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UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before LIND, KRAUSS, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant MALCOLM S. FIAME

United States Army, Appellant

ARMY 20140472

Headquarters, III Co rps and Fort Hood Gregory Gross, Military Judge
Colonel Tania M. Martin , Staff Judge Advocate

For Appellant: Major Yolanda McCray Jones, JA; Ca ptain Brian J. Sullivan, JA.

For Appellee: Pursuant to A.C.C.A. Rule 15.2 , no response filed.

22 January 2015

--------------------------------- OPINION OF THE COURT

---------------------------------

LIND, Senior Judge:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of one specificat ion of conspiracy to sell military property without authority; one specification of unau thorized sale of military property of a value greater than $500.00 on divers occasions; and one specificatio n of larceny of military property of a value greater than $500.00 on divers occa sions in violation of Articles 81, 108, and 121, Uniform Code of Military Justice [h ereinafter UCMJ], 10 U.S.C. §§ 881, 908, 921 (2012). The mili tary judge sentenced appellant to a badconduct discharge, confinem ent for seven mont hs, forfeiture of $1,021.00 pay per month for seven months, and re duction to the grade of E-1. The convening authority approved the adjudged sentence.

This case is before the court for review pursuant to Article 66, UCMJ. Appellant submits the case on its merits. After review of th e entire record, we find a substantial basis in law and fact to questi on appellant’s pleas of guilty to the valueFIAME—ARMY 20140472

2 element of both the Specification of Charge III (larceny of mili tary property of a value greater than $500.00 on divers occasions) and Specification 1 of Charge II (unauthorized sale of milita ry property of a value greater than $500.00 on divers occasions). We will provide reli ef in our decretal paragraph.

LAW & DISCUSSION

During the providence inqu iry concerning the Specific ation of Charge III and Specification 1 of Charge II , appellant admitted to steal ing and selling various items of military property on dive rs occasions. Appellant admitted that the total value of
all of the items he stole an d later sold exceeded $50 0.00 for each sp ecification.

In cases of larceny, the value of the property controls the maximum punishment which may be adjudged. Manual for Courts-Mar tial, United States [hereinafter MCM ] (2012 ed.), pt. IV, ¶ 4 6.e.(1). If mu ltiple items are stolen “at substantially the same time and place,” it is proper to aggregate the value of those items and charge the thef t in one specification. United States v. Hines , 73 M.J. 119, 123 (C.A.A.F. 2 014) (quoting MCM (2008 ed.), pt. IV, ¶ 46.c.(1)(h)(ii)); see also

MCM (2012 ed.), pt. IV, ¶ 46.c.(1)( i)(ii). For an accused to be convicted of larceny of property of a value greate r than $500.00, “the record must show either that one item of the property stolen has such a value or that seve ral items taken at substantially the same time and place have such an aggregate value.” United States v. Harding , 61 M.J. 526, 528 (Army Ct. Crim. App. 2005) (quoting United States v.
Christensen , 45 M.J. 617, 619 (Arm y Ct. Crim. App. 1997)); see also United States v. Rupert , 25 M.J. 531, 532 (A.C.M.R. 1987); cf. Hines , 73 M.J. at 1 21 (holding that larceny and wrongful ap propriation of Basic Allowance for Housing pay over several months was properly aggregat ed because “[t]he formulation of a pl an or scheme or the setting up of a me chanism which, when put into operation, will result in the taking or diversion of sums of money on a recurring basis, will produce but one crime.”) (citation omitted).

Similarly, in cases involving the unauthorized sale of military property and damage of property other than military property (violations of Articles 108 and 109, UCMJ, respectively), the value of th e property cont rols the maximum punishment an
accused faces. MCM (2012 ed.), pt. IV, ¶¶ 32.c.(3), 33.c.(3). However, the MCM contains no guidance as to whether or when it is proper to aggregate the value of military property that is wron gfully sold or damaged.

Our superior court has previously ap plied the “same time and place” value aggregation principle of larceny to a vi olation of Article 109 , UCMJ, damage to nonmilitary property. United States v. Collins , 16 U.S.C.M.A. 167, 169, 36 C.M.R.FIAME—ARMY 20140472

3 323, 325 (1966). 1 In Collins , the Court of Military Appeal s held that “when several articles of property are da maged, in violation of Arti cle 109, under circumstances indicating only a single incide nt or transaction, the damage must be alleged as part
of one offense.” Id. (citations omitted).

Our court has applied the sa me value aggregat ion principle to the Article 134, UCMJ, offense of obtaining se rvices by false pretenses, a crime that by its very nature is “similar to . . . larceny.” United States v. Oki , ARMY 20050114, 2006 CCA LEXIS 431, at *6-8 (Army Ct. Crim. App. 28 Ju n. 2006) (mem . op.) (per curiam) (quoting MCM (2005 ed.), pt. IV, ¶ 78.c) (h olding that “the prohibition against aggregation of value that applies to larceny, likewise applies to obtaining services by false pretenses.”).

Finally, our court and the Air Force Court of Criminal Appeals, in unpublished opinions, have applied the same value ag gregation principle to a violation of Article 108, UCMJ, unauthorized sale of military property. See United
States v. Allen

, ARMY 20030495, 2006 CCA LEXIS 400 (Army Ct. Crim. App. 1 Jun 2006) (mem. op.); United States v. Pelaccio , ARMY 20130815, 2014 CCA LEXIS 450 (Army Ct. Crim. App. 24 Jun 2014) (summ. disp.) (per curiam); United
States v. Jackson , ACM S31116, 2007 CCA LEXIS 337 (A.F . Ct. Crim. App. 31 Aug 2007); see also United States v. Wakeman , 25 M.J. 644, 645- 46 (A.C.M.R. 1987) (per curiam) (implicitly en dorsing the trial judge’s application of the value aggregation principle to th e Article 108, UCMJ, offense of unauthorized sale of military property).

The analyses by our superior court, our sist er court, and th is court—applying the same value aggregation principle to the various offenses against property—is persuasive. We find nothing in our review of the text of Article 108, UCMJ, or its

1 The court relied in part on paragraph 200 a (7) of the MCM (1951 ed.), which contained virtually identi cal language to paragrap h 46.c.(1)(i)(ii) of the MCM (2012 ed.):

When a larceny of several articles is committed at substantially the same time and place, it is a single larceny even though the articles be long to different persons. Thus, if a thief steals a suitcas e containing the property of several individuals or goes in to a room and takes property belonging to various persons, there is but one larceny, which should be alleged in but one specification.

MCM (1951 ed.), ch. XXVIII, ¶ 200 a (7).FIAME—ARMY 20140472

4 legislative history (to include that of its pr edecessor Articles of War 83 and 84) that would argue against applicatio n of the larceny principles for computation of value,
to include the value a ggregation principle, to Article 108, UCMJ.

We, therefore, hold that the value aggr egation principle applicable to larceny is also applicable to the una uthorized sale of military property under Article 108,

UCMJ.

We now turn to our review of the providence inquir y in appellan t’s case. A military judge’s decision to accept a guil ty plea is reviewed for an abuse of
discretion. United States v. Schell , 72 M.J. 339, 345 (C .A.A.F. 2013) (citing United
States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008 )). A guilty plea will only be
set aside if we find a substantial basis in law or fact to question the plea. Id. (citing
Inabinette , 66 M.J. at 322). The court applies this “subst antial basis” test by determining whether the record raises a su bstantial question about the factual basis of appellant’s guilty plea or the law un derpinning the plea. Inabinette , 66 M.J. at 322; see also UCMJ art. 45(a); Rule for Courts-Martial [hereinafter R.C.M.] 910(e);
United States v. Weeks , 71 M.J. 44, 46 (C.A.A.F. 2012) (“It is an abuse of discretion for a military judge to accept a guilt y plea without an adequa te factual basis to support it . . . [or] if the ruli ng is based on an erroneous vi ew of the law.”). In order to establish an adequa te factual predicate for a guilty plea, the milita ry judge must
elicit “factual circumstances as revealed by the accused himself [that] objectively support that plea . . . .” United States v. Davenport , 9 M.J. 364, 367 (C.M.A. 1980).

In this case, the providence inquiry and th e stipulation of fact established that
the total value of the items stolen by appell ant on divers o ccasions exceeded $500.00 and that the total value of the items sold by a ppellant on divers occasions exceeded $500.00. However, neither the stipulation of fact nor the providence inquiry established either that: (1) any item listed in the specifications had a value greater than $500.00, or (2) that the value of all of th e items stolen or sold at any one time and place was greate r than $500.00. Given the mi litary judge’s failure to
elicit a factual basis that appellant on divers occa sions stole or sold military property of a value greater than $500.00 and the resu lting improper aggregation of the value of the separate larcenies and un authorized sales of military property, we
find a substantial basi s in law and fact to question th e providence of appellant’s plea to the larceny and unauthoriz ed sale of military property of a value greater than $500.00.FIAME—ARMY 20140472

5 CONCLUSION

We affirm only so much of Specification 1 of Char ge II as provides:

In that Sergeant Ma lcolm S. Fiame, U.S. Army, did, at or near Killeen, Texas, on dive rs occasions, between on or about 1 January 2013 and on or about 13 November 2013, without proper authority, sell to Mr. N.N. (a.k.a. “Mike”) some voltage meters, some pr inter ink cartridges, some fire extinguishers, some hand tools, a table saw, some vehicle jacks, some helmet pads, some chin straps, and
some Multiband Inter/Intra Te am Radio pouches, of some value, military property of the United States.

We affirm only so much of the Specifi cation of Charge II I as provides:

In that Sergeant Ma lcolm S. Fiame, U.S. Army, did, at or near Fort Hood, Texas, on dive rs occasions, between on or about 1 January 2013 and on or about 13 November 2013 steal some voltage meters, so me printer i nk cartridges, some fire extinguishers, so me hand tools, a table saw, some vehicle jacks, some helm et pads, some chin straps,
and some Multiband Inter/In tra Team Radio pouches, some antennas, and some nigh t sights, military property, of some value, the prope rty of the U.S. Army.

The remaining findings of guilty are AFFIRMED.

Reassessing the sentence on the basis of the errors note d, the entire record, and applying the principles of United States v. Sales , 22 M.J. 305, 307-08 (C.M.A. 1986) and the factor s set forth in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013), we ar e confident the military judge would have adjudged the same
sentence absent the errors noted.

There is no dramatic change in th e penalty landscape or exposure. See
Winckelmann , 73 M.J. at 15-16. Wh ile appellant’s theoretical maximum sentence to
confinement would be re duced from thirty ye ars to twelve years, 2 this case was tried

2 The maximum punishment for th e unauthorized sale of mil itary property of a value less than $500.00 incl udes one year of co nfinement, but increas es to ten years of confinement if the pr operty is valued at more than $500.00. MCM (2012 ed.), pt. IV,

(continued . . .)FIAME—ARMY 20140472

6 at a special court-martial wh ere the sentence to confinement was limited to one year, so appellant’s actual maximum sentence to confinement did not change. See MCM (2012 ed.), pt. IV, ¶¶ 5.e, 32.e.(1)(a)-(b), 46.e(1)(a),(c ); UCMJ art. 19; R.C.M. 201(f)(2)(B). The gravamen of the offenses has not changed. Winckelmann , 73 M.J.
at 16. The total value of th e military property stolen an d sold remains the same and was admissible as aggravation eviden ce before the mi litary judge. See id. Finally,
this court reviews the records of a substa ntial number of courts -martial involving larceny and the sale of milita ry property, and we have extensive experience with the
level of senten ces imposed for such offenses under various circumstances. See id.
The sentence is AFFIRMED. *All rights, privileges , and property, of which appellant has been deprived by virtue of th at portion of the findings set aside by this decision, are ordered restored.

Judge KRAUSS and Ju dge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

(. . . continued) ¶ 32.e.(1)(a)-(b). The penalty scheme is th e same for larceny of military property.

MCM (2012 ed.), pt. IV, ¶ 46.e.(1)(a), (c).

*Corrected MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: