UNITED STATES ARMY COURT 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 Language Center and Presidio of Monterey 

Robert Smith, Military Judge 

Colonel John L. Clifton, Staff Judge Advocate 

For Appellant: Colonel John T. Phelps II, JA; Lieutenant Colonel 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; Lieutenant 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 $500.00, larceny of private property valued at over $500.00, 

larceny of military property valued at over $500.00, and forgery, in violation of 

Articles 86, 121, and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 921, 

and 923 [hereinafter UCMJ]. The convening authority approved the adjudged 

sentence to a bad-conduct discharge, confinement for eight months, and reduction to 

Private E1, and deferred automatic forfeiture of pay until action. 

 

1

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

2

We have considered the record 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 issue and the government’s 

responses thereto. We agree with appellant’s second assignment of error, that he 

was not properly credited with two days of confinement credit awarded by the 

military judge for time spent in pretrial civilian confinement 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 assertions and the government’s concession, based upon 

information outside the record of trial, that appellant was not provident to his plea of 

guilty to Specification 3 of Charge II (larceny of military property). Furthermore, 

although not raised by appellant, we are left with the conclusion that defense 

counsel misadvised appellant to plead guilty to larceny of military property by 

misusing his government travel 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 assistance of counsel because, 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 substantial 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 the property in question was 

military property (because “once the charge was on the card and [he] wasn’t going to 

pay it back . . . the government would be responsible to pay [its] credit card back”) 

was a legal conclusion insufficient to provide the requisite factual basis to support 

his plea. 3 

 

2

 Although awarded by the military judge after sentencing, the convening authority’s 

initial action failed to include this credit. See Rule for Courts-Martial 1107(f)(4)(F); 

Army Reg. 27-10, Legal Services: 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 . . . regardless of the source of the credit . . . or for any . . . 

reason specified by the judge”); United States v. Delvalle, 55 M.J. 648, 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 the property in question was 

military property because the government was liable for his purchases. Had this 

been the extent of the military judge’s inquiry, we would be inclined to agree with 
STOKES – ARMY 20041348 

3

FACTS AND PROCEDURAL BACKGROUND 

Appellant, a chaplains’ assistant at the Presidio of Monterey, served as the 

custodian of the chaplains’ fund. Over a period of several 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 authority, and by stealing cash 

offerings. Also, over a period of several months he wrongfully used his government 

travel card to steal over $1,600.00. Following commission of these offenses, 

appellant went absent without leave (AWOL) for approximately five months. To 

facilitate his flight from his Army unit, he wrongfully appropriated 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 using his government 

travel card) was improvident because, contrary to his testimony during the Care

inquiry,4

 the property was not, in fact, military property because the government was 

not liable for appellant’s charges to his government 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 appellate brief to support 

his assertion that the property was not military property. This evidence was not 

introduced at trial, although available at the time. Moreover, the evidence was not 

determinative as to whether the property in question was military property, as there 

was no evidence presented either at trial or in the appellate briefs indicating that the 

policies contained in these documents were ever incorporated into the relevant 

contracts at the time of the offenses. Neither appellant nor the government 

 

the government. Liability is a legal concept, the implications of which we would not 

assume that a lay person fully appreciated. See United States v. Redlinski, 58 M.J. 

117, 119 (C.A.A.F. 2003) (“Although [a]ppellant is not entitled to receive a 

hornbook review of the [complex inchoate offense of attempt], the record must 

objectively reflect that [a]ppellant understood that his conduct, in order to be 

criminal, needed to go beyond preparatory steps and be a direct movement toward 

the commission of the intended offense.”). Appellant need not have a law school 

education, however, to appreciate the meaning of his own assertion that “once the 

charge was on the card and [he] 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 facts needed to make that conclusion. 

 

4 United States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247 (1969). 
STOKES – ARMY 20041348 

4

submitted for this court’s consideration the evidence that is determinative on the 

issue — the contracts between appellant and Bank of America5

 and between the 

Department of Defense and Bank of America6

 in effect at the time of the offenses. 

During the providence inquiry, appellant admitted, under oath, that the 

property in question was military property because “once the charge 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 consequence, following a Rule for Courts-Martial 

[hereinafter R.C.M.] 802 conference with counsel, the military 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 two documents as appellant, conceded in 

its appellate brief that the government would not have been liable for appellant’s 

charges to his government travel card and, therefore, the property was not military 

property. The government urged this court to amend Specification 3 of Charge II to 

substitute the words “Bank of America property” for the words “military property.” 

 

 After our initial review of the case under Article 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 sole purpose of properly analyzing the potential collateral issue 

of ineffective assistance of counsel, we ordered government appellate counsel to file 

the contract in effect at the 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 would have explained the extent of the government’s liability for 

failure of Department of Defense cardholders to pay their credit card debts. 
STOKES – ARMY 20041348 

5

DISCUSSION 

I. Scope of Review on Appeal 

Law 

Non-collateral Issues 

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

affirm[ing] only such findings of guilty 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 controverted questions of fact, 

recognizing that the trial court saw and heard the 

witnesses. 

(Emphasis added.) Our superior court has characterized our authority 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-pound gorilla when it comes to 

their ability to protect an accused.” United States v. Parker, 36 M.J. 269, 271 

(C.M.A. 1993). As Judge Wiss noted in his concurring opinion, 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, whether 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-pound gorilla” is not 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 (1973)). 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, erroneously 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 officials after trial, recommending 
STOKES – ARMY 20041348 

6

developed at trial. For, “[u]ndeniably, evidence not presented 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 copy of the docket entries prepared by the 

district clerk.”). This principle has been reiterated in a long line of cases and, as 

evidenced by our superior court’s decision this term in United States v. Beatty, 64 

M.J. 456 (C.A.A.F. 2007), remains in full force today.8

 The Beatty Court stated, “In 

 

reduction in the length of confinement. It answered this question in the negative and 

affirmed the service court’s decision. Moreover, Healy held: 

We infer . . . that Congress never intended that a [service 

court] would be under any duty to receive additional 

information on sentencing after the convening authority 

had acted. . . . 

. . .The point is that the [service court] has no duty to 

receive information or data that purports to be relevant 

only to clemency and that, after 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 (emphasis added). 

8 See also United States v. Roderick, 62 M.J. 425, 431 (C.A.A.F. 2006) (holding a 

service court “is constrained by the bounds of the record from the court below when 

reviewing an appellant’s guilt or innocence for factual or legal sufficiency.”); United 

States v. Holt, 58 M.J. 227, 232 (C.A.A.F. 2003) (“Article 66(c)[, UCMJ,] limits the 

[service courts] ‘to a review of the facts, testimony, and evidence presented at trial, 

and precludes a [service court] from considering ‘extra-record’ matters when making 

determinations of guilt, innocence, and sentence appropriateness.’” (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 appeals ‘may not resurrect excluded evidence’ or consider 

evidence in a manner inconsistent with the limited purpose 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 refusing 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 service appellate court has ‘factfinding power on collateral 

claims’ but . . . it is not authorized ‘to determine innocence on the basis not 
STOKES – ARMY 20041348 

7

a succession of early cases, we established that the review of findings — of guilt or 

innocence — was limited to the evidence presented at trial.” Id. at 458 (citing Holt, 

58 M.J. at 232; Bethea, 22 U.S.C.M.A. at 224-25, 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 (Army Ct. Crim. App. 1997). 

“[E]vidence from outside the record will not 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 respect to collateral issues, such as 

post-trial confinement, prosecutorial misconduct, unlawful 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 issues requires us to include within the meaning of “the 

entire record” additional materials that may be submitted with appellate pleadings, 

attached to allied documents, or derived from other sources. This is so because, by 

their very nature, collateral issues deal with matters that may not be readily apparent 

 

presented at trial.’”) (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 included in the “entire record.” Rule for Courts-Martial 1210(f) 

allows for a new trial when there is new evidence discovered after trial, which would 

not have been discovered through the exercise of due diligence prior to trial and 

which would probably produce a substantially better result for the accused. See also 

United States v. Garcia, 19 F.3d 1123, 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 the basis of 

newly discovered evidence “when the petitioner was found guilty of the relevant 

offense pursuant to a guilty plea.” R.C.M. 1210(a). As appellant pled guilty to 

larceny of military property, R.C.M. 1210(a) precludes him from submitting a 

petition for new trial based on newly discovered evidence. 
STOKES – ARMY 20041348 

8

at trial and, therefore, might 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) (once appellant asserts posttrial cruel and unusual punishment, the “entire record” includes those matters 

contained in his appellate pleadings). A more expansive review of collateral matters 

does not, however, equate to an expansion of our authority under Article 66(c), 

UCMJ and does not permit us to augment the record of trial in our evaluation of the 

providence of an appellant’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 attached to the transcript of proceedings, but not admitted 

into evidence, to determine the collateral issue of whether the appellant 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 exercised the due diligence necessary to obtain it — to directly 

attack the factual basis of his plea of guilty to larceny of military property. If 

appellant wished to challenge the government’s liability for the charges incurred 

through his misuse of his government travel card, the time to do so was at trial. 

Appellant did not do so, but 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 record to each element of the charged offenses . . . .” 

United States v. Russell, 50 M.J. 99, 100 (C.A.A.F. 1999). As a result, we will 

follow our superior Court’s guidance in Davenport and confine our evaluation of 

 

10 In Gonzalez, after examining the allied papers to resolve the collateral issue of 

effectiveness of counsel, 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 thus advised his client to plead guilty based upon an 

inaccurate factual predicate. In Gonzalez, we found the appellant improvident to 

missing movement because the military judge “failed to elicit from appellant factual 

admissions [on the record, i.e. during providence] to support a finding that appellant 

was neglectful in missing his scheduled flight.” Gonzalez at 573. See also United 

States v. Harding, 61 M.J. 526 (Army Ct. Crim. App. 2005) (government cannot use 

sentencing testimony to support the providence of a guilty plea). In contrast, as 

discussed below, in the case sub judice, the military judge did elicit sufficient 

factual admissions to support a finding of guilty. 
STOKES – ARMY 20041348 

9

appellant’s guilty pleas to the evidence contained in the “entire record” consisting of 

the record of trial proceeding 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 comes to light, an appellant is not permitted 

to use the benefit of hindsight to undermine tactical decisions reasonably made at 

trial.11

While affirming a guilty plea based upon an objectively 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 counsel, he is not necessarily without remedy. In a sufficiently 

aggravated case, he might merit appellate relief, not because the “erroneous” plea 

was improvident, but because the case amounted to a miscarriage of justice so grave 

as to deny him the basic right to counsel guaranteed by the Sixth Amendment. In 

such a case, this court would not be without authority to set aside a conviction on 

the basis of the collateral issue of ineffective assistance of counsel. It is this issue, 

not directly raised by appellant, but implicated nonetheless, to which we now turn. 

II. Ineffective Assistance of Counsel 

Law 

We review de novo issues of ineffective assistance of counsel under the twopronged analysis set forth in United States v. Strickland, 466 U.S. 668, 689 (1984), 

which is: 

 

11 Had we considered the actual contracts in this case in determining 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 appellant’s charges. As a result, we would have found 

appellant’s plea to larceny of military property improvident 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) (holding that we may “uphold a conviction when the providence 

inquiry clearly establishes guilt 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 any 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 performance 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 prejudiced the defense through 

errors so serious as to deprive the defendant of a fair trial, 

a trial whose result is reliable. 

United States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006) (internal quotations and 

citations omitted). Thus, not only must we find defense counsel’s performance 

“unreasonable under the prevailing professional norms,” but we must also find, but 

for his performance, the results 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. Ordinarily 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, however, point to the contrary. Either defense counsel 

failed to research the issue of government liability under the existing contract 

between the Department of Defense and Bank of America or he allowed his client to 

plead guilty to larceny of military property, under the theory that the government 

would ultimately be liable for his client’s misuse of the government travel card, 

knowing this information, given under oath, to be untrue. Neither of these options 

provides a valid tactical reason for advising his client to plead guilty. See generally 

United States v. Dobrava, 64 M.J. 503 (Army Ct. Crim. App. 2006) (discussing 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 include stealing over 

$7,500.00 from the chaplains’ fund, stealing over $1,600.00 using his government 

travel card, forgery, and wrongfully appropriating another soldier’s vehicle to aid 

him in going AWOL for approximately five months. The error in this case went to 

the identity of the victim in one specification and did not go to whether appellant, in 

fact, committed larceny or to the amount stolen. 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 punishment to that allowed by a 

special court-martial, which included twelve months confinement, a bad-counduct 

discharge, forfeiture of two thirds pay per month for twelve months, and reduction to 

Private E1. The military judge, however, only sentenced appellant to a bad-conduct 
STOKES – ARMY 20041348 

11

discharge, eight months confinement and reduction to Private E1. To conclude that 

the convening authority would have reduced appellant’s sentence or granted other 

clemency based on the victim in question being Bank of America as opposed to the 

military defies common sense. Although the maximum permissible confinement for 

larceny of military property is twice that of non-military property, it is clear from 

the pretrial agreement and referral to a special court-martial, as well as from the 

sentence adjudged and approved, that this difference had no material effect on the 

outcome of the case. Appellant was not prejudiced 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 the confinement credit awarded by the military judge, 

appellant will be credited with two days of confinement credit. 

 Senior Judge OLMSCHEID and Judge KIRBY concur. 

 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: