United States v. Gaston , 62 M.J. 404 ( 2006 )


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  •                        UNITED STATES, Appellee
    v.
    Jamahl D. Gaston, Senior Airman
    U.S. Air Force, Appellant
    No. 05-0462
    Crim. App. No. S30372
    United States Court of Appeals for the Armed Forces
    Argued December 7, 2005
    Decided March 3, 2006
    ERDMANN, J., delivered the opinion of the court, in which
    GIERKE, C.J., and EFFRON, J., joined. BAKER, J., filed a
    separate opinion concurring in the result, in which CRAWFORD,
    J., joined.
    Counsel
    For Appellant: Captain Kimberly A. Quedensley (argued);
    Lieutenant Colonel Mark R. Strickland (on brief); Colonel Carlos
    L. McDade, Major Sandra K. Whittington, and Major James M.
    Winner.
    For Appellee: Captain Jefferson E. McBride (argued); Lieutenant
    Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer
    (on brief); Major John C. Johnson.
    Military Judge:   Daryl E. Trawick
    This opinion is subject to revision before final publication.
    United States v. Gaston, No. 05-0462/AF
    Judge ERDMANN delivered the opinion of the court.
    Senior Airman Jamahl D. Gaston was charged with absence
    without leave terminated by apprehension and missing a movement
    by design in violation of Articles 86 and 87, Uniform Code of
    Military Justice (UCMJ), 
    10 U.S.C. §§ 886
    , 887 (2000).    He pled
    guilty and was convicted on both charges before a military judge
    at a special court-martial.   He was sentenced to a bad-conduct
    discharge, confinement for six months, a reduction in grade to
    E-1, and partial forfeitures.   Because the military judge failed
    to inform Gaston that a reduction to E-1 was a possible
    punishment in the case, the convening authority did not approve
    the reduction but approved the remainder of the sentence as
    adjudged.   The Air Force Court of Criminal Appeals affirmed the
    findings and sentence with a single modification which addressed
    the forfeitures.   United States v. Gaston, No. ACM S30372 (A.F.
    Ct. Crim. App. Mar. 7, 2005).
    This court will set aside a plea of guilty where there is
    “a substantial basis in law and fact for questioning the guilty
    plea.”   United States v. Milton, 
    46 M.J. 317
    , 318 (C.A.A.F.
    1997) (quoting United States v. Prater, 
    32 M.J. 433
    , 436 (C.M.A.
    1991)) (quotation marks omitted).    In order to establish that
    Gaston’s absence from his unit was terminated by apprehension,
    the facts on the record must establish that his return to
    military control was involuntary.    See United States v. Fields,
    2
    United States v. Gaston, No. 05-0462/AF
    
    13 C.M.A. 193
    , 196, 
    32 C.M.R. 193
    , 196 (1962).     We granted
    review to determine whether Gaston’s providence inquiry
    established that he was guilty of absence without leave
    terminated by apprehension.    We also granted review to determine
    whether the sentence affirmed by the Court of Criminal Appeals
    was greater than the sentence approved by the convening
    authority in violation of Article 66(c), UCMJ, 
    10 U.S.C. § 866
    (c) (2000).1
    BACKGROUND
    The unauthorized absence charge alleged that Gaston “[d]id,
    at or near OAFB [Offutt Air Force Base], Nebraska, [on or about]
    13 Jan 03, without authority, absent himself from his place of
    duty at which he was required to be, to wit:     Bldg 457, Rm 700,
    located at OAFB, NE and did remain absent until he was
    apprehended [on or about] 17 Jan 03.”      At a pretrial motion
    hearing, Gaston testified regarding the termination of his
    absence:    “I was notified by the dorm director that everyone was
    looking for me, and I immediately told him that I needed to get
    1
    We granted review of the following specified issues:
    I. WHETHER APPELLANT’S GUILTY PLEA TO BEING
    ABSENT FROM HIS PLACE OF DUTY AT WHICH HE
    WAS REQUIRED TO BE AND TO HIS ABSENCE BEING
    TERMINATED BY APPREHENSION WAS PROVIDENT.
    II. WHETHER THE AIR FORCE COURT OF CRIMINAL
    APPEALS IMPROPERLY INCREASED APPELLANT’S
    SENTENCE BY APPROVING A TWO-THIRDS
    3
    United States v. Gaston, No. 05-0462/AF
    dressed and meet him in the front.   And when I did that, he said
    he would call the Shirt to come down and pick me up, and they
    did so.”
    Gaston’s statements at the providence inquiry regarding the
    unauthorized absence offense consist of the following:
    I am guilty of this offense because on 13
    January 2003, I remained absent from my
    unit, which was the 38th Reconnaissance
    Squadron. I was in my dorm room and just
    did not leave. I was not supposed to be on
    the base on 13 January 2003; however, since
    I did not report to the location where I
    should have been, I knew that I had a duty
    to report to work that day and let my
    squadron know I was there –- where I was. I
    did not have proper authority from anyone
    who could give me leave or permission to be
    absent from my squadron, and I remained
    absent in my room until 17 January 2003,
    when the dorm manager came to my room and
    told me that my squadron was looking for me.
    I am confident that my absence was
    terminated by apprehension because neither
    me, nor anyone working on my behalf,
    voluntarily told anyone where I was. I was
    found when the squadron came looking for me.
    The day before the beginning date for the unauthorized absence
    offense, Gaston’s unit deployed to Saudi Arabia and his failure
    to move with his unit formed the basis for the missed movement
    charge.
    The sentence imposed by the military judge included, in
    part, “forfeiture of two-thirds pay per month for six months;
    FORFEITURE OF PAY AT THE E-4 RATE RATHER
    THAN AT THE E-1 RATE.
    4
    United States v. Gaston, No. 05-0462/AF
    and a reduction to E-1.”   When the convening authority acted on
    the sentence he was advised that Gaston had not been notified
    that his sentence could include a reduction.    To remedy this
    error the convening authority approved all of the adjudged
    sentence except for the reduction to E-1.   On review, the Court
    of Criminal Appeals noted that Rule for Courts-Martial (R.C.M.)
    1003(b)(2) requires that a sentence which includes partial
    forfeitures must state the dollar amount to be forfeited each
    month, and that the military judge had erroneously referenced
    “forfeitures of two-thirds pay per month for six months.”    To
    correct this error the lower court affirmed the sentence
    approved by the convening authority, but instead of “two-thirds
    pay” the court stated the forfeiture would be $1,053.00 per
    month, an amount equal to two-thirds pay at the E-4 rate.
    DISCUSSION
    1.   Termination of Absence by Apprehension
    This court will set aside a plea of guilty if it finds that
    there is “a substantial basis in law and fact for questioning
    the guilty plea.”   United States v. Milton, 
    46 M.J. 317
    , 318
    (C.A.A.F. 1997) (quoting United States v. Prater, 
    32 M.J. 433
    ,
    436 (C.M.A. 1991)) (quotation marks omitted).   Gaston contends
    that it was not established at his providence inquiry that his
    return to military control was involuntary and therefore there
    was no basis for finding that his absence was terminated by
    5
    United States v. Gaston, No. 05-0462/AF
    apprehension.    The Government responds that Gaston’s return to
    military control was involuntary because it was not initiated by
    him and that on this basis the court can find his plea to
    absence terminated by apprehension was provident.   This court
    has stated:
    “[a]pprehension” contemplates termination of the
    accused’s absence in an involuntary manner; and
    “termination otherwise” is an absence ended “freely
    and voluntarily.” In other words, the Manual
    provision does not differentiate between these two
    classes of termination by means of particular
    situations, but rather by way of a broad definition
    for each category.
    Fields, 32 C.M.R. at 196 (discussing United States v.
    Nickaboine, 
    3 C.M.A. 152
    , 
    11 C.M.R. 152
     (1953)).    Based on this
    differentiation, the military judge instructed Gaston,
    “Apprehension means that your return to military control was
    involuntary.    It must be shown that neither you nor persons
    acting at your request initiated your return.”
    The lower court noted that the providence inquiry in this
    case was “exceptionally brief and certainly not a model for how
    such an inquiry should be conducted.”   Gaston, No. ACM S30372,
    slip op. at 1.   Because of this, we will look to the entire
    record to determine whether facts to support Gaston’s guilty
    plea have been established.   See United States v. Jordan, 
    57 M.J. 236
    , 239 (C.A.A.F. 2002) (“When this Court has addressed a
    bare bones providence inquiry, we have not ended our analysis at
    the edge of the providence inquiry but, rather, looked to the
    6
    United States v. Gaston, No. 05-0462/AF
    entire record to determine whether the dictates of Article 45,
    RCM 910, and [United States v. Care, 
    18 C.M.A. 535
    , 
    40 C.M.R. 247
     (1969)] and its progeny have been met.”).
    Gaston’s providence inquiry established that “the dorm
    manager came to my room and told me that my squadron was looking
    for me.”    He concluded that he was involuntarily apprehended
    because “neither me, nor anyone working on my behalf,
    voluntarily told anyone where I was.    I was found when the
    squadron came looking for me.”    When testifying on a pretrial
    motion Gaston stated that when the dorm manager told him that
    “everyone was looking for me, . . . I immediately told him that
    I needed to get dressed and meet him in the front.    And when I
    did that, he said he would call the Shirt to come down and pick
    me up, and they did so.”
    While these statements establish that it was the dorm
    manager who initiated contact with Gaston, it does not
    automatically follow that the contact with the dorm manager
    constituted Gaston’s return to military control.    The Manual for
    Courts-Martial defines apprehension by military authority as
    requiring apprehension “of a known absentee.”    Manual for
    Courts-Martial, United States pt. IV, para. 10.c.(10)(b) (2005
    ed.).    There is no evidence that the dorm manager knew that
    Gaston was an absentee or that he knew anything other than that
    Gaston was being sought by his squadron.    Gaston did not make
    7
    United States v. Gaston, No. 05-0462/AF
    the dorm manager aware of his status as an absentee.    See United
    States v. Jackson, 
    1 C.M.A. 190
    , 192-93, 
    2 C.M.R. 96
    , 98-99
    (1952) (finding that a servicemember who was tried and convicted
    at a summary court-martial by one command, while he was absent
    without leave from another command, has not had his absence
    terminated because the command that exerted control over him was
    not aware of his status as an absentee).
    Article 7, UCMJ, 
    10 U.S.C. § 807
     (2000), defines
    apprehension as “the taking of a person into custody.”    It
    states that “[a]ny person authorized under regulations governing
    the armed forces to apprehend persons subject to this chapter or
    to trial thereunder may do so upon a reasonable belief that an
    offense has been committed and that the person apprehended
    committed it.”   Article 7(b), UCMJ.   Nothing in the record
    establishes that the dorm manager believed Gaston had committed
    an offense or that the dorm manager had the authority to take
    him into custody.   Without this authority, the mere fact that
    the dorm manager made contact with Gaston while he was on base
    and in his dormitory room is not sufficient to establish that
    Gaston was under military control.     See Jackson, 2 C.M.R. at 98
    (“[A]n absentee’s casual presence at a military installation,
    unknown to competent authority and for purposes primarily his
    own, does not end his unauthorized absence.”).
    8
    United States v. Gaston, No. 05-0462/AF
    The dorm manager also did not take steps to take Gaston
    into custody.   Gaston’s statements to the military judge do not
    establish that the dorm manager exerted military control over
    him or control of any type.   The dorm manager did nothing other
    than tell Gaston that his squadron was looking for him when he
    found him in his dorm room.   The dorm manager did not give
    Gaston any orders to turn himself in, to go anywhere, or to
    remain where he was, and Gaston did not act pursuant to any
    instruction or request by the dorm manager.   See United States
    v. Raymo, 
    1 M.J. 31
    , 32-33 (C.M.A. 1975) (finding exertion of
    military control over a servicemember who was absent without
    leave where an officer with authority to apprehend the
    servicemember directed him to go speak to the FBI, and the
    servicemember subsequently complied with that direction).     Only
    after Gaston said he would meet the dorm manager in front did
    the manager say that he would call Gaston’s first sergeant.
    Nothing in this encounter leads us to believe that Gaston was in
    military custody or control based upon his brief contact with
    the dorm manager.
    We conclude that when the dorm manager told Gaston his
    squadron was looking for him, Gaston voluntarily surrendered by
    going to the front of the dorm where he met Colonel Kramer who
    then read him his rights and placed him on restriction.   Because
    we conclude that Gaston’s absence was terminated by his
    9
    United States v. Gaston, No. 05-0462/AF
    voluntary surrender rather than by apprehension we affirm
    Gaston’s conviction only for the lesser offense of absence
    without authority terminated by surrender to military authority.
    We further conclude that this error was harmless as to
    sentencing.   First, this change has no impact on the maximum
    authorized sentence in this case which was limited by the
    jurisdiction of the special court-martial.   See Article 19,
    UCMJ, 
    10 U.S.C. § 819
     (2000).   Additionally, in arguing on
    sentencing trial counsel did not focus on the nature of Gaston’s
    return to military control, but rather on the effect of his
    actions on the morale of his unit and on other troops deployed
    to the Middle East.   Therefore, we affirm the sentence as
    adjudged, subject to our resolution of Issue II below.
    2.   Sentencing Error
    The sentence imposed by the military judge included, in
    part, “forfeiture of two-thirds pay per month for six months;
    and a reduction to E-1.”   The military judge made two errors in
    imposing this sentence.    First, he failed to inform Gaston that
    he could be sentenced to a reduction to E-1, and second, he
    failed to state the sentence of partial forfeitures as a whole
    dollar amount as required by R.C.M. 1003(b)(2).   That rule also
    provides that if a sentence includes a reduction then the
    forfeiture should be based on the grade to which the accused is
    reduced.   Had the military judge complied with R.C.M. 1003(b)(2)
    10
    United States v. Gaston, No. 05-0462/AF
    and stated the forfeiture amount as a whole dollar amount at the
    reduced grade of E-1, it would have been $767.00 per month.
    The convening authority properly remedied the military
    judge’s first error by disapproving that portion of the sentence
    that included a reduction to E-1.      However, he did not correct
    the error regarding the statement of the forfeitures.     The
    convening authority, in taking action on a sentence, may
    “approve, disapprove, commute, or suspend the sentence in whole
    or in part.”   He may not increase the sentence adjudged by the
    court-martial.   Article 60(c)(2), UCMJ, 
    10 U.S.C. § 860
    (c)(2)
    (2000).   The Staff Judge Advocate advised the convening
    authority of this limitation, and “[i]n the absence of evidence
    to the contrary, it is assumed that the convening authority
    followed the law set out in his Staff Judge Advocate’s review.”
    United States v. Johnson, 
    8 C.M.A. 173
    , 177, 
    23 C.M.R. 397
    , 401
    (1957) (Quinn, J., concurring).    We therefore conclude that when
    the convening authority approved the sentence of “forfeitures of
    two thirds pay per month” adjudged by the military judge he
    approved a forfeiture of $767.00 per month for six months, which
    was two-thirds of an E-1 monthly pay.
    The Court of Criminal Appeals took note of the military
    judge’s second error, but in fashioning a remedy the court
    stated the whole dollar amount of the forfeitures as $1053.00
    per month, or two-thirds of Gaston’s pay at the E-4 rate rather
    11
    United States v. Gaston, No. 05-0462/AF
    than the E-1 rate.   A Court of Criminal Appeals “may act only
    with respect to the findings and sentence as approved by the
    convening authority.”   Article 66(c), UCMJ.   The sentence
    approved by the convening authority included a bad-conduct
    discharge, confinement for six months and forfeiture of two-
    thirds of an E-1’s pay or $767.00 per month.   Therefore, the
    action of the Court of Criminal Appeals in imposing forfeitures
    greater than those approved by the convening authority
    improperly increased Gaston’s sentence in violation of Article
    66(c).
    DECISION
    The decision of the Air Force Court of Criminal Appeals is
    affirmed as to findings except that with regard to Charge I we
    affirm only a conviction for the lesser offense of absence
    without authority terminated by surrender to military authority.
    We affirm only so much of the sentence as includes a bad-conduct
    discharge, confinement for six months, and forfeitures of
    $767.00 per month for six months.
    12
    United States v. Gaston, No. 05-0462/AF
    BAKER, Judge, with whom CRAWFORD, Judge, joins (concurring
    in result):
    The question presented is whether Appellant pled
    providently to the charge of unauthorized absence terminated by
    apprehension.   This Court will not overturn a plea as
    improvident unless there is a substantial basis in law or fact
    for doing so.   United States v. Harris, 
    61 M.J. 391
    , 398
    (C.A.A.F. 2005).   An appellant bears the burden of demonstrating
    that such a substantial basis in law or fact exists.     United
    States v. Hays, 
    62 M.J. 158
    , 167 (C.A.A.F. 2005).   I agree with
    the majority that Appellant has done so; however, I write
    separately to articulate why I believe this is a close case and
    to distinguish my understanding of the facts from that presented
    by the majority.
    This Court’s case law regarding apprehension emphasizes
    three factors in determining whether an unauthorized absence is
    terminated by apprehension or not:   (1) was the return to
    military control voluntary?; (2) did the accused initiate his
    return to military control?; and (3) was the military control
    exercised over an accused a knowing control.   United States v.
    Fields, 
    13 C.M.A. 193
    , 196-97, 
    32 C.M.R. 193
    , 196 (1962); United
    States v. Nickaboine, 
    3 C.M.A. 152
    , 156, 
    11 C.M.R. 152
    , 156
    (1953).   Depending on context, this Court has placed more or
    less weight on each factor.
    U.S. v. Gaston, No. 05-0462/AF
    In this case, Appellant argues that the military judge
    erred by accepting his plea to unauthorized absence terminated
    by apprehension because the record establishes that Appellant
    returned to military control voluntarily.   At the very least,
    Appellant argues, the record contains inconsistent facts that
    warranted further inquiry before the military judge accepted
    Appellant’s statement.   I agree with this latter argument,
    because there are just not enough facts in the record to fairly
    infer whether Appellant was apprehended or voluntarily
    surrendered.
    In evaluating a plea, we look to the entire record,
    including any fair inferences that can be drawn from the record.
    United States v. Redlinski, 
    58 M.J. 117
    , 119 (C.A.A.F. 2003).
    The record is factually light.   Three of Appellant’s statements
    are relevant here:
    A. I was notified by the dorm director that everyone was
    looking for me, and I immediately told him that I needed to
    get dressed and meet him in the front. And when I did
    that, he said that he would call the Shirt to come down and
    pick me up, and they did so.
    Q.   What happened after that?
    A. I went down and went in front of Colonel Kramer, and he
    read me my rights, and I was put on base restriction and
    dorm restriction.
    . . . .
    A. . . . I remained absent in my dorm room until 17
    January 2003, when the dorm manager came to my room and
    told me that my squadron was looking for me. I am
    2
    U.S. v. Gaston, No. 05-0462/AF
    confident that my absence was terminated by apprehension
    because neither me, nor anyone working on my behalf,
    voluntarily told anyone where I was. I was found when the
    squadron came looking for me.
    On the one hand, based on these statements, the military
    judge might well have concluded that Appellant’s apprehension
    was involuntary because it was initiated by the dorm director
    who had reason to know that Appellant was absent from his place
    of duty.   Otherwise, the dorm director would not have indicated
    that he or she would call the First Sergeant to pick Appellant
    up.   One might well infer that a dorm director, whatever his
    status or rank, would not expect the First Sergeant to come and
    give the Appellant a ride to work, unless the Appellant were in
    trouble.   This reading of the record is supported by our case
    law emphasizing “initiation” as determinative of apprehension.
    See Fields, 13 C.M.A. at 196-97, 32 C.M.R. at 196.   It is also
    supported by Appellant’s statement to the military judge that “I
    am confident that my absence was terminated by apprehension” and
    Appellant’s acknowledgment that the First Sergeant picked him up
    at the dorm.
    On the other hand, one might also reasonably infer from
    these same statements that Appellant voluntarily surrendered to
    military control.   Having been tipped off by the dorm director
    that his command was looking for him, Appellant decided to get
    dressed and asked the dorm director to meet him in the front.
    3
    U.S. v. Gaston, No. 05-0462/AF
    One might infer that Appellant exercised a voluntary choice, for
    Appellant might also have gotten dressed and headed out the
    backdoor.    Or, he might have bought more time with the dorm
    director by expressing surprise, thanking him for the
    information, and then advising the dorm director that he would
    find his own way to the unit before making his way to the front
    gate.
    Fair inferences can be drawn in either direction.    One or
    two more questions might have resolved this apparent
    inconsistency between the initiation of Appellant’s surrender
    and his voluntary arrival at the front door of his dorm.      For
    example, did the Appellant think he had a choice when the dorm
    director arrived?    Did the dorm director have the authority to
    apprehend Appellant if need be?    How much time elapsed between
    the dorm director’s arrival and the First Sergeant’s?       In light
    of these uncertainties, there is a substantial basis in law as
    well as in fact to question the plea to apprehension.
    Nonetheless, for the reasons stated by the majority, the error
    is harmless and I concur in the result.
    4
    

Document Info

Docket Number: 05-0462-AF

Citation Numbers: 62 M.J. 404

Judges: Baker, Erdmann

Filed Date: 3/3/2006

Precedential Status: Precedential

Modified Date: 8/5/2023