United States v. Pinero , 60 M.J. 31 ( 2004 )

UNITED STATES, Appellee
v.
Jaime J. PINERO, Cryptologic Technician Administrative Second
Class
U.S. Navy, Appellant
No. 03-0279
Crim. App. No. 200101373
United States Court of Appeals for the Armed Forces
Argued October 8, 2003
Decided June 21, 2004
BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain James D. Valentine, USMC (argued).
For Appellee: Lieutenant Frank L. Gatto, JAGC, USNR (argued);
Commander R. P. Taishoff, JAGC, USN (on brief); Colonel Rose M.
Favors, USMC, and Captain Glen R. Hines, USMC.
Military Judge: R. W. Redcliff
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Pinero, No. 03-0279/NA
Judge BAKER delivered the opinion of the Court.
In accordance with his pleas, Appellant was convicted by a
military judge at a special court-martial of unauthorized
absence terminated by apprehension and five specifications of
wrongful use of a controlled substance in violation of Articles
86 and 112a, Uniform Code of Military Justice [hereinafter
UCMJ], 10 U.S.C. §§ 886 and 912a (2000). The adjudged and
approved sentence provided for a bad-conduct discharge,
confinement for 72 days, and reduction to pay grade E-1. The
United States Navy-Marine Corps Court of Criminal Appeals
affirmed. United States v. Pinero, 58 M.J. 501 (N-M. Ct. Crim.
App. 2003)(en banc). We granted review of the following
question:
WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY
ACCEPTING APPELLANT’S GUILTY PLEA TO AN UNAUTHORIZED
ABSENCE IN EXCESS OF THIRTY DAYS WHEN APPELLANT WAS SUBJECT
TO MILITARY CONTROL AND CUSTODY DURING A PORTION OF THE
CHARGED PERIOD.
Appellant was charged with and pleaded guilty to a 53-day
period of unauthorized absence. However, Appellant testified,
and the military judge concluded, that he returned to military
control and authority at some point during this period of
unauthorized absence before initiating a second period of
unauthorized absence. As a result, the record of trial
demonstrates a substantial basis in law and fact to question
Appellant’s plea to a 53-day period of unauthorized absence.
2
United States v. Pinero, No. 03-0279/NA
Although the legal error committed by the military judge in this
case may not have prejudiced Appellant on sentencing in light of
his other convictions, our recent decision in United States v.
Jenkins, ___ M.J. ___ (C.A.A.F. 2004), requires that we remand
to allow the Court of Criminal Appeals to complete its review
pursuant to Article 66, UCMJ 10 U.S.C. § 866 (2000), consistent
with this opinion and with Jenkins.
BACKGROUND
Appellant entered a guilty plea to a period of unauthorized
absence from his unit, Naval Security Group Activity, Kunia,
Hawaii, that began on October 23, 2000, and was terminated by
apprehension on December 15, 2000. During the providence
inquiry, Appellant stated that at some time in mid-November and
prior to Thanksgiving, a petty officer second class (E-5) from
his command came to his off-base house and ordered him to
participate in a command-directed fitness-for-duty urinalysis
screening. According to Appellant, he dressed in his uniform
and proceeded with the command representative to the Makalapa
Medical Clinic at Pearl Harbor and then returned home. This
evolution took approximately five hours, and Appellant stated
that he did not thereby intend to terminate his absence.
Appellant did not report for duty the following day as directed
by the command representative. By Appellant’s admission, his
3
United States v. Pinero, No. 03-0279/NA
absence ended on December 15 when he was apprehended at his
house.
Based on this record, the judge stated:
It would appear that at least for a 5-hour period during
the [unauthorized absence] period, Petty Officer Pinero was
subject to military control and authority. He certainly
complied with an order issued by his commanding officer to
participate in a urinalysis and blood sample screening, and
that would apparently . . . terminate the unauthorized
absence at that point. And when he was ordered to report
for duty the next day, that would appear to commence a
second period of unauthorized absence, which was
subsequently terminated by his apprehension on 15 December.
However, lacking a factual basis to determine the precise day on
which the first absence ended and the second began, the judge
found “as a matter in extenuation that during the period of
unauthorized absence, at least for 5 hours, Petty Officer Pinero
did subject himself to military custody and control and would
not, in fact, have been an unauthorized absentee for that
period.”
The judge solicited counsels’ opinions on how to proceed
and whether the pretrial agreement remained undisturbed. Trial
counsel adopted the judge’s suggestion that even if the precise
date of the urinalysis was not determined, the agreement was
still binding because “[i]t’s certainly proper for the court to
find two short periods of [unauthorized absence] encompassed in
a single extensive period.” The military judge further
4
United States v. Pinero, No. 03-0279/NA
suggested that “even though there’s [sic] two periods, he’s
still, I think, technically UA during every day of that period.”
