## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, HERRING, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Private E-1 JASMINE S. HERCULES United States Army, Appellant

ARMY 20150197

Headquarters, United States Army Cyber Center of Excellence (Provisional)

and Fort Gordon Edye U. Moran, Military Judge

Colonel Scott F. Y oung, Staff Judge Advo cate (pretrial a nd recommendation)

Lieutenant Colonel John A. Hamner II, Staff Judge A dvocate (addendum)

For Appellant: Colone l Mary J. Bradley, JA; Major Christopher D. Coleman, JA; Captain Jennifer K. Beer man, JA (on brief).

For Appellee: Li eutenant Colonel A.G. Courie III , JA; Major John K. Choike, JA; Captain John Gardella, JA (on brief).

26 July 2016

---------------------------------- MEMORANDUM OPINION

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge:

A military judge, sitting as special court-martia l, convicte d appellant, pursuant to he r plea, of one specificat ion of desertion in vi olation of Article 85, Uniform Code of Military Ju stice, 10 U.S.C. § 885 (2012) [hereina fter UCMJ]. The military judge sentenced appellant to be discharged with a bad-conduct discharge

and to be confined for five months. The military judg e credited appellant with seventy days of pre-trial confinement credit. 1 The conveni ng authority approved the sentence as adjudged, but instead should have approv ed only so much of the

1 At trial, the military ju dge ordered that appellant receive seventy days of

(continued...)HERCULES—ARMY 20150197

2 sentence to confinement as provided for 15 0 days based on the te rms of the pretrial

agreement.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises two assignments of error, both of which merit discussion and one of which

merits relief.

BACKGROUND

Appellant pled guilty to a three-year desertion term inated by ap prehension. During the colloquy, the military judge accurately defi ned the elements of desertion and explained them to appella nt. Appellant stated she understood the elements and had no question s.

After the elemental explanation, the mil itary judge asked ap pellant what made

her decide to leave her uni t. Appellan t responded:

I had a meeting with my first sergeant and ca ptain and we were talking about how I wasn’t getti ng paid and I was getting evicted from my place and they laughed and told me if I needed money that I should work, so I decided to

leave

. . .

(emphasis added.).

(...continued) confinement credit, which is corr ectly entered in the report of the result of trial. The staff judge advocate’s recommenda tion (SJAR) merely states that the accused was in pretrial confinement for seventy days, but does not a dvise crediting appellant with

confinement credit. Both the SJAR and the adden dum recommend the convening authority “approve th e findings and sentence as adjudged” without referencing the confinement credit. The convening author ity’s action and the promulgating order

also failed to include this credit. See Army Reg. 27-10, Lega l Services: Military Justice, para. 5-32.a. (3 Oc t. 2011) (requiring a conven ing authority to “show in [the] initial action all credits . . . 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). Appellant did no t assign this failure as error or raise the matter personally pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). We will direct a co rrection in the promulgation order to reflect the proper credit. Additionally, to th e extent appellant has not al ready received this credit, appellant will be credited with se venty days of confinement credit.HERCULES—ARMY 20150197

3 Appellant explained the meeting wi th her first sergeant and company

commander occurred at their beckoning after a pr evious period of AWOL and after

her recent discha rge from an inpatient mental heal th facility. Appellant explained she was not getting paid because of punishm ent she previously re ceived for her other

unauthorized absences. When the military judge asked when the meet ing with her commander and first sergeant occurred, appellant indicated in January. The military judge asked again “what made you leave?” Appellant responde d “I was told to leave.” In response, the military judge asked “Did anyone in your unit give you authority to leave?” Appellant responded in the negative.

The judge continued the colloquy with appellant and later asked appellant if either her first sergeant or company comman der gave her authority to be absent from her unit at any time. She responded no. The milita ry judge then asked if anyone else in her unit gave her auth ority to leave–and appellant responded no . (emphasis added.).

As part of the pretrial ag reement, appellant entered into a stipulation of fact in

which she admitted all the elements of desertion to include leaving without authority. She also disclaimed a ny legal defense or justification for her desertion.

Prior to her court-martial, a sanity board convened purs uant to Rule for Courts-Martial [R.C.M.] 706 and determined appellant was: 1) mentally responsible at the time of the charged offense; and 2) not currently suffering from a severe mental disease or defect precluding her from having the ability to understand the charges or cooperate inte lligently in her defense. 2

The pretrial agreement st ates “[m]y defense counse l has advised me of the meaning and effect of my guilty plea, and I understand the meaning and effect

thereof.”

The military judge accepted appellant’s plea to desertion terminated by apprehension as provident. Appellant now complains th e military judge abused her discretion by failing to re solve an inconsistency crea ted during the providence inquiry when appellant stated “I was told to leave.”

LAW AND DISCUSSION

We review a military judge’s decision to accept a plea of gu ilty “for an abuse of discretion and questions of law arising from the gu ilty plea de novo.” United

2 In appellant’s sentencing case, as mitigati on evidence her tr eating physician testified appellant suffered from severe depression, post-traum atic stress disorder due to childhood abuse, and borderline personality tra its. These diagnoses, however,

did not rise to the level of a defense.HERCULES—ARMY 20150197

4 States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008 ). “[T]he abuse of discretion

standard of review re cognizes that a judg e has a range of choi ces and will not be reversed so long as the decision remains within that range.” United States v. Gore

, 60 M.J. 178, 187 (C.A .A.F. 2004) (citing United States v. Wallace , 296 U.S. App. D.C. 93, 964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992)). A guilty plea will be set aside on appeal only if an appellant can show a subs tantial basis in law or fact to question the plea. Id . (citing United States v. Prater , 32 M.J. 433, 436 (C .M.A. 1991)). The court applies this “substantial basis” test by determining whether the record raises a substantial question about the factua l basis of appellant’s guilty plea or the law underpinning the plea. Id .; see also UCMJ art. 45(a); R.C.M. 910(e).

A providence inquir y into a guilty plea must establish that the accused

believes and admits he or she is guilty of the offe nse and that the factual circumstances admitted by the accused ob jectively support the guilty plea. United

States v. Garcia , 44 M.J. 496, 497-9 8 (C.A.A.F. 1996); United States v. Davenport

, 9 M.J. 364, 367 (C.M.A. 1 980); UCMJ art. 45(a); R.C.M. 910(e). “If an accused sets up matter inconsistent with the pl ea at any time during the proceeding, the military judge must either resolve the appa rent inconsistency or reject the plea.”

United States v. Hines , 73 M.J. 119, 124 (C.A .A.F. 2014) (quoting United States v.

Goodman , 70 M.J. 396, 399 (C.A.A .F. 2011)) (internal quot ation marks omitted); see also UCMJ art. 45(a). “A m ilitary judge abuses his disc retion if he neglects or chooses not to resolve an inconsistency or reject the inconsistent or irregular pleading.” United States v. Schell , 72 M.J. 339, 345 (C .A.A.F. 2013)(quoting United States v. Hayes , 70 M.J. 454, 457-58 (C.A.A.F. 2012)). The military judge need only reject the plea when the accused “persists in hi s statements” that cause the inconsistency. United States v. Thompson, 21 U.S.C.M.A. 526, 527, 45 C.M.R. 300, 301 (1972). Where the possibility of a defense exists, a mi litary judge should secure satisfactory disclaimers by the accused of this defense. Prater , 32 M.J. at 436 (citing United States v. Jemmings , 1 M.J. 414, 418 (C.M.A. 1976)).

“In determining on appeal whether there is a substantial inconsistency, this [c]ourt considers the ‘full context’ of the plea inqu iry, including [a]ppellant’s stipulation of fact.” Goodman , 70 M.J. at 399 (quoting United States v. Smauley , 42 M.J. 449, 452 (C.A.A.F. 1995 )). “This court must find a ‘substantial conflict between the plea and the accu sed’s statements or other evidence’ in order to set aside a guilty plea. The ‘m ere possibility’ of a conf lict is not sufficient.” Hines , 73 M.J. at 124 (quoting United States v. Watson , 71 M.J. 54, 58 (C.A.A.F. 2012)).

After thoroughly review ing the record , we hold that th e military judge properly, and repeatedly , asked appellant, if anyone authorized her to leave during the period of he r desertion. While appe llant raised the possibil ity of a defense, she did not persist in this statement; instead she disclaimed having authorization to be absent. During the colloquy, appellant indicated four times that no one in a position of authority authorized her to leave duri ng the period of her desertion. The firstHERCULES—ARMY 20150197

5 time the military judge as ked her why she left, she ve ry clearly indicated she “decided” to leave. Recognizing appellant’ s next statement “I was told to leave,” the military judge immediately addressed th e potentially inconsis tent statement by asking appellant if anyone in her unit authoriz ed her to leave, wh ich she answered in the negative three more times during th e rest of the colloq uy. We conclude appellant did not set up a matter inconsistent with her plea that would give rise to a

substantial basis in law or fact to question her plea. Having examined the “full context” of the plea inquiry, to in clude appellant’s respons es during th e entire colloquy, and the st ipulation of fact, and appellant’s sentencing case, we hold the military judge reconciled any possible substantial inconsistency presented by appellant’s comment that she was told to leave. See Goodman , 70 M.J. at 399; UCMJ art. 45(a). Any incons istency in the inqu iry was not “subst antial,” and was adequately resolved by appe llant’s subsequent statemen ts that no one gave her authority to leave.

As the appellant has shown no substantial basis in law or fact to question her pleas of guilty, we co nclude that the military judge did not abus e her discretion in accepting appellant’s plea. See Inabinette , 66 M.J. at 322.

CONCLUSION

The findings of guilty are AFFIRMED. After consid ering the entire record, the court AFFIRMS only so much of the sentence as provide s for a bad-conduct discharge and 150 days of confinement. To the ex tent appellant has not already received this credit, appell ant will be credited with se venty days of confinement credit. All rights, pr ivileges, and property, of which appellant has been deprived by virtue of that portion of the sentence set as ide by this decision are ordered restored.

See UCMJ arts. 58b(c) and 75(a).

Judge HERRING concurs.

PENLAND, Judge, dissenting:

Appellant asserts a substantial basis in law and fact exists to question the providence of her guilt y plea with respect to whether her absenc e was without proper authority. I ag ree, consid ering appellant’s st atement to the milita ry judge, “I was

told to leave.”

Appellant was convicted of desertion, which be gan 19 Janu ary 2012 and ended with her appreh ension on 1 January 2015. After correctly advising appellant of the elements of the crime, the milita ry judge initiated th e following exchange:HERCULES—ARMY 20150197

6 MJ: At this time I want you to tell me why you’re guilty

of the offense listed in the specification--tell me what happened.

ACC: [Inaudible].

MJ: Private Hercules, if you wi ll speak up a l ittle bit. So you said you -- when you left Fort Go rdon, when was that?

ACC: On January 19th, 2012.

MJ: And what unit were y ou assigned to on that day?

ACC: Alpha Company, 67th ESB.

MJ: How long had you b een in the military?

ACC: [Inaudible].

MJ: So were you on active duty on the 19th January of

2012?

ACC: Yes, Your Honor.

MJ: Where did you do your basic training?

ACC: Fort Jackson.

MJ: And were you on your AIT training in Ja nuary of 2012, or had you completed AIT?

ACC: I had completed AIT.

MJ: So your first -- your basic training was at Fort Jackson and then where did you go right after that?

ACC: Fort Gordon.

MJ: Okay. What is your MOS?

ACC: 25 Quebec.

MJ: Which is what?HERCULES—ARMY 20150197

7 ACC: Multichannel Transm ission Systems OperatorMaintainer.

MJ: What made you decide to leave your unit on the 19th of January 2012?

ACC: I had had a meeting wi th my first sergeant and captain and we were talki ng about how I wasn’t getting paid and I was getting evicted from my place and they laughed and told me if I need ed money that I should work,

so I decided to leave and . . .

MJ: So you had a me eting with your firs t sergeant and the company commander?

ACC: Yes, Your Honor.

MJ: And you were sa ying you hadn’t gott en paid. Why had you not gotten paid?

ACC: I believe it was becaus e I had too many Article 15s.

MJ: Okay, so you -- from lo oking over the Article 15 it looks like you had -- this was the Field Grade Article 15 from 27 July 2011?

ACC: I had two.

MJ: So you were n’t getting paid?

ACC: No, Your Honor.

MJ: Then what ha ppened; you got evic ted you said -- you were living off post?

ACC: Yes, Your Honor.

MJ: Did you ask for the meeting in the open door policy or did they call you in?

ACC: No, Your Honor, they called me in.

MJ: And why did th ey call you in?HERCULES—ARMY 20150197

8 ACC: I believe it was proper procedure because I had just gotten discharged from Eisenhower.

DC: Your Honor, if I may have one moment.

MJ: Yes.

[Defense counsel confer red with the accused.]

MJ: Private Hercules, from lo oking at the Stipulation of

Fact it looks like you had gone AWOL -- you had left your unit back in 9 September 2011.

ACC: Yes, Your Honor.

MJ: So was the meeting with the first sergeant after you came back from that period of time of being AWOL?

ACC: Yes, Your Honor.

MJ: When was that meeting?

ACC: [Inaudible].

MJ: In January?

ACC: Yes, Your Honor.

MJ: And what ma de you leave?

ACC: I was told to leave.

MJ: Did anyone in y our unit give you aut hority to be absent from the military?

ACC: No, Your Honor.

MJ: Where did you go?

ACC: To Columbia, South Carolina.

MJ: So you went to Columbia and -- did you ever make any attempt to return back to your unit at Fort Gordon?HERCULES—ARMY 20150197

9 ACC: No, Your Honor.

MJ: So you were in Columbia for the entire time?

ACC: Yes, Your Honor.

MJ: Up until 1 Ja nuary -- or about 1 January 2015, so almost three years you were in Columbia?

ACC: Yes, Your Honor.

MJ: Did you ever return -- di d you go try to return to your unit at any of that time -- during that thr ee year period?

ACC: No, Your Honor.

MJ: And what were you doing in Columbia? Where were you working?

ACC: At an apartment comp lex as a maintenance tech.

MJ: So when you le ft when did you decide that you -- you stated you wanted to stay aw ay permanently from your unit?

ACC: Yes, Your Honor.

MJ: When did y ou decide that?

ACC: When I found a job.

MJ: How long did it take you to find a job?

ACC: Three months.

MJ: So up until that time you weren’t sure if you were going to go back or not to your unit?

ACC: I had not planned to.

MJ: When you left did you take everything with you?

ACC: I didn’t ha ve anything...

MJ: So there was really nothing to take?HERCULES—ARMY 20150197

10 ACC: No, Your Honor.

MJ: Did you take y our uniforms or did you leave those

behind?

ACC: They had already colle cted all of my military

uniforms.

MJ: Before you left?

ACC: Yes.

MJ: And why di d they do that?

ACC: It was because I had a lot of FTRs and they didn’t

want me to have to pay for it.

MJ: They didn’t want you to have to pay for it?

ACC: My CIF.

MJ: Okay, so they had taken your CIF?

ACC: Yes, Your Honor.

MJ: But did you have uniforms?

ACC: Yes, Your Honor.

MJ: So you had uniforms bu t your CIF issu ed equipment they had already ta ken away from you?

ACC: Yes, Your Honor.

MJ: And were you living off post at that time?

ACC: Yes, Your Honor.

MJ: And you -- who did you report to directly when you were at your unit at Fort Gordon in 2012 in January?

ACC: I reported to Captain [W] and Fi rst Sergeant [S].HERCULES—ARMY 20150197

11 MJ: First Sergeant who?

ACC: [S].

MJ: And Captain ----

ACC: [W].

MJ: [W]. Did either First Sergeant [S] or Captain [W] give you authority to be absent from th e unit at anytime?
ACC: No, Your Honor.

MJ: Did anyone else in the unit give you auth ority to have

leave?

ACC: No, Your Honor. 3

(emphasis added.).

I fully agree with my colleagues’ descript ion of the legal prin ciples involved.

See also United States v. Phillippe , 63 M.J. 307, 3 09 (C.A.A.F. 2006). However, I respectfully disagree with th eir analysis an d conclusion.

The military judge asked appellant five questions bearing on whether her

absence was authorized. 4 The first was open -ended and prompted appellant to say,

inter alia , “I decided to leave and. . .” The military judge interjected and clarified appellant was referring to a meeting with her company co mmander and first sergeant. After asce rtaining the meeting’s circumstan ces, the military judge asked followed up with a second open-ended question, “[W]hat made you leave?” Appellant said, “I was told to leave.” The remaining three qu estions regarding any authority for appellan t’s absence were certainly not inappropriate, but they were pointed and, depending on one’s view, l eading. Appellant di d not reconcile the inconsistency between her answers, and the military judge did not ask her to do so.

3 A stipulation of fact included the foll owing: “On or abou t 19 Januar y 2012, the accused again departed her unit without au thority from a person who could give her such authority. At the time the accused departed Fort Gordon, she knew she did not have permission to depart Fort Gordon an d remain away.”

4 None of the five question s or appellant’s answers pr ecisely referred to the time period charged in this case; however, it seems reasonab le to conclude the military judge and appellant intend ed to refer thereto.HERCULES—ARMY 20150197

12 Appellant indeed inculpated herself multiple times during the providence inquiry—not counting the admissions contained in th e stipulation of fact—but she also plainly exculpated hersel f once. Military judges corr ectly and regula rly instruct

members that the number of witnesses called should not be the guide in evaluating testimony. This case illustrates a co rollary—the number of times appellant inculpated herself cannot pe r se override the single time she indicated she was told

to leave her unit. 5

Appellant’s exculpation may have been false, misspoken, or the result of confusion. And to be sure, it was contro verted by her three brief answers to the contrary. Nonetheless, it was inconsistent with her plea of guilty and, in my view,

created a substantial basis in law and fact, which the military judge did not resolve, to question appellan t’s providence.

Military trial judges freque ntly confront difficult pr ovidence inquiries. I do not regard that task lightly, particular ly where, as here, an accused soldier 6 and counsel for both sides do less than required to facilitate a legally adequate exchange. While recognizing that cha llenge and the seriou sness of the charged misconduct, I respectfully dissent.

FOR THE COURT:

MALCOLM H. SQUIRES JR.

Clerk of Court

5 Under the circumstances here , the sequence of appellant ’s conflicting statements does not seem probative; I cannot discount appellant’s exculpatory answer only

because it was not her last.

6 Appellant was diagnosed with multiple beha vioral health illnesses, and they played a significant role in her mi sconduct. A sanity board f ound her mentally responsible and competent to stand trial; appellant spec ifically disclaimed mental responsibility and competency issues in th e stipulation of fact; and, the military judg e reasonably

concluded that no mental re sponsibility or capacity issues were raised. I do not quarrel with these determinat ions, but I do harbor concer n that appell ant’s medical condition may have contributed to her incons istent statements to the military judge. MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: