## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, PENLAND, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 QUINCY C. BROADEN United States Army, Appellant

ARMY 20150414

Headquarters, 25th Infantry Division

Gregory A. Gross, Military Judge
Colonel Williams D. Smoot , Staff Judge Advocate

For Appellant: Colone l Mary J. Bradley, JA; Major Christopher D. Coleman, JA (on brief and suppleme ntal brief).

For Appellee: Colonel Mark H. Sydenham, JA ; Lieutenant Colonel A. G. Courie III, JA; Major Steven J. Collins, JA; Captain Linda Chavez , JA (on brief); Lieutenant Colonel A. G. Courie III, JA; Major Scot t L. Goble, JA; Captain Linda Chavez, JA (on supplemental brief).

3 August 2016

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

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Judge:

A general court-martial composed of a military judge sitting alone convicted appellant, pursuant to his pleas, of one specificatio n of conspiracy to commit larceny, one specificati on of robbery, and on e specification of obstruction of justice, in violation of Articles 81, 122, and 134, Uniform C ode of Militar y Justice, 10 U.S.C. §§ 881, 922, 934 (2012) [hereinafter UCMJ]. Th e court-martial sentenced appellant to be discharged from the Army with a bad-conduct discharge, to be confined for fifty-four months, to forfeit all pay and allowances, and to be reduced to the grade of E-1. The m ilitary judge credit ed appellant with three days of pretrial confinement credit. The convening authority approv ed pre-trial confinement credit and the sentence except that, pursua nt to a pretrial agreement, he approved only three years of confinement.BROADEN—ARMY 20150414

2 Appellant pleaded guilty to, among othe r offenses, conspiracy to commit larceny of about $527. We specified the issue of whethe r appellant’s plea colloquy adequately established that the criminal conspiracy included an agreement that the
amount to be stolen wa s more than $500. We find it did not. We therefore affirm only the lesser included offe nse of conspiracy to commit larceny of some value.

BACKGROUND

A. The Conspiracy

As part of a pretrial agreement, the par ties stipulated to th e relevant facts in
the case.

Appellant, his girlfriend, and Privates Terrell Pr ice and Markel McNeil entered into an agreement to rob a strang er. Their plan was to have appellant’s girlfriend, Ms. Kassa ndra Melendez, dress as a prostitute on Waikiki beach and lure the victim into a place where the three soldiers would then rob him. Appellant told
the other soldiers Ms. Melendez had done th is before with some success. To carry out their plan appellant drove the quarte t towards Honolulu, st opping at a Walmart where they purchased th ree bandanas to cover the soldie rs’ faces. The three soldiers also possessed realistic look ing “airsoft” pistols to use in the robbery. They then
drove to Waikiki to find a victim.

Ms. Melendez stood on a street corner attempting to attract the attention of male passersby. Eventually she was ap proached by Mr. SO , a homeless man who
lived in a tent on Waikiki. After attracting his intere st, Ms. Melendez escorted Mr. SO to a nearby store to pu rchase condoms. As he purchased the condoms, she observed how much money he had. She then told appellant it appeared Mr. SO had “a large amount of cash on his person.” Appellant an d his two co-c onspirators
waited across the street.

The three soldiers discusse d who would lead the robbery. Appellant decided he would lead, and the others would be “in tow.” Appellant then approached Mr. SO and asked him if he had any money. Mr. SO denied having ca sh. Appell ant then initially displayed the airsoft pistol tucked in his wa istband, and subs equently took weapon out in order fri ghten Mr. SO into giving up the money. The other two soldiers then similarly displayed their ai rsoft pistols. Mr. SO was terrified, and stated that he “didn’t want to die,” and as ked “[i]f I give you al l of my money will you please leave me alone?” Mr. SO then turned over hi s entire wallet. Appellant removed the money from the wallet, a nd returned the wa llet to Mr. SO.BROADEN—ARMY 20150414

3 Appellant and his three co-c onspirators then left. Th e three soldiers headed back to appellant’s vehicl e, while Ms. Melendez walk ed in another direction. Appellant coordinated with Ms. Melend ez about where to pick her up.

Mr. SO, suspecting that Ms. Melendez was involved in the robbery, followed her. He also called the po lice. Honolulu police notice d appellant’s car matched Mr. SO’s description and pu lled appellant over after he made an illegal U-turn. A search
of the vehicle recove red the stolen cash, the airsoft pistols, and the bandanas.

Appellant told police he ha d not taken part in the r obbery, that th e pistols in his car had been in his poss ession at all times , and that he had no idea why $527 was

found hidden under the front se at of his car. Appellan t’s co-conspirators, however, were much more coopera tive with the police.

B. The Conspiracy Charge

As noted above, appe llant stipulated that he “orchestrated a conspiracy to commit robbery.” Th e surrounding facts support su ch a charge. Nonetheless, appellant was not charged with conspiracy to commit robbery. He was charged with robbery and conspiracy to commit larceny of $527.

C. The Plea Inquiry

Confusion about the conspira cy charge continued during the plea inqu iry. The military judge advise d appellant on the elements of conspiracy to commit robbery, an offense with which appell ant was not charged. Nonetheless, and consistent with the stipulation of fact, appellan t was provident to the offense.

LAW

This court will not disturb a guilty plea unless an ap pellant has demonstrated
that there is “a substantial basis” in “law or fact” for que stioning the plea. United
States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2 008). “[W]e review a military judge’s decision to accept a guilty plea fo r an abuse of discreti on and questions of law arising from the gu ilty plea de novo.” Id .; see also United States v. Murphy , 74 M.J. 302, 305 (C .A.A.F. 2015).

DISCUSSION

As an initial ma tter, appellant’s plea inquiry adequately esta blished he was guilty of conspiracy to commit larceny. Although he was advised on the elements of conspiracy to commit “robber y,” as robbery is a larceny by force or threat of force, every robbery includes within it a larcen y. UCMJ, art. 122 (“ Any person . . . who
with intent to steal takes anything of value from [a person] . . . against his will, byBROADEN—ARMY 20150414

4 means of force or violence or fear of immediate or future injury . . . is guilty of robbery . . . .”).

Thus, for example, robbery requires as an elemen t that the accused have the specific intent to permanently depr ive the owner of the property. See Manual for Courts-Martial, United States (2012 ed.)[h ereinafter MCM ] pt. IV, ¶ 47.b( 6). It is a complete defense to robbery that (in an armed carjackin g for example) the accused did not intend to permanentl y deprive the owner of the property (by abandoning the
car in an area where it was like ly to be found and returned).

However, the offenses of robbery and larce ny differ in one ke y aspect. The maximum punishment for robbery is determined without regard to the value of the property stolen. MCM pt. IV, ¶ 47.e. Fo r larceny, on the other han d, there is a tenfold increase in pu nishment if the value of the st olen property was more than $500. MCM pt. IV, ¶ 46.e(b) and (d).

Here, because appellant was advised of the elements of conspiracy to commit robbery, the military judge never explic itly elicited from a ppellant whether the criminal agreement incl uded an agreem ent to steal mo re than $500.

In United States v. Barton , 60 M.J. 62 (C.A.A.F. 2004) our supe rior court
addressed a similar issue. The accused in Barton had conspired to break into the
“Powerzone” electronics store and st eal electronics. In total, the Barton conspirators took over $10,000 worth of el ectronic equipment. The issue in that case was whether the plea inquiry adequately establis hed that conspirators had agreed to steal over $100. *

As in this case, the military judge did not discuss whether the criminal agreement included a meeting of the minds on the amount of goods to be stolen. “As a result, at no po int during the Care inquiry . . . did Appell ant admit in declaratory
fashion that he in tended to steal more than $100 in merc handise.” Id

. at 65.

Nonetheless, the Court of Appeals for the Armed Forces (CAAF) affirmed the
conviction. Id . at 66. The court focu sed on the plea inquiry “in whole” and noted that the element of value “is not a complex legal element . . . . [that] require[s] and intimate application of law to fact.” Id

. at 65.

Additionally, the CAAF noted that “[w]e ca nnot lose sight that this is a guilty plea case.” Id. They further stated that “a guilty plea case is less likely to have developed facts . . . . With the benefit of appellate hindsight, one might well identify

* The threshold fo r increased punishment was change d from $100 to $500 in 2002.

See Executive order 13262 § 5, April 11, 2002.BROADEN—ARMY 20150414

5 questions unasked or be tempted to look for the fact ual development that only a contested trial might contain.” Id. (internal quotations and citations omitted).

The CAAF’s reasoning in Barton is relevant to deciding this case. Appellant’s criminal conspiracy continued to exist af ter the initial agreement. Thus, when appellant was informed by his girlfriend th at Mr. SO had “a large amount of cash” on him, and continued with th e planned robbery, th e criminal agreement was then to steal “a large amount of cash .” Similarly, when appellan t pulled the actual $527 out of Mr. SO’s wallet, the co nspiracy continued to exis t. We risk the dangers “appellate hindsight” when we “identify questions” (e.g. wh en did the conspirators
know that the amount be ing stolen was over $500) that could have been answered in
a contested trial.

Nonetheless, we fi nd this case distinguishable from Barton for several reasons. First, Barton involved a theft of $10,000 of equipment, over the course of several nights. That is, the Barton conspirators carted away an amount of goods that was 1000% greater than the $100 threshold applic able to that case. Although not explicitly stated by the Barton court, it is clear in that ca se that as the conspirators emptied the store their conspiracy clearl y expanded to stealing more than a mere $100. The Barton court was unwilling to therefore apply an unduly te chnical review of the plea inquiry in a case where the dolla r value of the theft so greatly exceeded the $100 threshold. As even the Barton dissent admitted, “A common sense review
would lead one to th e conclusion that Appellant was unlikely to conspire to steal less than $100 from th e Powerzone. . . .” Id . at 68 (J. Erdmann dissenting).

In this case, in contrast , the $527 stolen from Mr. SO was just 5% above the legal threshold for increase d punishment. Common sens e would not lead one to believe that a passerby, espe cially one who turns out to be homeless, was likely to have over $500 in cash.

Second, to the extent we could rely on the plea inqu iry as “a whol e” to resolve these issues, the inquiry was muddied when the milita ry judge provided the elements
for the wro ng offense.

Accordingly, we find th ere is a substantial basis in law and fact to question the providence of appellant’s plea. Murphy , 74 M.J. at 305. Accordingly, on these facts, we take view of the dissenting judge in Barton , and approve only so much of the charge that provides that appellant co nspired to commit larce ny of some value.

See Barton , 60 M.J. at 68 (J . Erdmann dissenting).

CONCLUSION

This court affirms only so much of the finding of guilty of the Specification of Charge I as finds that:BROADEN—ARMY 20150414

6 [appellant] did, at or near the island of Oahu, Hawaii, on
or about 3 Januar y 2015, conspire wi th Private (E-2) Markel D. McNeil, Private (E -2) Terrell D. Price, and
Mrs. Kassandra Mele ndez to commit an offense under the
Uniform Code of M ilitary Justice, to wit: larceny of property of some value, the property of Mr. S.O., and in order to effect the object of the conspiracy, the said Private (E-2) Quincy C. Broa den and Private (E-2) Markel D. McNeil, Private (E-2) Te rrell D. Price, and Mrs.
Kassandra Melendez did steal $527.00 from Mr. S.O.

The remaining findings of guilty are AFFIRMED.

Applying the factors set ou t by our superior court in United States v.
Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013), we are co nfident that reassessment is appropriate. First, we lo ok to the penalty landscape. The maximum punishment is reduced by four and one half years. Here , the adjudged sentence was a year and one half longer than the appr oved sentence becaus e of the pretrial agreement. Second, appellant was sentenced by a milit ary judge alone. Third, the gravamen of the criminal conduct included within the original offenses remains substantially the same. Thus, neither th e penalty landscape nor the admissible aggravation evidence has significantly cha nged. Lastly, we have familiarity and experience with the remaining offenses to reliably determine what sentence would have been imposed at trial.

Reassessing the sentence on the basi s of the noted erro r, the remaining findings of guilty, and the entire record, we AFFIRM the sentence as approved by the convening authority. Al l rights, privileges, and prope rty, of which appellant has been deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored. See UCMJ arts. 58b(c ) and 75(a).

Senior Judge CAMPANELLA an d Judge PENLAND concur.

FOR THE COURT:

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