## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before NEVIN, OLMSCHEID, and KIRBY Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant SCOTT K. STOKES United States Army, Appellant

ARMY 20041348

Defense Language Institute Foreign Langua ge Center and Pres idio of Monterey Robert Smith, Military Judge Colonel John L. Clifton, Staff Judge Advocate

For Appellant: Colonel John T. Phelps II, JA; Lieutenant Co lonel Kirsten V.C. Brunson, JA; Captain Charles L. Pritchard, Jr., JA; (on brief); Lieutenant Colonel Steven C. Henricks, JA; Major Tyesha E. Lowery, JA ; Captain Sean F. Mangan, JA (on specified issue brief).

For Appellee: Colonel John W. Miller II, JA; Lieute nant Colonel Michele B. Shields, JA; Major Paul T. Cygnarowicz, JA; Captain Trevor B.A. Nelson, JA (on brief); Lieutenant Colonel Kevin Boyle, JA; Major Paul T. Cygnarowicz, JA; Captain Trevor B.A. Nelson, JA (on specified issue brief).

11 June 2007

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

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

NEVIN, Chief Judge: 1

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of absence without leave, wrongful appropriation of private property valued at over $5 00.00, larceny of pr ivate property valu ed at over $500.00, larceny of military property valued at ov er $500.00, and forgery, in violation of Articles 86, 121, and 123, Uniform Code of M ilitary Justice, 10 U.S.C. §§ 886, 921, and 923 [hereinafter UCMJ]. The conven ing authority approv ed the adjudged
sentence to a bad-co nduct discharge, confinement for eight months, an d reduction to Private E1, and deferred automatic fo rfeiture of pay until action.

1 Chief Judge Nevin took final action while on active duty.STOKES – ARMY 20041348

2 We have considered the reco rd of trial, appellant’s assignments of error, the matter appellant personally raised pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), appellant’ s brief on the specified i ssue and the government’s responses thereto. We agree with appellant ’s second assignment of error, that he was not properly credited wi th two days of confinemen t credit awarded by the military judge for time spent in pretrial civilian confinemen t and will credit appellant’s sentence accordingly. 2 We find the remaining errors asserted by appellant, however, to be without merit and write this opinion to clarify the scope of our review on appeal.

For the reasons stated below, we find that we must limit our review of the providence of appellant’s pleas to the evidence admitted at trial . We reject, therefore, appellant’s as sertions and the governmen t’s concession, based upon
information outside the record of trial, that appellant was not provident to his plea of guilty to Specification 3 of Ch arge II (larceny of military property). Furthermore, although not raised by appellant, we are le ft with the conclusion that defense counsel misadvised appe llant to plead guilty to larc eny of military property by misusing his government trav el card where the relevant contracts establish that the military would not have been held liable for appellant’s misuse. However, we find
this did not constitute ineffective assistan ce of counsel becaus e, in context, the
erroneous advice did not materially prejudice appellant.

Moreover, we reject appellant’s assertion that even if we limit our review to the record developed at trial, there is a su bstantial basis to question appellant’s plea of guilty to larceny of military property. We also reject the government’s assertion that appellant’s explanation to the military judge that th e property in question was military property (becau se “once the charge was on the ca rd and [he] wasn’t going to pay it back . . . the government would be re sponsible to pay [its] credit card back”)

was a legal conclusion insufficient to provide th e requisite factual basis to support his plea. 3

2 Although awarded by the mi litary judge after sentencing, the convening authority’s
initial action failed to include this credit. See Rule for Courts-Mar tial 1107(f)(4)(F); Army Reg. 27-10, Legal Se rvices: Military Justice, para. 5-28a (16 Nov. 2005) (requiring a convening authority to “show in [the] initial action all credits against a
sentence to confinement . . . re gardless of the source of the credit . . . or for any . . . reason specified by the judge”); United States v. Delvalle , 55 M.J. 6 48, 649 n.1, 656 (Army Ct. Crim. App. 2001); United States v. Arab , 55 M.J. 508 , 510 n.2, 520 (Army Ct. Crim. App. 2001).

3 Appellant did not simply tell the military judge that th e property in question was military property beca use the government was liable for his purchases. Had this
been the extent of th e military judge’s inquiry, we w ould be inclined to agree withSTOKES – ARMY 20041348

3 FACTS AND PROCEDURAL BACKGROUND

Appellant, a chaplains’ as sistant at the Presidio of Monterey, served as the custodian of the chaplains’ fund. Over a period of se veral months he stole over $7,500.00 from the chaplains’ fund by writing checks to himself and forging signatures of those with the requisite approval au thority, and by stealing cash offerings. Also, over a peri od of several months he wron gfully used his government
travel card to st eal over $1,600. 00. Following commissi on of these offenses, appellant went absent without leave (AWO L) for approximately five months. To facilitate his flight from his Army unit, he wrongfully appropri ated the privately
owned vehicle of another soldier.

Appellant alleges on appeal, inter alia , that his plea of guilty to Specification 3 of Charge II (larceny of military property by improperly usi ng his government travel card) was im provident because, co ntrary to his te stimony during the Care inquiry, 4 the property was not, in fact, military pr operty because the government was not liable for appellant’ s charges to his govern ment travel card.

Appellant submitted portions of the Bank of America Department of Defense Visa Travel Card Program Card Holder Program Guide and Department of Defense Financial Management Regulation as attachments to his ap pellate brief to support
his assertion that th e property was not m ilitary property. Th is evidence was not introduced at trial, altho ugh available at the time. Moreover, the evidence was not
determinative as to whether th e property in ques tion was military property, as there was no evidence presented either at trial or in th e appellate briefs in dicating that the policies contained in these documents were ever inco rporated into the relevant
contracts at the time of the offenses. Neither ap pellant nor the government

the government. Liability is a legal concept, the implica tions of which we would not assume that a lay pers on fully appreciated. See United States v. Redlinski , 58 M.J. 117, 119 (C.A.A.F. 2003) (“Althoug h [a]ppellant is not entitled to receive a hornbook review of the [compl ex inchoate offense of a ttempt], the record must objectively reflect that [a]p pellant understood that his conduct, in order to be criminal, needed to go beyo nd preparatory steps and be a direct movement toward the commission of the intended offense.”) . Appellant need no t have a law school education, however, to appreci ate the meaning of his own assertion that “once the charge was on the card and [h e] wasn’t going to pay it back . . . the government would be responsible to pay [its] credit card back.” See United States v. Morris, 58 M.J. 739, 742 (Army Ct. Crim. App. 2003), pet. denied 59 M.J. 146 (C.A.A.F. 2003). This assertion is not a legal conclusion as to liability; rather it is an assertion of the underlying fa cts needed to make that conclusion.

4 United States v. Care , 18 C.M.A. 535, 541, 40 C.M.R. 24 7 (1969).STOKES – ARMY 20041348

4 submitted for this court’s consideration the evidence th at is determinative on the
issue — the contracts between appellant and Bank of America 5 and between the Department of Defense and Bank of America 6 in effect at the ti me of the offenses.

During the providence in quiry, appellant admitted, under oath, that the property in question was military property be cause “once the char ge was on the card and [he] wasn’t going to pay it back . . . the government would be responsible to pay [its] credit card back.” As a consequenc e, following a Rule for Courts-Martial [hereinafter R.C.M.] 802 conference with counsel, the milit ary judge, without objection from appellant or the government, determined on the record that the credit card obligations were, in fact, military property.

The government, citing to the same tw o documents as appellant, conceded in its appellate brief that the government would not have been liable for appellant’s charges to his government trav el card and, therefore, the property was not military property. The government urge d this court to am end Specification 3 of Charge II to substitute the words “Bank of America proper ty” for the words “military property.”

After our initial review of the case under Arti cle 66(c), UCMJ, we ordered counsel to submit briefs on the following specified issue:

WHETHER THE COURT HAS THE AUTHORITY UNDER ARTICLE 66(c), UNIFORM CODE OF MILITARY JUSTICE, TO USE EVIDENCE AVAILABLE, BUT NOT OFFERED OR ADMITTED, AT THE TIME OF TRIAL, IN EVALUATING THE
PROVIDENCE OF A GUILTY PLEA. See United States
v. Russel , 50 M.J. 99 (C.A.A.F. 1999); United States v.

Boone , 49 M.J. 187 (C.A .A.F. 1998); United States v. Mason, 45 M.J. 483 (C.A.A.F. 1997); United States v. Parker , 36 M.J. 269 (C.M.A. 1993).

Furthermore, for the so le purpose of properly analyzi ng the potential collateral issue
of ineffective assistance of c ounsel, we ordered government appellate counsel to file
the contract in effect at th e time of the alleged offenses between the Department of
Defense and Bank of America.

5 Bank of America was the issuer of the credit card used in the larcenies.

6 This contract woul d have explained the extent of the government’ s liability for failure of Department of Defense cardholders to pa y their credit card debts.STOKES – ARMY 20041348

5 DISCUSSION

I. Scope of Review on Appeal

Law

Non-collateral Issues

Under Article 66(c), UCMJ, th is court is charged with:

affirm[ing] only such findings of guil ty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire
record , should be approved. In considering the record

, [we] may weigh the evidence , judge the credibility of witnesses, and determine cont roverted questions of fact, recognizing that the trial court saw and heard the
witnesses.

(Emphasis added.) Our superior court ha s characterized our au thority under Article 66(c), UCMJ, as an “awesome, plenary, de novo power of review” and described the service courts as “something like the proverbial 800-poun d gorilla when it comes to their ability to prot ect an accused.” United States v. Parker , 36 M.J. 269, 271 (C.M.A. 1993). As Judge Wiss noted in his co ncurring opini on, however:

Even a court with “awesome, plenary, de novo power of
review” and with “ carte blanche to do justice” is not
unrestricted. No court is free to act beyond the perimeter of its legal mandate, whethe r acting on behalf of an
individual accused or on behalf of the people through the prosecution. There are some places where even “the proverbial 800-po und gorilla” is no t free to roam.

Id . at 273 (Wiss, J., concurring) (citing United States v. Bethea , 22 U.S.C.M.A. 223, 46 C.M.R. 223 (1 973)). In Bethea , our superior court clearly articulated that Article 66(c), UCMJ, limits our authority, in regard to the findings, 7 to the record as

7 Government counsel, in their brief on the specified issue, erroneous ly rely on our superior court’s admonition in United States v. Healy , 26 M.J. 394, 395 (C.M.A. 1988), that we are to assure that “justice is done” as authority for us to consider additional matters on appeal. That reliance, however, is misplaced. Healy specifically limited itself to the issue of whether a service court erred in refusing to consider letters, primarily written by prison official s after trial, recommendingSTOKES – ARMY 20041348

6 developed at trial . For, “[u]ndeniably, evidence not pres ented at the trial cannot be used to support or reverse a conviction . . . .” Bethea , 22 U.S.C.M.A. at 225, 46 C.M.R. at 225 (quoting United States v. Lanford , 6 U.S.C.M.A. 371, 379, 20 C.M.R. 87, 95 (1955)); see also Fed. R. App. P.10 (The record of trial on appeal consists of “(1) the original papers and exhibits filed in the district court; (2) the transcript of proceedings, if any; and (3) a certified co py of the docket entries prepared by the district clerk.”). This prin ciple has been reiterated in a long line of cases and, as evidenced by our superior cour t’s decision th is term in United States v. Beatty , 64 M.J. 456 (C.A.A.F. 2007), re mains in full force today. 8 The Beatty Court stated, “In

reduction in the length of c onfinement. It answered this question in th e negative and
affirmed the service cour t’s decision. Moreover, Healy held:

We infer . . . that Congress ne ver intended th at a [service court] would be under any du ty to receive additional information on sentencing after the convening authority
had acted. . . .

. . .The point is th at the [service cour t] has no duty to
receive information or data th at purports to be relevant only to clemency and that, af ter the convening authority has acted, the Code provides no way of bringing to the attention of the [service court] information that purportedly bears even on sentence appropriateness .”

Id . at 396-97 (emphasi s added).

8 See also United States v. Roderick , 62 M.J. 425, 431 (C.A .A.F. 2006) (holding a
service court “is constraine d by the bounds of th e record from the court below when reviewing an appellant’s guilt or innocen ce for factual or le gal sufficiency.”); United
States v. Holt , 58 M.J. 227, 232 (C.A .A.F. 2003) (“Article 66(c )[, UCMJ,] limits the [service courts] ‘t o a review of the facts, testimony, and evidence presen ted at trial, and precludes a [service court] from cons idering ‘extra-record’ matters when making determinations of guilt, innocence, and sentence ap propriateness.’” (quoting United

States v. Mason , 45 M.J. 483, 484 (C.A.A.F. 1997)); United States v. Scheurer , 62 M.J. 100, 108 (C.A.A.F. 2005 ) (reciting its holding in Holt , 58 M.J. at 232-33, that “a court of criminal appeal s ‘may not resurrect exclud ed evidence’ or consider
evidence in a manner inconsis tent with the limited purp ose for which the military judge admitted it.”); United States v. Reed , 54 M.J. 37, 43 (C.A.A.F. 2000) (upholding a service court’s decision refu sing to consider information from an Article 32, UCMJ, in evaluating guilt); United States v. Boone , 49 M.J. 187, 193 (C.A.A.F. 1998) (“[T]he servi ce appellate court has ‘factfi nding power on collateral
claims’ but . . . it is not authorized ‘to determine innocence on the basis notSTOKES – ARMY 20041348

7 a succession of early cases, we established that the review of findings — of guilt or
innocence — was limited to the ev idence presented at trial.” Id . at 458 (citing Holt

, 58 M.J. at 232; Bethea , 22 U.S.C.M.A. at 224-2 5, 46 C.M.R. at 224-25; Lanford , 6 U.S.C.M.A. at 379, 20 C.M.R. at 95; United States v. Duffy , 3 U.S.C.M.A. 20, 23, 11 C.M.R. 20, 23 (1953); United States v. Whitman , 3 U.S.C.M.A. 179, 180, 11 C.M.R. 179, 180 ( 1953).

Furthermore, if there was any doubt that the principle of limiting review to the record developed at trial applied only to contested cases, our superior court dispelled that notion long ago in its decision in United States v. Davenport , 9 M.J. 364 (C.M.A. 1980); see also United States v. Roane , 43 M.J. 93, 99 (C.A.A.F. 1995); United State v. Peele , 46 M.J. 866, 868 (Arm y Ct. Crim. App. 1997). “[E]vidence from outside the record will no t be considered by appellate authorities to determine anew the providence of the plea. . . . [P]rovidence of a tendered plea of guilty is a matter to be established one way or the other at trial.” Id. at 367.

Collateral Issues

This court’s reviewing authority with re spect to collateral issues, such as post-trial confinement, pros ecutorial misconduct, unlawf ul command influence, or ineffective assistance of counsel permits, however, a more expansive definition of
“the entire record” than that permitted during our review of non-collateral issues. 9

Consideration of collateral issu es requires us to include within the mean ing of “the
entire record” additional materials that ma y be submitted with appellate pleadings,
attached to allied docu ments, or derived from other sources. This is so because, by their very nature, collateral issues deal with matter s that may not be readily apparent

presented at tr ial.’”) (quoting United State v. Ginn , 47 M.J. 236, 242 (C.A.A.F. 1997)).

9 We note that our review of petitions for new trial also requires a more expanded
view of what is incl uded in the “entire record.” Rule for Courts-Martial 1210(f)
allows for a new trial when there is new evidence discovered afte r trial, which would not have been discovered through the exerci se of due diligence prior to trial and which would probably produc e a substantially better re sult for the accused. See also
United States v. Garcia , 19 F.3d 112 3, 1126 (6th Cir. 1994); United States v. Wilson

, 894 F.2d 1245, 1252 (11th Cir. 1990); United States v. Meyers , 484 F.2d 113, 116 (3d Cir. 1974). Petitions for new trial will not be granted, however, on th e basis of newly discovered evid ence “when the petiti oner was found guilty of the relevant offense pursuant to a guilty plea.” R.C.M. 1210(a). As appella nt pled guilty to larceny of military property, R.C.M. 1210(a) precludes hi m from submitting a petition for new trial based on newly discovered evidence.STOKES – ARMY 20041348

8 at trial and, therefore, mi ght not have been reasonably developed at trial. See United States v. Boone, supra ; United States v. Ginn, supra; see also United States v. Bright , 60 M.J. 936, 939 (Army Ct. Crim. App. 2005) (onc e appellant asserts posttrial cruel and unusual punishment, the “entire record” incl udes those matters contained in his appellate plea dings). A more ex pansive review of collateral matters does not, however, equate to an expansi on of our auth ority under Ar ticle 66(c), UCMJ and does not permit us to augment the record of trial in our evaluation of the providence of an ap pellant’s pleas.

This principle was demonstrated in United States v. Gonzalez , 60 M.J. 572, 574-75 (Army Ct. Crim . App. 2004). In Gonzalez

, we considered materials contained in allied papers at tached to the transcript of proceedings, bu t not admitted into evidence, to determine the collateral is sue of whether the appe llant in that case
received effective assistance of counsel. 10

Analysis

Appellant now seeks to use evidence, which at the very least was available to
him at trial — had he exercise d the due diligence necessary to obtain it — to directly
attack the factua l basis of his plea of guilty to la rceny of military property. If appellant wished to challenge the governm ent’s liability for th e charges incurred through his misuse of his gove rnment travel card, the time to do so was at trial. Appellant did not do so, bu t instead conceded the matter at trial during the providence inquiry.

We see no justification to “allow appellant to throw a penalty flag and prevail
after he has admitted on the re cord to each element of the charged offenses . . . .”
United States v. Russell , 50 M.J. 99, 100 (C.A.A.F. 1 999). As a re sult, we will follow our superior Court’s guidance in Davenport and confine our evaluation of

10 In Gonzalez , after examining the alli ed papers to resolve the collateral issue of
effectiveness of coun sel, we determined, as with our determination in the case sub judice , that appellant’s trial defense counsel had not informed the military judge of
all the relevant facts and th us advised his client to plead guilty ba sed upon an
inaccurate factual predicate. In Gonzalez , we found the appell ant improvident to missing movement because the m ilitary judge “failed to elicit from appellant factual admissions [on th e record, i.e. during providence] to support a finding that appellant was neglectful in missi ng his scheduled flight.” Gonzalez at 573. See also United States v. Harding , 61 M.J. 526 (Army Ct. Crim. Ap p. 2005) (government cannot use sentencing testimony to support the providenc e of a guilty plea). In contrast, as discussed below, in the case sub judice , the military judge did elicit su fficient factual admissions to suppor t a finding of guilty.STOKES – ARMY 20041348

9 appellant’s guilty pleas to the evidence co ntained in the “entire re cord” consisting of the record of trial pr oceeding and exhibits. Doing so promotes judicial economy and brings finality to the appellate process. It also ensures that, except for those rare circumstances when truly new evidence come s to light, an appellant is not permitted
to use the benefit of hindsi ght to undermine tactical de cisions reasonably made at
trial. 11

While affirming a guilty plea based upon an objectivel y false factual predicate may appear facially unfair , an accused’s right to fundamental due process is nevertheless preserved. For example, where an accused is deprived of effective
assistance of counse l, he is not necess arily without remedy. In a sufficiently aggravated case, he might merit appellat e relief, not because the “erroneous” plea was improvident, but because the case amounted to a miscarriag e of justice so grave as to deny him the basic ri ght to counsel guaranteed by the Sixth Amendment. In such a case, this court would not be with out authority to set aside a conviction on
the basis of the collateral issu e of ineffective assistance of c ounsel. It is this issue, not directly raised by appell ant, but implicated nonethel ess, to which we now turn.

II. Ineffective Assistance of Counsel

Law

We review de novo issues of ineffective assistance of counsel u nder the twopronged analysis set forth in United States v. Strickland , 466 U.S. 66 8, 689 (1984),
which is:

11 Had we considered the actual contracts in this case in dete rmining the factual sufficiency of the appellant’s pleas of guilty, we would have accepted the government’s concession that, pursuant to the terms of the contracts, the government would not be liable for appe llant’s charges. As a re sult, we would have found appellant’s plea to larceny of military property impr ovident and substituted the
words “Bank of America property” for the words “military property” in Specification 3 of Charge II. See generally United States v. Epps , 25 M.J. 319, 323 (C.M.A. 1987) (holdi ng that we may “uphold a conv iction when the providence inquiry clearly establishes gu ilt of an offense different from but closely related to the crime to which the accused has pleaded guilty.”). For the reasons discussed in our analysis of counsel’s performance, we do not believe that the nature of the property in Specification 3 of Charge II had any impact on appellant’s sentence or that appellant suffered a ny prejudice. Reassessing the sentence applying the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), we would have
affirmed the sentence.STOKES – ARMY 20041348

10 (1) a deficiency in counsel's pe rformance that is so serious
that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; and (2) that the deficient performance prejud iced the defense through errors so serious as to deprive the defendant of a fair trial,
a trial whose resu lt is reliable.

United States v. Perez , 64 M.J. 239, 243 (C.A.A.F. 2 006) (internal qu otations and citations omitted). Thus, not only must we find defense co unsel’s performance “unreasonable under the prevailing professi onal norms,” but we mu st also find, but for his performance, the resu lts of appellant’s court- martial would have been
different. Id.

Analysis

Under the first prong of the Strickland analysis, we find the defense counsel
fell below the standard of a reasonable attorney. Ordi narily defense counsel are “presumed to be competent” and to have “conducted reasonable investigations into
the existence of defenses.” United States v. Shaw , 64 M.J. 460
, 463 (C.A.A.F. 2007). The facts in this case, howe ver, point to the contrar y. Either defense counsel
failed to research the issue of government liabilit y under the existing contract between the Department of De fense and Bank of America or he allowed his client to plead guilty to larceny of mi litary property, unde r the theory that the government would ultimately be liable fo r his client’s misuse of the government travel card, knowing this information, give n under oath, to be untrue. Neither of these options provides a valid tactical re ason for advising his cl ient to plead guilty. See generally
United States v. Dobrava , 64 M.J. 503 (Army Ct. Crim . App. 2006) (d iscussing the limitations on tactical decisions).

Under the second prong of the Strickland analysis, however, we do not find prejudice. Appellant was convicted of several offenses to incl ude stealing over $7,500.00 from the chaplains’ fund, stealing over $1,600 .00 using his government travel card, forgery, and wr ongfully appropriating anothe r soldier’s vehicle to aid him in going AWOL for approximately five m onths. The error in this case went to the identity of the victim in one specificati on and did not go to whether appellant, in fact, committed lar ceny or to the amount st olen. In other words, the gravemen of the
offense retained its essential character.

Moreover, appellant entered into a very favorable pretrial agreement with the convening authority that limited his maximum punishme nt to that allowed by a special court-martial, whic h included twelve months c onfinement, a bad-counduct discharge, forfeiture of two thirds pay per month for twelve months, a nd reduction to Private E1. The military judg e, however, only sentenced appellant to a bad-conductSTOKES – ARMY 20041348

11 discharge, eight months confinement and reduction to Private E1. To conclude that the convening authority woul d have reduced appellant’s sentence or granted other clemency based on the victim in question being Bank of Americ a as opposed to the military defies common sens e. Although the maximum pe rmissible confinement for larceny of military property is twice that of non-military proper ty, it is clear from the pretrial agreement and referral to a sp ecial court-martial, as well as from the sentence adjudged and approved, that this difference had no ma terial effect on the outcome of the case. Appell ant was not prejudic ed by a mischaracterization of the property. We determine, therefore, that appellant was not denied effective
assistance of counsel.

CONCLUSION

The findings of guilty and the sentence are affirmed. To the extent appellant has not already received th e confinement credit awarde d by the mili tary judge, appellant will be credited with tw o days of confin ement credit.

Senior Judge OLMSCHEID and Judge KIRBY concur.

MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: