United States v. Price , 76 M.J. 136 ( 2017 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Richard K. PRICE Jr., Airman First Class
United States Air Force, Appellant
No. 16-0611
Crim. App. No. S32330
Argued January 11, 2017—Decided March 3, 2017
Military Judge: Marvin W. Tubbs II
For Appellant: Major Mark C. Bruegger (argued); Major
Jeffrey A. Davis (on brief); Colonel Jeffrey G. Palomino.
For Appellee: Captain Tyler B. Musselman (argued); Ger-
ald R. Bruce, Esq. (on brief).
Judge OHLSON delivered the opinion of the Court, in
which Chief Judge ERDMANN, and Judges STUCKY,
RYAN, and SPARKS, joined.
_______________
Judge OHLSON delivered the opinion of the Court.
Pursuant to his guilty pleas and pretrial agreement, Ap-
pellant was convicted at a special court-martial by a military
judge sitting alone of wrongfully using cocaine on divers oc-
casions, wrongfully using alprazolam1 on divers occasions,
wrongful possession of alprazolam with the intent to dis-
tribute, wrongful distribution of cocaine on divers occasions,
wrongful distribution of alprazolam on divers occasions, and
wrongful distribution of codeine, in violation of Article 112a,
Uniform Code of Military Justice, 10 U.S.C. § 912a (2012).
The military judge sentenced Appellant to a bad-conduct
discharge, four months of confinement, and reduction to E-1.
The convening authority approved the adjudged findings
and sentence, which the United States Air Force Court of
Criminal Appeals (CCA) then affirmed.
1 Alprazolam is an antianxiety drug that goes by the trade
name Xanax. As the charged and convicted offenses refer to alpra-
zolam, we will use that name throughout this opinion.
United States v. Price, No. 16-0611/AF
Opinion of the Court
We granted review of the following issue:
Whether the military judge abused his discretion
by forcing Appellant to admit to misconduct greater
than was necessary for a provident plea.
United States v. Price, 75 M.J. 445, 445–46 (C.A.A.F. 2016).
We conclude that the military judge’s questions during
the plea inquiry were consistent with the requirements of
Rule for Court-Martial (R.C.M.) 910(e). We further conclude
that those questions were “closely connected” to the offenses
for which Appellant was pleading guilty, and that the mili-
tary judge did not “range[] far afield during the providence
inquiry.” United States v. Holt, 27 M.J. 57, 60 (C.M.A. 1988).
We therefore hold that the military judge did not abuse his
discretion in the instant case and we affirm the decision of
the CCA.
I. Background
On March 23, 2015, Appellant, an airman first class in
the United States Air Force, entered into a pretrial agree-
ment with the convening authority. Appellant stated therein
that he understood he could withdraw his guilty plea “at any
time before sentence.” Consistent with his pretrial agree-
ment, Appellant pleaded guilty to all specifications at court-
martial.
During the providence inquiry, defense counsel objected
four times when the military judge asked questions that ex-
tended beyond the limited, generic recitation which Appel-
lant had given as the factual basis for his guilty plea on each
specification. Those four instances are reflected below:
(1) Specification 1 alleged that Appellant wrongfully used
cocaine on divers occasions. Appellant admitted to the mili-
tary judge that he had used cocaine “multiple times,” and
the following exchange occurred:
MJ: How many total times do you believe that you
used cocaine?
DC: Sir, I don’t believe that he has to answer that
question in order to plead guilty for this offense.
MJ: I believe that he does. How many times did you
use the cocaine?
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Opinion of the Court
ACC: [Conferring with counsel.] Six times, Your
Honor.
(2) Specification 2 alleged that Appellant wrongfully used
alprazolam on divers occasions. Appellant admitted to the
military judge that he had used the drug “multiple times be-
tween 1 June 2014 and 10 December 2014,” and the follow-
ing exchange occurred:
MJ: When did you use it? Was it every month dur-
ing the charged timeframe? Was there a particular
period of time?
DC: Your Honor, I’m sorry, I think we’re going to do
this a few more times but I just want to put my ob-
jection on the record. The government has charged
divers use, meaning two or more times. My client
has said he used it multiple times, meaning two or
more times. By getting into specifics as to how of-
ten he used the court is forcing him to give up evi-
dence in aggravation which is the government’s re-
sponsibility to provide the court. I understand that
there’s a difference of opinion here. I’m just going to
put the objection on the record.
MJ: Understood, but what I asked was when did he
use it specifically.
DC: No, I understand, but part of the question
though, sir, was, was it each month and so if he an-
swered, yes, it was each month then I think we
would be up to seven at least.
MJ: When did you use the Alprazolam?
ACC: [Conferring with counsel.] It was between
June 1st and to the beginning of November.
MJ: And you said it was on more than one occasion.
How many times was it?
ACC: [Conferring with counsel.] Your Honor, truth-
fully, I’m not sure of an exact number but I would
go with saying that on a weekly basis it would be
between 1 to 3 times a week.
MJ: Even though you’re not sure of the number, it
was on more than one occasion though?
ACC: Yes, sir.
(3) Specification 4 alleged that Appellant wrongfully dis-
tributed cocaine on divers occasions. Appellant admitted to
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United States v. Price, No. 16-0611/AF
Opinion of the Court
the military judge that he had distributed cocaine “at least
two times,” and the following exchange occurred:
MJ: How many times did [you distribute the co-
caine]? Your standing, objection is noted.
DC: The same objection as I’ve placed before, thank
you, Your Honor.
ACC: [Conferring with counsel.] At about [sic] six
times I distributed cocaine to him.
(4) Specification 6 alleged that Appellant wrongfully dis-
tributed codeine. Appellant admitted to the military judge
that he “gave” the codeine to a fellow servicemember, and
the following exchange occurred:
MJ: Did you just give it to him or did you sell it to
him?
DC: Your Honor, I don’t believe that he needs to
answer that question in order to plead guilty to this
offense.
MJ: Was there a sale or was it that you just gave it
to him?
ACC: [Conferring with counsel.] I sold the Codeine
to [SrA ID].
After the providence inquiry and acknowledging he un-
derstood his rights, Appellant stated he continued to want to
plead guilty. The military judge found that Appellant’s
guilty plea was made voluntarily and knowingly, advised
Appellant that he could request to withdraw his plea any
time prior to announcement of sentence, and found Appel-
lant guilty of all six specifications in accordance with his
pleas of guilty.
II. Applicable Legal Principles
We review a military judge’s decision to accept a guilty
plea for an abuse of discretion, United States v. Finch, 73
M.J. 144, 148 (C.A.A.F. 2014), and “[t]he appellant bears the
burden of establishing that the military judge abused that
discretion.” United States v. Phillips, 74 M.J. 20, 21
(C.A.A.F. 2015).
As we noted in United States v. Weeks, it is an abuse of
discretion if a military judge accepts a guilty plea without an
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Opinion of the Court
adequate factual basis to support it. 71 M.J. 44, 46 (C.A.A.F.
2012). In fact, R.C.M. 910(e) explicitly states: “The military
judge shall not accept a plea of guilty without making such
inquiry of the accused as shall satisfy the military judge that
there is a factual basis for the plea.” R.C.M. 910(e). Indeed,
our limited case law on this issue typically has arisen in the
context of determining whether a military judge complied
with this mandate to solicit sufficient detail about the un-
derlying facts of an offense. For example, in the seminal case
of United States v. Care we “imposed an affirmative duty on
military judges, during providence inquiries, to conduct a
detailed inquiry into the offenses charged, the accused’s un-
derstanding of the elements of each offense, the accused’s
conduct, and the accused’s willingness to plead guilty.” Unit-
ed States v. Perron, 58 M.J. 78, 82 (C.A.A.F. 2003) (emphasis
added) (citing Care, 18 C.M.A. 535, 541–42, 40 C.M.R. 247,
253–54 (1969)). In United States v. Negron, 60 M.J. 136, 143
(C.A.A.F. 2004), we “advised against and cautioned judges
regarding the use of conclusions and leading questions that
merely extract from an accused ‘yes’ or ‘no’ responses during
the providency inquiry.” And in United States v. Jordan, 57
M.J. 236, 238 (C.A.A.F. 2002), we emphasized that a mili-
tary judge must elicit actual facts from an accused and not
merely legal conclusions.
In the course of creating this precedent, however, we also
established parameters beyond which a military judge’s
questions must not fall in order to protect the rights of an
accused who is pleading guilty. For example, in Holt, we
held that although sworn admissions made during a provi-
dence inquiry can be admissible for sentencing purposes as
aggravating evidence, the use of such admissions is restrict-
ed if “the military judge has ranged far afield during the
providence inquiry,” such as when a military judge explores
“uncharged conduct [that] is not closely connected to the of-
fense to which the accused has pleaded guilty.” 27 M.J. at
60. In United States v. Irwin, we reaffirmed Holt, but in that
case we held that the appellant’s responses during the prov-
idence inquiry “did not ‘range[] far afield’ but, instead, were
relevant as they directly described circumstances surround-
ing the offenses without venturing into unrelated matters.”
42 M.J. 479, 482 (C.A.A.F. 1995); see id. at 481–82.
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III. Discussion
Appellant essentially argues that in the course of con-
ducting the providence inquiry in this case, the military
judge abused his discretion by eliciting too much infor-
mation about the underlying offenses.2 He further argues
that he was prejudiced by this action because “the military
judge considered [the additional information] in deliberating
upon an appropriate sentence in Appellant’s case.” Our
analysis of this argument need not detain us long.
It is evident from the record that the military judge
asked the questions now at issue in order to comply with the
requirements of the Rules for Courts-Martial and this
Court’s precedent. Specifically, the military judge was seek-
ing additional information from Appellant in order to “satis-
fy [himself] that there [was] a factual basis for the plea,”
R.C.M. 910(e), and to fulfill his “affirmative duty ... to con-
duct a detailed inquiry into ... the accused's conduct.” Per-
ron, 58 M.J. at 82 (emphasis added) (citing Care, 18 C.M.A.
541–42, 40 C.M.R. at 253–54).
But more importantly for the purposes of the instant ap-
peal, it is equally evident from the record that the military
judge's questions did not run afoul of applicable case law re-
garding the permissible scope of such inquiries. Specifically,
the questions were “closely connected” to the offenses to
which Appellant was pleading guilty, and they did not
“range[] far afield.” Holt, 27 M.J. at 60.3 Consequently, the
information elicited from the accused by those questions was
admissible during the sentencing phase.4
2 Appellant vigorously contested the scope of his waiver at tri-
al, and thus we conclude that Appellant has not waived his right
to litigate the issue presented today.
3 We note, of course, that an accused retains the right to with-
draw from a guilty plea in a timely manner if he or she believes a
military judge’s questions are objectionable. In the alternative, an
accused can resolutely and respectfully decline to answer specific
questions posed by a military judge, although this action may
cause the military judge to decide not to accept the guilty plea. In
the instant case, Appellant did not avail himself of either option.
4 Contrary to Appellant’s argument, even if this Court were to
determine that the military judge “ranged far afield” or his ques-
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Opinion of the Court
In reaching this decision, we conclude that the standards
set forth in Holt nearly three decades ago continue to cor-
rectly, adequately, and succinctly capture the proper bound-
aries for questions by a military judge during a providence
inquiry. Moreover, we conclude that these boundaries, which
we recognize are quite broad, are consistent with the sub-
stantial deference we show military judges when they decide
which facts to elicit during a providence inquiry in order to
establish a factual basis for a guilty plea. See United States
v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). Therefore,
we deem Appellant's request that we further refine these
boundaries as unwarranted.
IV. Decision
We hold that the military judge did not abuse his discre-
tion in this case by eliciting additional details of the charged
offenses during Appellant’s providence inquiry. Therefore,
the decision of the United States Air Force Court of Criminal
Appeals is affirmed.
tions were not closely connected to the offenses, there is no basis
to conclude that the additional facts obtained from Appellant ei-
ther increased Appellant’s sentence exposure or caused the mili-
tary judge to increase the punishment he otherwise would have
imposed in this case. Regardless of the number of uses or mode of
distribution, the sentence exposure to the offenses (as charged in
this case) remained the same. In terms of the sentence that was
adjudged, we cannot conclude that there was any prejudice. Appel-
lant admitted from the outset of the providence inquiry that he
wrongfully used cocaine on divers occasions, wrongfully used
alprazolam on divers occasions, wrongfully possessed alprazolam
with the intent to distribute, wrongfully distributed cocaine on
divers occasions, wrongfully distributed alprazolam on divers oc-
casions, and wrongfully distributed codeine. Under those factual
circumstances, a sentence of four months of confinement, reduc-
tion to E-1, and a bad-conduct discharge was anything but harsh.
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