 14 June 2019
________________________
Military Judge: Joseph S. Imburgia.
Approved sentence: Dishonorable discharge, confinement for 20 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 14 November 2017 by GCM convened at Moody Air Force Base,
Georgia.
For Appellant: Major Todd M. Swensen, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain Mi-
chael T. Bunnell, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
Judge DENNIS delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge LEWIS joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
DENNIS, Judge:
A general court-martial consisting of a military judge sitting alone con-
victed Appellant, in accordance with his pleas and pursuant to a pretrial agree-
ment, of one specification of conspiracy to commit larceny, one specification of
United States v. Lamica, No. ACM 39423
violation of a lawful general regulation, and one specification of larceny of mil-
itary property in violation of Articles 81, 92, and 121, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 881, 892, 921. 1 The military judge sentenced Ap-
pellant to a dishonorable discharge, confinement for 30 months, forfeiture of
all pay and allowances, and reduction to the grade of E-1. In accordance with
the pretrial agreement, the convening authority approved confinement for only
20 months, but otherwise approved the sentence as adjudged.
Appellant raises four issues on appeal: (1) whether the military judge
abused his discretion in accepting Appellant’s guilty plea to the larceny charge
by failing to establish a sufficient factual basis that the United States Air Force
was the victim; (2) whether Appellant’s conviction for larceny was legally suf-
ficient; (3) whether the staff judge advocate’s recommendation (SJAR) and ad-
dendum failed to provide accurate and proper advice to the convening author-
ity regarding the convening authority’s clemency powers under Article 60,
UCMJ, 10 U.S.C. § 860; and (4) whether, in light of United States v. Robinson,
78 M.J. 578 (A.F. Ct. Crim. App. 2018), this court should set aside Appellant’s
findings and sentence because he did not freely and voluntarily enter into his
pretrial agreement. We find no prejudicial error and affirm.
I. BACKGROUND
Appellant, while serving as the noncommissioned officer in charge of the
41st Rescue Squadron at Moody Air Force Base, was assigned the responsibil-
ity of ensuring the unit had all the items it needed for an upcoming deploy-
ment. In order to fulfill this responsibility, Appellant was detailed as a Gov-
ernment Purchase Card (GPC) account holder. He was required to undergo
training and attest to his understanding regarding the appropriate use of his
GPC. Almost immediately upon his selection for this assignment, Appellant
began conspiring to take personal advantage of the Air Force’s fiscal trust.
While awaiting the arrival of his GPC, Appellant informed another GPC
account holder from his unit that the unit’s all-terrain vehicles (ATVs) were in
need of repair. Based on Appellant’s recommendation, the unit obtained a new
contractor, MudBuggies, to service the ATVs. Unbeknownst to the unit, Appel-
lant, his wife, 2 and the owner of MudBuggies had previously made an agree-
ment to steal tens of thousands of dollars from the Air Force by exploiting the
Air Force’s contractual relationship with MudBuggies. In exchange for Appel-
lant securing the Air Force contract with MudBuggies, MudBuggies paid Ap-
1All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.).
2 Appellant and his wife had divorced by the time of trial.
2
United States v. Lamica, No. ACM 39423
pellant and his wife $3,000. As part of their agreement, MudBuggies consist-
ently overcharged the Air Force for services rendered and fraudulently charged
the Air Force for items it never delivered. MudBuggies also charged the Air
Force for upgrades to Appellant’s and his wife’s personal vehicles. Over the
course of approximately three months, Appellant, his wife, and MudBuggies
stole more than $35,000 from the Air Force through their conspiracy.
Appellant eventually received two GPCs and immediately put them to per-
sonal use. Appellant made two types of purchases using his GPCs. Some of the
purchases were for items Appellant could have legitimately purchased for de-
ployment—like the .22 caliber pistol he purchased—but intended to (and ulti-
mately did) keep for himself. Other purchases were for items which would
serve the unit no purpose—like the swimwear he purchased for his wife. To
conceal his purchase of unauthorized items, Appellant altered the receipts so
that the approving officials would not see an itemized list of items. Within a
month of receiving his GPCs, Appellant used them to steal more than $26,000
worth of goods from the Air Force.
II. DISCUSSION
A. Appellant’s Conviction for Larceny
Appellant asks us to set aside his conviction for larceny on two bases: (1)
the military judge abused his discretion in accepting Appellant’s plea; and (2)
his conviction for larceny was legally insufficient. We do not address Appel-
lant’s allegation that his conviction is legally insufficient since by his plea of
guilty to larceny, Appellant’s conviction “must be analyzed in terms of provi-
dence of his plea, not sufficiency of the evidence.” United States v. Faircloth,
45 M.J. 172, 174 (C.A.A.F. 1996). We find that Appellant entered a provident
plea and the military judge did not abuse his discretion in accepting it.
1. Additional Background
Appellant pleaded guilty to stealing military property from the United
States Air Force of a value more than $500.00. As is customary in military
courts-martial, the military judge first explained the elements and definitions
of the offense of larceny to Appellant and then asked Appellant a number of
detailed questions to determine whether to accept Appellant’s plea of guilty.
After defining military property as “real or personal property owned, held or
used by one of the armed forces of the United States which either has a
uniquely military nature or is used by an armed force in furtherance of its mis-
sion,” the military judge asked Appellant to explain why he was guilty of steal-
ing military property. Appellant responded,
When purchasing the items used in the GPC card, the money
behind the card is the government’s money, and the items when
purchased legally belonged to the military. What I stole belonged
3
United States v. Lamica, No. ACM 39423
to the military. I had no authority or right to take these items
for my own use or benefit, and I was not under the mistaken
belief that I did not [sic] have the right or authority. None of the
items were lost, mislaid, or abandoned. They were purchased us-
ing the government money but taken by me for my own use. The
value of this military property was more than $500. The theft by
obtaining this property was done with the intent to permanently
deprive the government of the use and benefit of the items by
keeping it for my own use or keeping it to sell for profit. At the
time I obtained these items, I had the intent to keep them for my
own use or my benefit and not to return them for the use by the
government.
The military judge later went through the 198-page stipulation of fact out-
lining the scope of Appellant’s guilt, which included a lengthy list of items Ap-
pellant admitted he had unlawfully used his GPC to purchase. The military
judge specifically discussed the list of items contained in the stipulation and
inquired how the items listed satisfied the definition of military property. For
the items that could have been legitimately purchased for deployment, Appel-
lant explained how the items could be used for a uniquely military purpose
such as for unit morale. For items that served no military purpose, Appellant
explained that the money behind the GPC purchases belonged to the military.
Appellant also pleaded guilty to violating Air Force Instruction (AFI) 64–
117, Air Force Government Purchase Card Program, ¶ 2.3.5 (20 Sep. 2011), 3
which reads in relevant part,
A cardholder who makes unauthorized purchases, allows others
to use the card, or carelessly uses the GPC shall be liable to the
Government for the total dollar amount of unauthorized pur-
chases made in connection with the misuse or negligence. . . .
The Government shall be liable for use of GPCs by authorized
cardholders.
2. Law and Analysis
We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). In
discharging this duty, we review whether the record before us contains a sub-
stantial basis in law and fact to question the plea. United States v. Prater, 32
M.J. 433, 436 (C.M.A. 1991).
3 This version of the AFI was superseded by a subsequent version dated 22 June 2018.
Paragraph 2.3.5 in the 2011 version is not included in the 2018 version, but a similar
provision can be found in paragraph 13.6 of the 2018 version.
4
United States v. Lamica, No. ACM 39423
Relying heavily on United States v. Cimball Sharpton, 73 M.J. 299
(C.A.A.F. 2014), Appellant argues that there was no factual basis upon which
to accept his plea because there is no evidence that “the Air Force paid the
GPC-issuing financial institution the full amount owed for the alleged unau-
thorized purchases.” We disagree.
To begin with, the facts of Cimball Sharpton are notably distinguishable
from the facts of the case now before us. Though the appellant in Cimball
Sharpton was also charged with misusing her GPC to purchase personal items,
she pleaded not guilty, but stipulated to the fact that the Defense Finance and
Accounting Service (DFAS) paid the financial institution that issued the GPC.
On appeal, the United States Court of Appeals for the Armed Forces (CAAF)
considered whether the Air Force was the appropriate victim in the case. Point-
ing to a 2002 amendment to the Manual for Courts-Martial, the CAAF noted
that “[w]rongfully engaging in a credit, debit, or electronic transaction to ob-
tain goods or money is an obtaining-type larceny by false pretense. Such use to
obtain goods is usually a larceny of those goods from the merchant offering
them.” Id. at 301 (citing Manual for Courts-Martial, United States (2002 ed.),
pt. IV, ¶ 46.c.(1)(h)(vi)). The CAAF held that based on the evidence that the Air
Force agreed to pay for all GPC purchases, it was the Air Force rather than the
issuing bank that suffered the financial loss resulting from the larceny.
Notably, the CAAF later clarified its ruling in Cimball Sharpton:
Unfortunately, the language we used focused on the Air Force as
‘the victim,’ and the one who ‘suffered the financial loss.’ More
accurately, it should have stated that the Air Force was an ap-
propriate person to allege in the larceny specification because it
was an entity from which the appellant wrongfully obtained
goods or money. The appellant – the Air Force’s agent – exceeded
her authority and abused her role as an agent by either obtain-
ing money from the Air Force by wrongfully inducing it to pay
funds to U.S. Bank as if the charges were, in fact, authorized
purchases, or by wrongfully obtaining goods from the Air Force
by keeping goods that she purchased without authority but that,
in fact, belonged to the Air Force.
United States v. Williams, 75 M.J. 129, 134 (C.A.A.F. 2016) (quoting Cimball
Sharpton, 73 M.J. at 301–02).
The factors the CAAF points to in its clarification of Cimball Sharpton are
also applicable to Appellant’s case. Here, Appellant likewise exceeded his au-
thority as an agent of the Air Force by wrongfully inducing it to pay funds for
items that were not authorized or by keeping goods that in fact belonged to the
Air Force. Appellant argues that, “[u]nlike [Cimball] Sharpton, there was no
factual basis or evidence in the case at bar that DFAS or the Air Force paid the
5
United States v. Lamica, No. ACM 39423
GPC-issuing financial institution the full amount owed for the alleged unau-
thorized purchases.” But Appellant’s reliance on the absence of this particular
fact ignores a critical difference between his case and Cimball Sharpton—Ap-
pellant pleaded guilty.
Because Appellant pleaded guilty, we apply a different standard of review
than the one applied in Cimball Sharpton. In Cimball Sharpton, the CAAF
considered “whether, after reviewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential el-
ements of the crime beyond a reasonable doubt.” 73 M.J. at 301 (citing United
States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011)). When reviewing a military
judge’s acceptance of a guilty plea, we do not “speculate post-trial as to the
existence of facts which might invalidate an appellant’s guilty pleas.” Fair-
cloth, 45 M.J. at 174 (quoting United States v. Johnson, 42 M.J. 443, 445
(C.A.A.F. 1995)). Rather, we determine “the factual circumstances admitted by
the accused which objectively support his plea.” United States v. Shearer, 44
M.J. 330, 334 (C.A.A.F. 1996) (internal citations omitted). Here, Appellant
himself provided the factual basis upon which to accept his plea when he ad-
mitted that the items he stole belonged to the Air Force. Contrary to Appel-
lant’s assertion that he merely agreed with the military judge’s conclusion that
the Air Force was the victim of his crimes, Appellant provided several tailored
responses to the military judge’s inquiries as to why each item he stole satisfied
the definition of military property due to either its uniquely military nature,
its use in furtherance of the Air Force mission, or the Air Force’s greater pos-
sessory interest in the item purchased.
Notwithstanding the fact that Appellant stole some items which served a
legitimate military purpose and others which did not, there can be no argu-
ment that the Air Force had a greater possessory interest in all of the items
Appellant stole. Indeed, Appellant pleaded guilty to violating the very provi-
sion of AFI 64–117 that clearly states, “[t]he Government shall be liable for use
of GPCs by authorized cardholders.” Appellant was such a cardholder. He did
not steal the GPC; he was properly trained and authorized to use it. It is there-
fore of no consequence that there was no evidence of who paid the GPC bill. As
the CAAF noted in Williams, “an Article 121, UCMJ, conviction does not turn
on identifying the ‘victims,’ ‘impact,’ and ‘loss’ as those terms are commonly
used and employed. Rather, it requires, inter alia, that an appellant steal
something from a person who owns it or has a greater possessory interest in it
than the appellant.” Williams, 75 M.J. at 130 (citing United States v. Lubasky,
68 M.J. 260, 263 (C.A.A.F. 2010)). By Appellant’s own admission, he stole from
the Air Force. We find no substantial basis upon which to question his plea and
therefore find it provident.
6
United States v. Lamica, No. ACM 39423
B. Appellant’s Pretrial Agreement to Assist the Government
Prior to trial, Appellant entered into a pretrial agreement with the conven-
ing authority in which Appellant offered, inter alia, to plead guilty. In exchange
for Appellant’s offer, the convening authority agreed to not approve any sen-
tence of confinement in excess of 20 months. The appendix to Appellant’s offer
of pretrial agreement also included the following provision:
After sentence is adjudged, [the convening authority] will grant
[Appellant] testimonial immunity, and [Appellant] agrees to
provide the Government information regarding his knowledge of
other individuals’ participation in larceny, fraud, and Govern-
ment Purchase Card abuse. [Appellant] will fully cooperate with
any related investigations and will testify truthfully in any re-
sulting courts-martial.
Appellant raises two issues with respect to his pretrial agreement to assist
the Government: (1) that the Staff Judge Advocate (SJA) failed to properly ad-
vise the convening authority that Appellant was entitled to greater clemency
rights due to his “substantial assistance;” and (2) that Appellant’s guilty plea
should be set aside because Appellant entered into his pretrial agreement with
the understanding that the assistance he provided the Government might per-
suade the convening authority to grant clemency. We address each allegation
in turn.
1. Advice to the Convening Authority.
a. Additional Background
Upon the completion of Appellant’s court-martial, the SJA prepared a rec-
ommendation advising the convening authority on what action could be taken
on Appellant’s sentence. The SJA specifically advised the convening authority
that, in accordance with the pretrial agreement, “confinement would be limited
to 20 months.” The SJA further advised the convening authority that he had
“the authority to disapprove, commute, or suspend in whole or in part the re-
duction in grade, and the forfeitures.” The SJA did not comment on whether
the convening authority could take action to disapprove, commute, or suspend
in whole or in part the adjudged dishonorable discharge.
Following receipt of the SJAR, Appellant’s trial defense counsel submitted
a request for clemency on his behalf. She asked the convening authority to re-
duce Appellant’s dishonorable discharge to a bad-conduct discharge. She pro-
vided several reasons in support of her request and specifically informed the
convening authority that “since [Appellant] has been of substantial assistance
to the Government after his trial, you are able to take actions normally forbid-
den by Congress in accordance with Article 60(c)(4)(B).”
7
United States v. Lamica, No. ACM 39423
The SJA later prepared an addendum to the SJAR, but did not comment
on trial defense counsel’s statement of law. Instead he simply indicated that
he reviewed the clemency submission and that his “earlier recommendation
remained unchanged.” After considering both the SJAR and Appellant’s clem-
ency submission, the convening authority took action in accordance with the
SJA’s recommendation—approving only 20 months of confinement, but other-
wise approving the sentence as adjudged.
b. Law and Analysis
“Proper completion of post-trial processing is a question of law, which this
court reviews de novo.” United States v. LeBlanc, 74 M.J. 650, 660 (A.F. Ct.
Crim. App. 2015) (citing United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct.
Crim. App. 2004)) (additional citations omitted). Failure to comment in a
timely manner on matters in the SJAR or matters attached to the SJAR waives
or forfeits any later claim of error unless there was plain error. Rule for Courts-
Martial (R.C.M.) 1106(f)(6); United States v. Kho, 54 M.J. 63, 65 (C.A.A.F.
2000). In analyzing for plain error, we assess whether “(1) there was an error;
(2) it was plain or obvious; and (3) the error materially prejudiced a substantial
right.” Kho, 54 M.J. at 65 (citations omitted).
Article 60, UCMJ, governs the convening authority’s ability to grant clem-
ency. Article 60(c)(4)(B), the provision of the statute on which Appellant relies,
states,
Upon the recommendation of the trial counsel, in recognition of
the substantial assistance by the accused in the investigation or
prosecution of another person who has committed an offense, the
convening authority . . . shall have the authority to disapprove,
commute, or suspend the adjudged sentence in whole or in part
....
Article 60(c)(4)(B), UCMJ, 10 U.S.C. § 860(c)(4)(B).
Appellant asserts that the SJAR was erroneous in that it failed to apprise
the convening authority of the Article 60(c)(4)(B) provision and “the ‘substan-
tial assistance’ Appellant had provided to investigators.” We disagree.
As applied to Appellant’s case, Article 60, UCMJ, authorized only two forms
of clemency: (1) the convening authority could approve, disapprove, commute,
or suspend a sentence in whole or in part pursuant to the terms of the pretrial
agreement in accordance with Article 60(c)(4)(C); and (2) the convening author-
ity could disapprove, commute, or suspend in whole or in part the adjudged
reduction in grade and the adjudged forfeitures in accordance with Article
8
United States v. Lamica, No. ACM 39423
60(c)(2)(B). Both during clemency4 and on appeal, Appellant asserts that Arti-
cle 60(c)(4)(B) authorized a third form of clemency: the convening authority
could reduce Appellant’s dishonorable discharge to a bad-conduct discharge
based on Appellant’s “substantial assistance” to the Government. But Appel-
lant fails to satisfy the threshold requirement for Article 60(c)(4)(B) to apply—
the recommendation of trial counsel.
Contrary to Appellant’s assertions, Article 60(c)(4)(B) cannot be read to au-
thorize greater clemency than its plain language provides. Appellant invites
us to adopt a broader reading of the article because “[o]therwise, there would
be no purpose for the substantial assistance provision in the UMCJ.” We de-
cline to do so. 5 Even if we found fault in the language of Article 60(c)(4)(B), we
are not authorized to rewrite a statute because we “deem its effects susceptible
of improvement.” Badaracco v. Commissioner, 464 U.S. 386, 398 (1984) (cita-
tions omitted). Our assessment of the existence or quality of Appellant’s assis-
tance is irrelevant to our analysis where, as here, Congress created an unam-
biguous limitation on the convening authority’s power to grant the requested
clemency: that the power exists only “[u]pon the recommendation of the trial
counsel.” Article 60(c)(4)(B), 10 U.S.C. § 860(c)(4)(B). There being no such rec-
ommendation in Appellant’s case, the SJA did not err in failing to apprise the
convening authority of the provision.
4 Trial defense counsel’s statement to the convening authority that Article 60(c)(4)(B)
authorized otherwise forbidden clemency was a misstatement of the law. As a general
matter, “[w]here trial defense counsel misstates the law in a clemency submission to
the convening authority, the staff judge advocate is duty-bound to correct it in the
[a]ddendum to ensure that the convening authority exercises that authority in con-
formity with the law.” United States v. Troester, No. ACM S32385, 2017 CCA LEXIS
332, at *6 (A.F. Ct. Crim. App. 12 May 2017) (unpub. op.), rev. denied, 76 M.J. 429
(C.A.A.F. 2017). Though not raised by Appellant, we considered whether this error
required new post-trial processing. Because trial defense counsel’s misstatement of the
law incorrectly informed the convening authority he had more, rather than less, dis-
cretion than he actually had, we find no colorable showing of possible prejudice. United
States v. Johnson, 26 M.J. 686, 689 (A.C.M.R. 1988), aff’d, 28 M.J. 452 (C.M.A. 1989);
cf. United States v. Zegarrundo, 77 M.J. 612 (A.F. Ct. Crim. App. 2018).
5 We note that the United States Supreme Court rejected a similar argument in Melen-
dez v. United States, 518 U.S. 120 (1996). In Melendez, the Court interpreted a federal
statute, 18 U.S.C. § 3353(e), which authorizes a judge to depart from a statutory min-
imum “[u]pon motion of the government . . . so as to reflect a defendant’s substantial
assistance in the investigation or prosecution of another person who has committed an
offense.” Melendez, 518 U.S. at 124 (quoting 18 U.S.C. § 3353(e)). Although the prose-
cutor moved the district court to depart from the sentencing guidelines, the Court
found that, because the prosecutor failed to move specifically for the district court to
depart below the statutory minimum, the judge had no authority to do so. Id. at 125–
26, 131.
9
United States v. Lamica, No. ACM 39423
2. Misunderstanding of the Pretrial Agreement
In a related claim, Appellant asserts that because he erroneously believed
his assistance to the Government could have led to greater clemency relief, he
did not freely and voluntarily enter into his plea agreement. Relying on this
court’s holding in Robinson, Appellant asks us to set aside the findings and
sentence in his case. We decline to do so.
a. Additional Background
After announcing Appellant’s sentence, the military judge reviewed the ap-
pendix to Appellant’s offer for pretrial agreement and discovered the aforemen-
tioned provision requiring Appellant to provide information to the Govern-
ment. The military judge then explained to Appellant that the provision “re-
quires you to, once you are provided testimonial immunity, agree to provide
the government information that is listed there.” The military judge then had
a lengthy exchange with trial counsel confirming that Appellant had not yet
been granted immunity and that there was no end date to Appellant’s required
participation. Both Appellant and his trial defense counsel agreed with the
military judge’s interpretation of the term requiring Appellant to provide in-
formation to the Government.
b. Law and Analysis
The interpretation of a PTA is a question of law, which we review de novo.
United States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009); United States v.
Acevedo, 50 M.J. 169, 172 (C.A.A.F. 1999). “To ensure that the record reflects
the accused understands the pretrial agreement and that both the Government
and the accused agree to its terms, the military judge must ascertain the un-
derstanding of each party during the inquiry into the providence of the plea.”
United States v. Smith, 56 M.J. 271, 272–73 (C.A.A.F. 2002). R.C.M. 910(h)(3)
permits the military judge to take corrective actions “[i]f the military judge
determines that the accused does not understand the material terms of the
agreement.” Whether a term is material to the agreement “depends upon the
circumstances of the case.” Smith, 56 M.J. at 273.
We begin our analysis by noting that Appellant’s reliance on Robinson is
misplaced. In Robinson, this court found that a provision requiring the conven-
ing authority to “consider disapproving, commuting, mitigating or suspending
the entire sentence or any portion thereof as a matter of clemency when taking
action” was an impermissible term because it was inconsistent with the plain
language of Article 60(c)(4)(C). Robinson, 78 M.J. at 583. Because the appellant
relied on the provision when he agreed to plead guilty, his guilty plea was
found improvident and the findings and sentence were set aside. Id. at 583–
84.
10
United States v. Lamica, No. ACM 39423
Turning now to Appellant’s case, we look “first to the language of the agree-
ment itself.” Acevedo, 50 M.J. at 172. We find that, unlike Robinson, the provi-
sion at issue in Appellant’s pretrial agreement did not purport to impermissi-
bly expand the convening authority’s power to grant clemency pursuant to Ar-
ticle 60. By its plain language, the provision required the convening authority
to grant Appellant testimonial immunity and, in turn, required Appellant to
provide information to the Government. Here, the military judge adequately
explained the provision to Appellant and ensured both parties shared his in-
terpretation of the provision at issue. Smith, 56 M.J. at 272–73.
Though Appellant acknowledges “there was no per se promise here,” he
claims that his “understanding of what the convening authority could have
done influenced his decision to enter into the [pretrial agreement].” We are not
persuaded. “Rejection of a guilty plea on appellate review requires that the
record of trial show a substantial basis in law and fact for questioning the
guilty plea.” United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002) (citing
United States v. Prater, 32 M.J. 433, 436 (U.S.C.M.A. 1991)); Article 45(a),
UCMJ, 10 U.S.C. § 845(a). Even assuming arguendo that Appellant misunder-
stood the provision at issue, we find nothing in the record that supports his
misunderstanding. We find particularly significant the fact that Appellant had
not provided any assistance, much less “substantial assistance,” at the time he
entered into the pretrial agreement. He merely agreed that he would do so once
the convening authority had granted him testimonial immunity. As the mili-
tary judge made clear, this prerequisite could happen at some indefinite point
in the future, i.e., after the post-trial processing of Appellant’s case. The fact
that the terms of the provision were fulfilled prior to Appellant’s opportunity
to submit clemency appears to be the result of fortuitous timing rather than
evidence of Appellant’s intent in offering to plead guilty.
Unlike the appellant in Robinson, Appellant did not enter into the pretrial
agreement because he believed the convening authority could reduce his dis-
honorable discharge to a bad-conduct discharge. In a declaration to this court,
Appellant asserts that he believed “the convening authority might have some
mercy on [him] for admitting [his] guilt and providing information in order to
prosecute other perpetrators and recover missing government property.” Thus,
Appellant’s plea did not “[rest] in any significant degree on a promise or agree-
ment of the prosecutor, so that it can be said to be part of the inducement or
consideration.” Santobello v. New York, 404 U.S. 257, 262 (1971).
We, like the military judge, find that Appellant entered his guilty plea vol-
untarily and with full knowledge of its meaning and effect. We therefore find
Appellant’s plea provident and decline to grant the requested relief.
11
United States v. Lamica, No. ACM 39423
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c) (2016). Accordingly, the
findings and sentence are AFFIRMED.
FOR THE COURT
JULIE L. ADAMS
Deputy Clerk of the Court
12