The court recessed to explore the significance of the five-
hour period. Counsel were unable to fix the date of the
urinalysis or otherwise confirm Appellant’s presence at the
clinic in November. Ultimately, trial defense counsel adopted
the military judge’s theory that the charged period was
appropriate and stated that “[w]e want to stick with the deal
and ask you to consider whatever extenuation the providence
inquiry may have elicited.”
In affirming, the Court of Criminal Appeals concluded that
the five-hour period was “a de minimis interruption of the
alleged [unauthorized absence].” 58 M.J. at 503. The court
further concluded that Appellant waived the defense of early
termination since he lacked the intent to terminate his
unauthorized absence, and that there was no material prejudice
to Appellant’s substantial rights because “Appellant was not
misled as to the charge, and no unfairness resulted as the
variance did not increase his punitive exposure.” Id. at 504.
The Government’s Answer before the lower court contained 59
lines of legal analysis. The CCA’s en banc opinion replicates
48 of those lines verbatim or with modest grammatical or
citation edits. Another six lines appear with more substantial
modification. This material appeared in 8 of the CCA’s 13
5
United States v. Pinero, No. 03-0279/NA
paragraphs of legal analysis. But the lower court’s conclusions
regarding waiver of available defenses and whether a de minimis
absence was consistent with this Court’s holding in United
States v. Francis, 15 M.J. 424, 429 (C.M.A. 1983), were not
based on the Government’s Answer.
DISCUSSION
The military justice system takes particular care to test
the validity of guilty pleas because the facts and the law are
not tested in the crucible of the adversarial process. Further,
there may be subtle pressures inherent to the military
environment that may influence the manner in which
servicemembers exercise (and waive) their rights. The
providence inquiry and a judge’s explanation of possible
defenses are established procedures to ensure servicemembers
knowingly and voluntarily admit to all elements of a formal
criminal charge. See, e.g., United States v. Care, 18 C.M.A.
535, 539, 40 C.M.R. 247, 251 (1969)(citing McCarthy v. United
States, 394 U.S. 459, 466 (1969)); United States v. Chancelor,
16 C.M.A. 297, 299, 36 C.M.R. 453, 455 (1966)(“Congress made
clear the nature of the safeguards which they intended to
surround the receiving of [guilty pleas].”). These procedures
have also been incorporated into the Rules for Courts-Martial
[hereinafter R.C.M.] and the guides for courts-martial. See
R.C.M. 910(e) and discussion; Manual for Courts-Martial, United
6
United States v. Pinero, No. 03-0279/NA
States (2002 ed.) [hereinafter MCM], Guide for General and
Special Courts-Martial A8-1; MCM, Guide for Summary Courts-
Martial A9-1.
We are cognizant that in guilty-plea cases the quantum of
proof is less than that required at a contested trial. Before
accepting a plea, due process requires a military trial judge to
question the accused “to make clear the basis for a
determination by the military judge or president whether the
acts or the omissions of the accused constitute the offense or
offenses to which he is pleading guilty.” Care, 18 C.M.A. at
541, 40 C.M.R. at 253. See R.C.M. 910(e). A plea of not guilty
must be entered where a “substantial indication of direct
conflict between the accused’s plea and his following
statements” arises. United States v. Logan, 22 C.M.A. 349, 351,
47 C.M.R. 1, 3 (1973). Within this framework, guilty pleas are
rejected on appellate review only when the record of trial shows
a substantial basis in law and fact for questioning the plea.
United States v. Jordan, 57 M.J. 236 (C.A.A.F. 2002); United
States v. Prater, 32 M.J. 433 (C.M.A. 1991).
“Where an accused’s responses during the providence inquiry
suggest a possible defense to the offense charged, the trial
judge is well advised to clearly and concisely explain the
elements of the defense in addition to securing a factual basis
to assure that the defense is not available.” United States v.
7
United States v. Pinero, No. 03-0279/NA
Jemmings, 1 M.J. 414, 418 (C.M.A. 1976). Also, “in a guilty
plea case, inconsistencies and apparent defenses must be
resolved by the military judge or the guilty pleas must be
rejected.” United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F.
1996)(citing Jemmings, 1 M.J. at 418; United States v. Dunbar,
20 C.M.A. 478, 43 C.M.R. 318 (1971)).
In the context of Article 86, the elements of the offense
often include an aggravating factor of duration that bears on
the maximum authorized punishment. Appellant was charged with a
53-day period of continuous unauthorized absence. However,
Appellant’s statements regarding the interruption of his absence
created a substantial basis to question the providence of his
guilty plea because termination in this case is a defense to an
absence exceeding 30 days. The military judge seemed to
recognize as much when he concluded that a second period of
unauthorized absence commenced following the command-directed
urinalysis screening. Termination was not merely a “possible”
defense here — the judge secured a factual basis establishing
that Appellant was, for a five-hour period, not guilty of
unauthorized absence. For these reasons, we hold that there was
a substantial basis in law and fact to question Appellant’s
guilty plea to a 53-day unauthorized absence.
Having found that Appellant was under military control and
custody and not absent on a date in November, it was incumbent
8
United States v. Pinero, No. 03-0279/NA
upon the military judge to resolve any conflicting facts so the
correct duration could be determined and counsel could decide
how to proceed regarding the remainder of the charged period.
Notwithstanding Appellant’s return to military control, the
judge and counsel attempted to preserve the pretrial agreement
by finding a continuous 53-day absence based on the fact that
Appellant was not present for duty for the entire day of the
urinalysis. However, the hours of departure and return were not
alleged, therefore, the unresolved termination date would have
counted as a day of duty. MCM, Part IV, para. 10.(c).(9).
Therefore, as a matter of law, on this record, the date of the
urinalysis could not have sufficed as both the termination date
of the first period of absence and the inception date for any
subsequent period. Thus, the military judge’s conclusion that
Appellant was “technically UA during every day of that period”
was erroneous.
As important, even if Appellant’s absence had been charged
from a specific hour, Appellant’s unauthorized absence could not
have been continuous. A military judge may find multiple
absences within a single charged period so long as the maximum
authorized punishment does not exceed that for the longer
period. Francis, 15 M.J. at 429. Under Francis there must be a
factual basis to support the inception date of a second absence
where that date is essential to calculating the legal
9
United States v. Pinero, No. 03-0279/NA
punishments for Article 86 violations. That is, without an
inception date it is impossible to know whether duration is an
aggravating factor.
A factual interruption in a continuous period of
unauthorized absence cannot be overlooked by a court where such
interruption changes the qualitative nature of the offense and
the punitive exposure. Moreover, whether there is incentive to
do so or not, a servicemember cannot plead guilty to an offense
he did not commit, in this case 53 days of continuous
unauthorized absence. United States v. Schwabauer, 37 M.J. 338(C.M.A. 1993); United States v. Lewis, 18 C.M.A. 287, 289, 39
C.M.R. 287, 289 (1969)(An accused may not “abandon evidence of a
defense in favor of possible advantages derived from a guilty
plea.”). Acceptance of Appellant’s plea in this case may prove
to be harmless, but it was still error to accept the plea and we
should not conflate that which is harmless with that which is de
minimis in our analysis.
The record of trial establishes sufficient facts to affirm
Appellant’s conviction for an unauthorized absence of some
lesser period. United States v. Harris, 21 C.M.A. 590, 593-94,
45 C.M.R. 364, 367-68 (1972). Notwithstanding counsels’
inability to establish the early termination date, such a date
may be established by facts elicited during Appellant’s plea
inquiry. United States v. Simmons, 3 M.J. 398 (C.M.A. 1977).
10
United States v. Pinero, No. 03-0279/NA
There is a factual basis on this record to support a nine-day
absence beginning October 23 and terminating on November 1, the
earliest date Appellant could have terminated his absence based
on the plea colloquy. The failure of the military judge to
conclusively establish the date on which Appellant was under
military control at the clinic leaves the inception date for any
additional unauthorized absence period unresolved. Thus, the
current state of the record does not support a conviction for an
absence extending beyond November 1. See, e.g., Harris, 21
C.M.A. at 593, 45 C.M.R. at 367 (“Proof of a date of inception
obviously is indispensable to a successful prosecution for
unauthorized absence if a conviction is to be had for an
unauthorized absence which exceeds one day, the proven date of
return.”). Therefore, the military judge’s acceptance of the
plea and his subsequent finding of guilty were error.
Regarding prejudice, in his brief to this Court Appellant
argues that “the maximum punishment for an unauthorized absence
in excess of thirty days is dramatically more significant than
even twice the maximum punishment for an absence of less than 30
days.” He also argues that a punitive discharge is not an
authorized punishment for an unauthorized absence not exceeding
30 days. Moreover, termination by apprehension is only relevant
in aggravation for unauthorized absence over 30 days. While we
agree with Appellant that these are indeed accurate statements
11
United States v. Pinero, No. 03-0279/NA
of the law, the argument ignores the fact that Appellant was
tried at a special court-martial. Even without the absence
offense, the aggregation of the other offenses to which
Appellant pleaded guilty exposed Appellant to the jurisdictional
maximum of a special court-martial.1
DECISION
In light of our conclusions above, the decision of the
United States Navy-Marine Corps Court of Criminal Appeals is set
aside. As review is not yet complete in accordance with our
decision in United States v. Jenkins, ___ M.J. ___ (C.A.A.F.
2004),2 the record of trial is returned to the Judge Advocate
General of the Navy for remand to the Court of Criminal Appeals
for review consistent with this opinion. Thereafter, Article
67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.
1
At the time of Appellant’s trial Rule for Courts-Martial
201(f)(2)(B) authorized a special court-martial to adjudge no
more than a bad-conduct discharge, confinement for six months,
and forfeitures of two-thirds pay per month for six months.
2
Although not assigned or specified as an issue, we note that
the lower court's opinion in this case contains substantial
replication from the Government's brief.
12