## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, ALDYKIEWICZ, and MARTIN Appellate Military Judges

UNITED STATES, Appellee

v. Specialist WILLIAM TAPIA United States Army, Appellant

ARMY 20110863

Headquarters, Fort Drum

Elizabeth G. Kuba la, Military Judge Lieutenant Colonel Olga M. Anderso n, Staff Judge Advo cate (pretrial) Colonel Michael O. Lacey, Staf f Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Imogene M. Jami son, JA; Majo r Jacob D. Bashore, JA; Major Daniel E. Goldman, JA (on brief).

For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA (on brief).

8 February 2013

---------------------------------- SUMMARY DISPOSITION

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Per Curiam:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of absence without leave, vi olating a lawful ge neral regulation, wrongfully using marijuana, and wrongful introduction of marijuana onto a military installation with the intent to distribute, in violation of Articl es 86, 92, and 112a, Uniform Code of Military Just ice, 10 U.S.C. §§ 886, 892, 912a (200 6) [hereinafter UCMJ]. The military judg e sentenced appellant to a bad-conduct discharge,

confinement for five months , forfeiture of $900 a m onth for five months, and reduction to the grade of E-1. The convening author ity approved the adjudged sentence and credited appell ant with eight days of conf inement against the sentence

to confinement.

Appellant alleges that th e military judge erred by a ccepting his plea of guilty to wrongful introducti on of a controlled substance onto a military installation with the intent to distribute, where the provid ence inquiry did not establish appellant hadTAPIA —ARMY 20110863

2 the requisite intent to distribute marijuana at the time he committ ed the offense. We agree. For the reasons set fo rth below, we conclude that appellant’s guilty plea to the charge of introduction on to a military installation with the intent to distribute was improvident with respect to distribu tion but provident to the lesser-included offense of wrongful intr oduction of a controlled substance onto a military

installation.

BACKGROUND

During a health and welfare inspecti on of the unit barr acks, the command discovered two digital scales and marijuana in ap pellant’s wall lo cker. Appellant

did not contest th e lawfulness of the search, and subsequently offered to plead guilty, inter alia , to wrongful intro duction of a controll ed substance onto the

installation with the inte nt to distribute and wrongf ul possession of drug paraphernalia in contravention of a lawful general regulati on. During the providence inquiry, appellant admitted th at he purchased the mariju ana in New York City, hid the substance in his baggag e aboard a Greyhound bus, an d then traveled to Fort Drum, New York. The packag e contained twenty-two, indi vidually wrapped plastic bags (“dime bags”) of marijuana.

While appellant freely admi tted that he in troduced the marijuana onto the installation, when the militar y judge questioned him about his intent with regards to the drugs, he equivocated. First, he state d, “My original intent was pretty much just to smoke the bags, just to smoke the marijuana.” Wh en pressed by the military judge if he intended to di stribute the marijuana to ot her soldiers, appellant first answered yes, but then ex plained, “I might have thou ght about, you know, hey, why not, but I never go—I ne ver actually had the chance to . . . .” When the judge again attempted to clarify appellan t’s intent by asking him if he would have sold the marijuana if he had the chan ce, appellant responded, “probably.” The military judge then read the elements one more time, and asked appellant to admit to each element of the charge, and appellant affirmatively responded “yes, ma’am,” to every element, without providing any furthe r detail. Likewise, appell ant’s stipulation of fact summarily states that appell ant intended to distribute the marijuana, but does not provide any facts in support of th is element.

LAW AND DISCUSION

A providence inqu iry into a guilty plea must establish that the accused

believes and admits that he is guilty of the offe nse and that the fa ctual circumstances admitted by the accuse d objectively support the guilty plea. United States v. Garcia, 44 M.J. 496, 497–98 (C.A.A.F. 1996). We review a milita ry judge’s decision to accept a guilty plea for an abuse of di scretion. United States v. Eberle , 44 M.J. 374, 375 (C.A.A.F. 1996). “Once a military judge accepts an accused’ s plea as provident and enters findings ba sed on the plea, we wi ll not reject the pl ea unless there is aTAPIA —ARMY 20110863

3 ‘substantial basis in la w and fact for questioni ng the guilty plea.’” United States v.

Mitchell , 66 M.J. 176, 178 (C .A.A.F. 2008) (quoting United States v. Prater , 32 M.J. 433, 436 (C.M.A. 1991)). “The ‘mere possibility’ of a conflict is no t sufficient to overturn a military judge’s accep tance of a guilty plea.” Id . (quoting United States v. Phillippe , 63 M.J. 307, 309 (C.A.A.F . 2006)). In evaluating a providence inquiry, we must also keep in mind Ju dge Cox’s cautio n that we not

overlook human nature as we go ab out the business of justice. One aspect of human be ings is that we rati onalize our behavior and, although sometimes the ration alization is inconsistent with the plea, more often th an not it is an effo rt by the accused to justify his misbehavior.

United States v. Goodman, 70 M.J. 396, 400 (C.A .A.F. 2011) (quoting United States

v. Penister , 25 M.J. 148, 153 (C.M.A. 1987) (Cox, J., concurring)).

In this case, it appears that appellan t attempted to minimi ze his conduct by claiming he did not intend to distribute the drugs. He was caught with twenty-two individually wrapped packages of marijuana and two digital scales that he admitted were used exclusively to me asure illegal drugs. Nevert heless, “[w]he n appellant’s

statements on the record raised the possibility” that at the time of the offense he intended to keep the marijuana for himself rather than distribute it, “he set up a matter inconsistent with his guilty plea.” Mitchell , 66 M.J. at 181. See UCMJ art. 45(a); Rule for Courts-Mar tial 910(e) Discussion. The military judge’ s attempts to have appellant clarify his objective in regards to the mariju ana did not resolve whether appellant posses sed the requisite inte nt at the time of th e offense, or offer any resolution of hi s possible intent to distribute the marijuana at a later time.

We therefore set aside the finding of guilty to in troduction of a controlled

substance onto the installation with the intent to distribute and a ffirm a conviction to

the lesser-included offe nse of wrongful intr oduction of a contro lled substance onto the installation. Ap pellant’s admissions during the providen ce inquiry and the stipulation of fact establish all the el ements of this less er-included offense. See UCMJ art. 79; Manual for Courts-Martial, United States (2012 ed.), pt. IV, ¶¶ 37.b.(4), 37.d.(6). Furthermore, alth ough we are affirmin g a lesser-included

offense for which the maximum punishment is signifi cantly less than the charged greater offense, in view of the other offenses of which appellant was convicted, and most importantly, the statutory limits of a special court-ma rtial sentence, we conclude that the error in findings was not prejudicial to the sentence. See United

States v. Thomas , 65 M.J. 132, 135 (C .A.A.F. 2007) (citing United States v. Shelton

, 62 M.J. 1, 5 (C.A .A.F. 2005)).TAPIA —ARMY 20110863

4 CONCLUSION

On consideration of the entire record a nd the assigned error, the court affirms only so much of the finding of guilty of Specification 2 of Charge III as finds that appellant did, between on or about 5 July 2010 and on or ab out 28 July 2010, wrongfully introduce twenty-two individua lly wrapped bags of marijuana onto an installation used by the ar med forces, to wit: Fort Dr um, New York. The remaining findings of guilty are A FFIRMED. Reassessing the se ntence on the basis of the error noted, the entire record, and in accordance with the principles of United States

v. Sales , 22 M.J. 305, 308 (C.M.A. 1986), and United States v. Moffeit , 63 M.J. 40 (C.A.A.F. 2006), to include th e factors identified by Judge Baker in his concurring opinion in Moffeit , the approved sentence is AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: