UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class RICHARD K. PRICE JR.

United States Air Force

ACM S32330

26 April 2016

Sentence adjudged 2 April 2015 by SPCM convened at Joint Base

Charleston, South Carolina. Military Judge: Marvin W. Tubbs II (sitting 

alone).

Approved Sentence: Bad-conduct discharge, confinement for 4 months, and

reduction to E-1.

Appellate Counsel for Appellant: Major Jeffrey A. Davis.

Appellate Counsel for the United States: Captain Collin F. Delaney and 

Gerald R. Bruce, Esquire.

Before

MITCHELL, DUBRISKE, and BROWN

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

under AFCCA Rule of Practice and Procedure 18.4.

DUBRISKE, Judge:

In accordance with his guilty plea as part of a pretrial agreement, Appellant was 

convicted by a military judge sitting alone of various drug offenses, including “divers” use 

and distribution of cocaine and alprazolam, in violation of Article 112a, UCMJ, 10 U.S.C. 

§ 912a.

Appellant was sentenced to a bad-conduct discharge, four months of confinement, 

and reduction to E-1. The convening authority approved the sentence as adjudged.
2 ACM S32330

Appellant now argues on appeal that the military judge erred in forcing him to admit 

to additional misconduct during the providence inquiry. He also argues he is entitled to a 

reduction of his sentence due to a violation of his right to timely post-trial processing. 

Finally, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appellant 

claims his sentence is inappropriately severe. Finding no error in this case, we now affirm 

the findings and sentence.

Background

Appellant, an aircraft maintainer, began using illegal drugs to cope with a new 

marriage and its corresponding financial problems. In addition to using cocaine, Appellant 

found the drug alprazolam, commonly referred to as Xanax, allowed him to better manage 

his personal struggles.

In conjunction with his use of drugs, Appellant provided both cocaine and 

alprazolam to another Airman. Appellant either provided the drugs for free, or charged 

only enough to cover the cost of the drugs he obtained for this Airman. The other Airman 

reciprocated on occasion and provided drugs for Appellant’s personal use.

Appellant’s drug activity was eventually exposed by his active duty spouse due to 

her concerns about Appellant’s safety, as well as how his drug activity would impact her 

military service. When interviewed by military law enforcement, Appellant confessed to 

conduct which led to the charges currently before this court.

Military Judge’s Plea Inquiry

Appellant’s use and distribution of cocaine and alprazolam was each charged as 

occurring on “divers” occasions. After properly instructing Appellant on the meaning and 

effect of his guilty plea, including the fact that his plea required Appellant to give up his 

right against self-incrimination, the military judge accurately provided Appellant with the 

elements for the offense of wrongful use of cocaine. Of relevance to Appellant’s claim, 

the military judge informed Appellant that the term “divers” was defined as “on more than 

one occasion.”

When asked by the military judge why he believed he was guilty of this offense, 

Appellant noted he used cocaine “multiple times” during the time frame charged by the 

prosecution. In response to Appellant’s statement that most of his use took place during a 

two-month period of time, the military judge asked Appellant if there were additional uses 

outside of those two months that were also within the charged time frame. Appellant noted 

there were two other months in which he used cocaine.
3 ACM S32330

The military judge then asked Appellant how many times he ingested cocaine during 

the charged time frame. Trial defense counsel objected to the question, arguing Appellant 

did not need to answer the question in order to plead guilty. The military judge disagreed 

and immediately elicited a response from Appellant that he had used cocaine six times.

Appellant provided the same or a similar generic response during the inquiry into 

his use of alprazolam and distribution of cocaine. The military judge, over defense 

objection, continued to elicit from Appellant the actual number of times he used or 

distributed the drug. Appellant then changed his approach when discussing his distribution 

of alprazolam, informing the military judge he distributed the drug on at least three 

occasions. The military judge did not inquire further as to whether Appellant engaged in 

additional distributions during the charged time frame.

Appellant now claims the military judge abused his discretion in requiring him to 

provide the court with the specific number of times he used or distributed controlled 

substances. Appellant argues the term “divers” only required him to admit the charged 

misconduct occurred on at least two occasions during the time frame alleged by the 

prosecution in its charging document. As the military judge required Appellant to discuss 

other misconduct to establish the factual predicate for the guilty plea, Appellant argues the 

military judge had an erroneous view of the law and, therefore, abused his discretion. He 

also alleges the military judge’s excessive questioning violated Appellant’s constitutional 

right against self-incrimination by compelling Appellant to provide evidence against 

himself at trial. Appellant claims these admissions prejudiced him during sentencing and 

asks this court provide meaningful relief towards his sentence. 

In addressing Appellant’s claim, we would first note there is no constitutional right 

to plead guilty. United States v. Matthews, 16 M.J. 354, 362 (C.M.A. 1983). While an 

accused service member does have the right to offer a guilty plea in a non-capital case, the 

plea cannot be accepted if the member testifies or otherwise “sets up matter inconsistent 

with the plea.” United States v. Penister, 25 M.J. 148, 151 (C.M.A. 1987); see also, Article 

45(a), UCMJ, 10 U.S.C. § 845(a).

When a guilty plea is offered, it is the military judge who has the obligation to 

establish a factual basis for a guilty plea exists. Rule for Courts-Martial (R.C.M.) 910(e). 

A military judge is given substantial deference in deciding which facts to elicit in order to 

establish a factual basis for a guilty plea, and his decision to accept a guilty plea is reviewed 

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

We find no abuse of discretion by the military judge in this case. The military judge 

was responsible for ensuring Appellant provided a proper factual basis for his plea. In this 

light, his questions were appropriate in determining whether Appellant’s use and 

distribution of various controlled substances on “divers” occasions was provident. This is 

especially true in this case given Appellant’s non-specific admissions that his use and 
4 ACM S32330

distribution of controlled substances occurred “multiple” times. The military judge’s 

additional questions clarified Appellant’s responses.

We likewise reject the claim that the military judge’s questions somehow violated 

Appellant’s constitutional right against self-incrimination. Appellant waived his right 

against self-incrimination as it related to the offenses to which he pled guilty. See United 

States v. Holt, 27 M.J. 57, 59 (C.M.A. 1988); R.C.M. 910(c)(4). Appellant specifically 

acknowledged this waiver on the record, along with the fact that his admissions would be 

used during sentencing. The military judge’s questions were limited to the charged time 

frame and, as such, ensured jeopardy attached to all of Appellant’s admissions. 

Furthermore, Appellant could have either withdrawn his guilty plea or refused to answer 

the military judge’s questions deemed objectionable––a tactic that would certainly increase 

the likelihood the military judge would not accept his plea. For these reasons, we find any 

constitutional claims directly related to Appellant’s plea have been waived. See United 

States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969).

Post-Trial Processing Delay

Appellant next argues he is entitled to meaningful sentencing relief for the 

Government’s post-trial processing delays in violation of United States v. Moreno, 63 M.J. 

129 (C.A.A.F. 2006). Specifically, Appellant claims the Government’s processing 

exceeded the 30-day standard for docketing a case with a court of criminal appeals after 

the initial convening authority action. See id. at 142.

The convening authority originally took action on 22 April 2015, which was 20 days 

after Appellant’s court-martial had adjourned. The staff judge advocate’s recommendation 

(SJAR) and its first addendum improperly advised the convening authority that he did not 

have the discretionary authority to disapprove all of the adjudged findings in Appellant’s 

case. After the submission of three additional addenda to correct misstatements about the 

law, the convening authority withdrew the original action. On 21 July 2015, after 

reviewing all matters required by Article 60, UCMJ, 10 U.S.C. § 860, including 

Appellant’s clemency submission, the convening authority substituted a new action which 

approved Appellant’s sentence as adjudged at trial.

While Appellant recognizes the case was docketed within 30 days of the 21 July 

2015 action, he argues the Government should be held accountable for the erroneous 

statements of law in the SJAR and its addenda that resulted in months of additional delay. 

Appellant reasons that we should hold the Government to its initial action date, 22 April 

2015, when evaluating whether the case has been docketed within 30 days of action. 

Applying this standard, Appellant notes the Government would have violated the Moreno

standard by over 70 days.
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We decline to extend Moreno as advocated by Appellant in this case. Pursuant to 

R.C.M. 1107(f)(2), the convening authority may, after taking action, recall and modify his 

action prior to forwarding the record for review, as long as the modification does not result 

in action less favorable to an appellant. The convening authority’s subsequent review of 

Appellant’s case overrode the 22 April 2015 action, leaving the record of trial with only 

the 21 July 2015 action for our review. This additional processing resulted in a 110-day 

delay between sentence and action, 10-days short of the Moreno presumption of 

unreasonableness. Furthermore, Appellant’s case was docketed with this court within 14

days of action. Given there is no facially unreasonable delay for us to address with regard 

to either the date of action or the docketing of this case, we need not conduct a further 

analysis. See Moreno, 63 M.J. at 136; United States v. Roach, 69 M.J. 17, 22 (C.A.A.F. 

2010).

Our finding of no Moreno violation does not end the inquiry as we may grant 

sentence relief under Article 66(c), UCMJ, 10 U.S.C. § 866(c), for unreasonable post-trial 

delays. United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002). However, “[a]ppellate relief 

under Article 66(c) should be viewed as the last recourse to vindicate, where appropriate, 

an appellant’s right to timely . . . review.” Id. at 225.

While this case is not a textbook example of post-trial processing, the fact remains 

the Government eventually provided the correct advice to the convening authority about 

his options to grant Appellant clemency––advice that was to Appellant’s benefit. The 

delay clearly resulted from the Government’s confusion on how the significant changes to 

Article 60, UCMJ, 10 U.S.C. § 860, impacted a case when the charged offenses straddled 

the effective date of the legislative amendment. This confusion was reasonable in our 

opinion. We find no bad faith on the part of the Government and are not persuaded that 

Tardif relief is warranted in this case.

Sentence Appropriateness

Finally, pursuant to Grostefon, Appellant argues his sentence is inappropriately 

severe. Appellant calls the court’s attention to the circumstances surrounding his use of 

drugs, including the fact that he primarily used prescription drugs to self-medicate and cope 

with the stressors in his life.

This court reviews sentence appropriateness de novo. United States v. Lane, 64 M.J. 

1, 2 (C.A.A.F. 2006). “We assess sentence appropriateness by considering the particular 

appellant, the nature and seriousness of the offense[s], the appellant’s record of service, 

and all matters contained in the record of trial.” United States v. Anderson, 67 M.J. 703, 

705 (A.F. Ct. Crim. App. 2009). Although we are accorded great discretion in determining 

whether a particular sentence is appropriate, we are not authorized to engage in exercises 

of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
6 ACM S32330

Based on our review of the entire record of trial, including matters in extenuation 

and mitigation as highlighted by Appellant, we cannot say the sentence imposed by the 

military judge is inappropriately severe. Appellant pled guilty to using and distributing 

multiple drugs, including cocaine. We do not find Appellant’s justification for his drug 

activity compelling and, therefore, decline to grant him any relief towards his sentence.

Conclusion

The approved findings and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 

66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the sentence are 

AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN

Clerk of the Court