STEPHENS – ARMY 20070461

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

GALLUP, HAM, and JOHNSON

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Specialist ROBERT L. STEPHENS**

**United States Army, Appellant**

ARMY 20070461

Headquarters, U.S. Army Signal Center and Fort Gordon

Donna M. Wright, Military Judge

Colonel D. Shawn Shumake, Staff Judge Advocate

For Appellant:  Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Major Sean F. Mangan, JA; Captain Candace N. White Halverson, JA (on brief).

For Appellee:  Major Elizabeth G. Marotta, JA; Lieutenant Colonel Francis C. Kiley, JA; Captain Michael D. Wallace, JA (on brief).

27 August 2008

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SUMMARY DISPOSITION

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Per Curiam:

Upon review of the case before us under Article 66, Uniform Code of Military Justice [hereinafter UCMJ], we find appellant improvident to Specification 2 of Charge IV.  The remaining findings of guilty are affirmed.

A providence inquiry into a guilty plea must:  (1) establish that the accused believes and admits he or she is guilty of the charged offenses; and (2) provide a set of factual circumstances—admitted by the accused—which objectively support the guilty plea.  Rule for Courts-Martial 910(e); *United States v. Simmons*, 63 M.J. 89, 92 (C.A.A.F. 2006); *United States v. Barton*, 60 M.J. 62, 64 (C.A.A.F. 2004); *United States v. Morris*, 58 M.J. 739, 742-43 (Army Ct. Crim. App. 2003).  Furthermore, “in a guilty-plea case, inconsistencies and apparent defenses must be resolved by the military judge or the guilty plea must be rejected.”  *United States v. Outhier*, 45 M.J. 326, 331 (1996).   Before this court rejects a guilty plea, however, the record of trial must show a “substantial basis” for questioning the plea.  *United States v. Adams*, 63 M.J. 223, 226 (C.A.A.F. 2006); *United States v. Prater*, 32 M.J. 433, 436 (C.M.A. 1991). 

In the instant case, appellant raised an inconsistency regarding the exact time and frequency of his false official statements.  Specification 2 of Charge IV alleges appellant committed a violation of Article 107, UCMJ by fraudulently signing a company sign-in roster “for *all* times at 1135 hours . . . .”  The stipulation of fact, on the other hand, states appellant “signed in for *several* times at 1135 hours . . . .”  During the providence inquiry appellant highlighted the inconsistencies and stated that “instead of signing in every hour on the hour, [he] came in maybe like 0800 or 0900 and [he] signed in for those two hours, and then at 0900 [he] signed in for a few hours in advance until like 1200 or 1300 hours.”  Appellant also admitted he returned at 1400 and again violated Article 107, UCMJ by signing the roster “for a couple more hours.”  

The military judge never resolved the inconsistency between the offense as charged (version one), as described in the stipulation of fact (version two) and as described by appellant during his providence inquiry (version three).  Because there are three unresolved versions of exactly when and how appellant committed the offense, we will set aside the finding of guilty. 

Accordingly, Specification 2 of Charge IV is set aside and dismissed.  The remaining findings of guilty are affirmed.  Reassessing the sentence on the basis of the modified findings, the entire record, and in accordance with the principles of *United States v. Sales,*22 M.J. 305 (C.M.A. 1986), and *United States v. Moffeit*, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring opinion, we affirm the sentence.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court 

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