## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, ALDYKIEWICZ, and MARTIN Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 JAMES A. CRAWFORD United States Army, Appellant

ARMY 20110765

III Corps and Fort Hood Gregory A. Gross, Military Judge Colonel Stuart W. Risch, Staff Judge Advocate

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Captain John L. Schriver, JA; Ca ptain Brian J. Sullivan, JA (on brief).

For Appellee: Major Catherine L. Brantley, JA; Captain Rachael T. Brant, JA (on brief).

28 June 2013

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

MARTIN, Judge:

A military judge sitting as a special court-martial convicted appellant, pursuant to hi s pleas, of absence without leave terminated by ap prehension, and wrongful possession of spi ce, in violation of Articles 86 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 892 (2006) [herei nafter UCMJ]. The military judge sentenced appellant to a bad-conduc t discharge, confinem ent for six months, forfeiture of $978.00 per mont h for six months, a nd reduction to th e grade of E-1. The convening authority approved the adju dged sentence, and credited appellant with two days of confinement against the sentence to confinement.

This case is before us for review under Article 66, UCMJ. Appellate counsel raised two issues to this court and appellant personally raised matters pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982). One of the raised errors

warrants discussion and relief.CRAWFORD—ARMY 20110765

2 BACKGROUND

Prior to trial, appellant entered into a pretrial agreement wherein he agreed to plead guilty to all charges and specifications. At trial, consistent with the pretrial agreement, appellant pleade d guilty to being absent wi thout leave from 24 May 2005

until his absence was term inated by apprehension on 4 January 2011.

The military judg e then questioned appellant on his guilt to the charged

offenses. At the outset of the questioning, the military judge listed the elements for absence without leave terminated by apprehension and defined apprehension by providing the follow ing instruction:

“Apprehension” means that the accused’s return to military control was involuntary. It mu st be shown th at neither the accused nor persons acting at his request initiated the return.

See Dep’t of Army, Pam. 27-9, Legal Serv ices: Military Judges’ Benchbook [hereinafter Benchbook], para . 3-10-2(d) (1 Jan. 2010). Appellant acknowledged he

understood and admitted the elements as set forth by the military judge. The military judge then engaged in the following co lloquy with appella nt regarding the absence without leave charge , alleged to have been te rminated by apprehension:

ACC: On 4 January 2011, I was arrested in my hometown of Haleyville, Alabama, by my local police department. They came to my work place with a warrant, arrested me, and took me back to Winston County Jail. I was held there until I was transferred back to military control. And also with the additional ----

MJ: Hold on one sec ond, Private Crawford.

ACC: Yes, sir.

MJ: Let me just ask you a couple of questions about the first one. So at any time in be tween the 24th of Ma y of 2005 and 4th of January 2011, did you attempt to tu rn yourself back into military

control?

ACC: No, sir.

MJ: Alright, at any time between those date s, did you think that you had authority to be gone?

ACC: No, sir.CRAWFORD—ARMY 20110765

3 MJ: You told me that you didn ’t; but by any chance, did you think that you did?

ACC: No, sir.

MJ: Okay. Tell me about th e possession of the spice.

The foregoing colloquy constituted the entir ety of the plea inqu iry conducted by the military judge on the absence without leave offense. Ba sed on his questions, appellant’s responses, and the stipulatio n of fact, the milita ry judge accepted appellant’s plea as provident.

LAW AND DISCUSSION

We review a military judge’s acceptanc e of an accused’s guilty plea for an

abuse of discretion. United States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008);

United States v. Eberle , 44 M.J. 374, 375 (C.A.A.F. 1996). “[I]n reviewing a military judge’s acceptance of a plea for an abuse of discretion [we] apply a

substantial basis test: Does the record as a whole show a substantial basis in law and fact for questioning the guilty plea.” Id. at 322 (quoting United States v. Prater

, 32 M.J. 433, 436 (C.M.A. 1991) ) (internal quotation marks om itted). There exists a

substantial basis in fact to question a plea of gu ilty where a military judge “fails to obtain from the accused an adequate f actual basis to support the plea.” Id. (citing

United States v. Jordan , 57 M.J. 236, 238 (C.A .A.F. 2002)). In orde r to establish an adequate factual predicate fo r a guilty plea, the military judge must elicit “‘factual circumstances as revealed by the accused himself [that] objectively support that plea[.]’” Jordan , 57 M.J. at 238 (quoting United States v. Davenport , 9 M.J. 364, 367 (C.M.A. 1980)) (altera tions in original).

In this case, there exists a substantial basis to question the providence of appellant’s plea to absence without leave terminated by apprehension

. We conclude that the facts, as provided by appellant, do not unequivoca lly establish

that his absence was termin ated by apprehension. To establish an absence was terminated by ap prehension, for purpos es of Article 86, UCMJ , “the facts on the record must establish [t he] return to military co ntrol was invo luntary.” United

States v. Gaston , 62 M.J. 404, 405 (C.A .A.F. 2006). “Appre hension contemplates

termination of the accused’ s absence in an involuntar y manner; and termination

otherwise is an absence ende d freely and voluntarily.” Id . (citing United States v.

Fields , 13 U.S.C.M.A. 193, 196, 32 C.M.R. 193, 196 (1962)).

During the colloquy with the military judge, appellant provided a “bare bones” explanation of the arrest . He did not provide the ju dge with the na ture of the warrant, nor did he suggest whet her the civilian arrest was made at the request of the military. He did not indicate one way or another if he provided any information toCRAWFORD—ARMY 20110765

4 civilian authorities upon his ar rest that may have changed the character of his return to military control to one that was volu ntary. Moreover, the military judge did not ask any questions regarding th e arrest to help explain the facts and circumstances. Indeed, it is fair to say that similar to th e appellant’s provi dence inquiry in Gaston

, the inquiry here was “e xceptionally brief.” Gaston , 62 M.J. at 406.

To assist in our review of the adequacy of the pl ea, we next review the stipulation of fact. See id. (citing to the lower court’s de scription of the colloquy to justify examining the entire record to dete rmine whether facts to support the plea were established); Jordan , 57 M.J. at 239 (p roviding a broader interpretation of Article 45, UCMJ, and Rule for Courts-Martial 910( e), and expanding review of a plea beyond the providence in quiry). The stipulation in appellant’s case provides, in relevant part:

The accused remained away from the Army and did not return to
Fort Hood until he was apprehended by th e local police in Haleyville, Alabama 4 January 2011 . Thereafter, the accused was held in the Winston County Jail, Alabama until transferred to Fort Hood, Texas.

The foregoing paragraph contained in the stip ulation of fact is si milarly unhelpful in establishing the element of termination by apprehension, in that it fails to address whether appellant’s return to military control was vo luntary or involuntary.

Thus, while, the pr ovidence inquiry and the stip ulation of fact clearly

establish that civilian author ities arrested appellant and then he was transferred to military control, it does not automatically follow that the return to military control was involuntary. 1 Therefore, looking at the record in its entiret y, we find there is a

substantial basis in fact to question appellant’s plea that his absence was terminated

1 Although the military judg e defined “apprehens ion” for appellant , his inquiry on the subject essentially ended there. Ho wever, had appellant’s ca se been tried before a panel, the military judge would have in structed that an arrest by civilian authorities and return to military control do es not, by itself, prove that an accused’s absence was terminated by apprehension. Benchbook, para. 3-10-2 . Rather, it is some evidence that the pane l can consider in deciding whether the accused’s absence ended voluntarily or involu ntarily. Had this instruct ion been discussed with appellant during the providence inquiry, it may have clarified how his absence was

terminated.CRAWFORD—ARMY 20110765

5 by apprehension. 2 We are, however, confident that the military judge’s inquiry is minimally sufficient to establ ish appellant’s guilt to the lesser-included offense of

absence without leave.

CONCLUSION

Accordingly, upon co nsideration of the entire reco rd, including those matters personally raised by appellant pursuant to Grostefon , the court affirms only so much of the findings of guilt y of Charge I and its specification as finds that appellant did, on or about 24 May 2 005, without authority, absent himself from his unit, to wit: Bravo Company, 1st Battalion, 12th Cavalr y Regiment, 4th Brigade Combat Team, 4th Infantry Division, located at Fort Hood, Texas, an d did remain so absent until on or about 4 January 2011. The remaining findings of guilty are AFFIRMED. Reassessing the sentence on the basis of the er ror noted, the entir e 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 in Moffeit , the sentence as approved by the convening authority is AFFIRMED. Al l rights, privileges, and property, of which ap pellant has been depr ived by virtue of that portion of the findings set aside by this decision, are ordered restored. See UCMJ art. 75(a).

Senior Judge KERN and Judge ALDYKIEW ICZ concur.

FOR THE COURT:

ANTHONY O. POTTINGER

2 Even when expand ing our evalua tion to the remainder of the record, we conclude

there is insufficient information to resolve the issue of te rmination by apprehension.

There is no further evidence on this issue prior to the military judge’s acceptance of appellant’s plea, and only on e passing comment during pr esentencing that appellant

“didn’t come back on his own.” ANTHONY O. POTTINGER Chief Deputy Clerk of Court FOR THE COURT: