United States v. Private E1 TRAVIS W. BARNES ( 2014 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    COOK, CAMPANELLA, HAIGHT
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Private E1 TRAVIS W. BARNES
    United States Army, Appellant
    ARMY 20130529
    Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
    Paul R. Almanza, Military Judge
    Lieutenant Colonel Mark Seitsinger, Staff Judge Advocate
    For Appellant: Major Vincent T. Schuler, JA; Captain Brian J. Sullivan (on brief).
    For Appellee: Lieutenant Colonel James L. Varley, JA (on brief)
    21 March 2014
    ---------------------------------
    MEMORANDUM OPINION
    ---------------------------------
    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
    CAMPANELLA, Judge:
    A military judge sitting as a general court -martial convicted appellant,
    pursuant to his pleas, of disobeying a lawful order, three specifications possessing
    methamphetamine, five specifications of using methamphetamine, one specification
    of larceny, and one specification of carrying a concealed weapon, in violation of
    Articles 90, 112a, 121, and 134, Uniform Code of Military Justice, 
    10 U.S.C. §§ 890
    , 912a, 921, and 934 (2006) [hereinafter UCMJ]. The convening authority
    approved the adjudged sentence of a bad-conduct discharge and confinement for
    twenty-one months. 
    This case is before us for review pursuant to Article 66, UCMJ. Appellant
    submitted a merits pleading to this court and personally raised matters pursuant to
    Unites States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982). We find the issues raised by
    appellant without merit. We find one additional issue, however, warrants di scussion
    and relief.
    
    Appellant was credited with 95 days against his sentence to confinement.
    BARNES — ARMY 20130529
    BACKGROUND
    On 7 May 2012, appellant was involved in a minor traffic stop while riding in
    a vehicle in Cleveland County, Oklahoma. Pursuant to a lawful search of the
    vehicle, police found a handgun and 26 grams of methamphetamine under the
    passenger front seat where the accused was sitting. Appellant admitted to not
    possessing a permit to carry a concealed weapon and to placing the weapon under
    the seat to conceal it.
    As a result, appellant was charged, inter alia, with unlawfully carrying a
    concealed weapon, a violation of Article 134. The Specification of Additional
    Charge I alleged:
    In that [appellant], U.S. Army, did, at or near Cleveland
    Country, Oklahoma, on or about 7 May 2012, unlawfully
    carry on or about his person a concealed weapon, to wit:
    a 9MM handgun without proper licensing, and that said
    conduct was to the prejudice of good order and discipline
    in the armed forces, and was of a nature to bring discredit
    upon the armed forces.
    Appellant pleaded guilty to this offense consistent with the pretrial agreement
    and the military judge found him guilty.
    During the providence inquiry, the military judge listed the Article 134
    elements of the Specification of Additional Charge I , including the terminal element
    of “to the prejudice of good order and discipline in the armed forces” and was “of a
    nature to bring discredit upon the armed forces.” The military judge then asked the
    appellant to explain how his behavior met this element. The exchange was
    conducted as follows:
    MJ: … do you believe and admit that your conduct was
    prejudicial to good order and discipline in the armed service
    or was of a nature to bring discredit upon the armed forces?
    ACC: Yes, your honor.
    MJ: …one or both?
    ACC: It would bring discredit to the military.
    MJ: Why…?
    ACC: Because I had no reason to be carrying the weapon.
    2
    BARNES — ARMY 20130529
    MJ: And how would members of the public react if they
    knew that soldiers carried concealed weapons?
    ACC: Unfavorably.
    MJ: And why is that?
    ACC: Because you don’t need a weapon in the United - -you
    don’t to carry a weapon unless you’re a police officer.
    MJ: Now, do you believe carrying a concealed weapon
    is also prejudicial to good order and discipline?
    ACC: Yes.
    MJ: Why is that?
    ACC: Because it doesn’t show discipline that we have as Soldiers.
    MJ: Explain a little bit more why.
    ACC: As a Soldier you’re taught you don’t need to carry a gun
    in the United States. You don’t need to protect yourself with a
    firearm here.
    MJ: Now, what might be a harmful consequence of somebody
    carrying a concealed weapon in the manner you did?
    ACC: They could get shot.
    MJ: Okay.
    ACC: Or death.
    MJ: How could that happen?
    ACC: Because if someone else thinks that you’re reaching for a
    gun they could take that as hostile and then shoot you if they were
    carrying a weapon.
    ...
    MJ: And do you admit that under the circumstances your conduct
    was prejudicial to good order and discipline in the armed forces or was
    of a nature to bring discredit upon the armed forces ?
    3
    BARNES — ARMY 20130529
    ACC: Yes, your honor.
    LAW AND DISCUSSION
    Terminal Element
    “During a guilty plea inquiry the military judge is charged with determining
    whether there is an adequate basis in law and fact to support the plea before
    accepting it.” United States v. Inabinette, 
    66 M.J. 320
    , 321–22 (C.A.A.F. 2008)
    (citing United States v. Prater, 
    32 M.J. 433
    , 436 (C.M.A. 1991)). We review a
    military judge's decision to accept a plea for an abuse of discretion by determining
    whether the record as a whole shows a substantial basis in law or fact for
    questioning the guilty plea. 
    Id. at 322
    .
    In order to find appellant's conduct was prejudicial to good order and
    discipline, however, the plea inquiry must establish facts demonstrating that
    appellant's conduct caused “direct and palpa ble” prejudice to good order and
    discipline. See Manual for Courts-Martial, United States (2008 ed.), pt. IV, ¶
    60.c.(2)(a). See generally United States v. Erickson, 
    61 M.J. 230
    , 231-32 (C.A.A.F.
    2005). To be service discrediting, appellant's conduct must “tend to bring the
    service into disrepute if it were known.” United States v. Phillips, 
    70 M.J. 161
    , 166
    (C.A.A.F. 2011).
    In this case, the military judge did not elicit an adequate factual basis duri ng
    the colloquy with appellant to support his plea that his conduct was either
    prejudicial to good order and discipline or service discrediting. N or does the
    stipulation of fact satisfy the providency requirement for either clause of the
    terminal element. See United States v. Care, 
    18 U.S.C.M.A. 535
    , 
    40 C.M.R. 247
    (C.M.A.1969). Consequently, on the record before us, we find a substantial basis in
    fact to question appellant's plea to this offense.
    CONCLUSION
    On our consideration of the entire record and the assigned error, the findings
    of the Additional Charge I and its Specification are set aside and dismissed.
    We AFFIRM the remaining findings of guilty.
    We are able to reassess the sentence on the basis of the error noted, and do so
    after conducting a thorough analysis of the totality of circumstances presented by
    appellant’s case and in accordance with the principles articulated in United States v.
    Winckelmann, 
    73 M.J. 11
    , 15-16 (C.A.A.F. 2013) and United States v. Sales, 
    22 M.J. 305
     (C.M.A. 1986).
    4
    BARNES — ARMY 20130529
    In evaluating the Winckelmann factors, we first find no dramatic change in the
    penalty landscape or appellant’s punitive exposure which might cause us pause in
    reassessing appellant’s sentence. Second, appellant pleaded guilty in a judge -alone
    court-martial. Third, we find the nature of the remaining offense still captures the
    gravamen of the original offenses, and the circumstances surrounding appellant’s
    conduct remain admissible and relevant to the remaining offense s. Finally, based on
    our experience, we are familiar with the remaining offense s so that we may reliably
    determine what sentence would have been imposed at trial.
    Reassessing the sentence based on the noted error, the remaining findings of
    guilty, and the entire record, including the matters presented by appellant pursuant
    to Grostefon, we AFFIRM only so much of the sentence as extends to confinement
    for twenty months and a bad conduct discharge. We find this reassessed sentence is
    not only purged of any error but is also appropriate. All rights, privileges, and
    property, of which appellant has been deprived by virtue of that portion of the
    findings set aside by our decision, are ordered restored. See UCMJ arts. 58b(c) and
    75(a).
    Senior Judge COOK and Judge HAIGHT concur.
    FOR THE COURT:
    ANTHONY
    ANTHONY   O. POTTINGER
    O. POTTINGER
    Chief
    Chief Clerk of Court
    Deputy
    5
    

Document Info

Docket Number: ARMY 20130529

Filed Date: 3/21/2014

Precedential Status: Non-Precedential

Modified Date: 4/17/2021