## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

CAMPANELLA, SALUSSOLIA, and FLEMING Appellate Military Judges

UNITED STATES, Appellee

v. Specialist RO BERTO FLORES United States Army, Appellant

ARMY 20160252

Headquarters, 1st Cavalry D ivision (Rear)(Provisional)

Bernie C. Lafortez a, Military Judge

Lieutenant Colonel Oren H. McKn elly, Staff Judge Advocate (pret rial)

Colonel Oren H. McKnelly, Staf f Judge Advocate (recommendation) Lieutenant Colonel Scott E. Ling er, Staff Judge Ad vocate (adden dum)

For Appellant: Colonel Mary J. B radley, JA; Capta in Katherine L. DePaul, JA; Captain Bryan A. Osterhage, JA ( on brief); Lieut enant Colonel T iffany M. Chapman, JA; Major Todd W. Simpson, JA; Cap tain Bryan A. Os terhage, JA ( on reply brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Austin L. Fenwick, JA; Captain Joshua B. Banister, JA (on brief).

29 January 2018

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

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

FLEMING, Judge:

In this case, we dismiss a speci fication of desertion, affirm a finding of guilty to the lesser-included offense of absence without leave (AWOL) as to a different desertion specificatio n, and grant relief for delay in post-tri al processing. See
United States v. Collazo , 53 M.J. 721, 727 (Army Ct. Crim. App. 2000).

A military judge sitti ng as a special court-martial convicted appellant, pursuant to hi s pleas, of two specifi cations of desertion in vi olation of Article 85 of the Uniform Code of Military Jus tice, 10 U.S.C. § 885 (2012) [U CMJ]. The military judge sentenced appellant to a b ad-conduct discha rge and confin ement for nine months. The convening authorit y approved only so much of the a djudged sentence as provided for a bad-conduct disc harge and confinement for 120 days, pursuant to a pretrial agreement.FLORES—ARMY 20160252

2 This case is before us for rev iew pursuant to A rticle 66, UCMJ. Appellant initially asserted thr ee assigned errors, on e of which challeng ed the commander’s authority to take ac tion on appellant’s co urt-martial. Appella nt now agrees this assignment of error is moot becau se this court gr anted the gove rnment motions to attach appellate exh ibits that establishe d the commander’s auth ority. We address the remaining two assignments of err or, which merit discussion and relief. We have

also considered the matter personal ly raised by appellant pursu ant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 19 82) and find it to be without merit.

Providence of Guilty Plea

Appellant argues the military ju dge abused his discretion in a ccepting appellant’s plea of guilty because he did not resolve inconsist encies abou t: 1) the unit from which appellant deserte d with respect to Specificatio ns 1 and 2 of The Charge; and 2) “a factual interru ption in [appell ant’s] period of absence” with respect to Specifica tion 1 of The Charge.

We review a military judge’s dec ision to accept a guilty plea f or an abuse of

discretion. United States v. Schell , 72 M.J. 339, 345 (C.A. A.F. 2013) (citing United

States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008)). A gu ilty plea will not be

set aside unless we find a substa ntial basis in law or fact to question t he plea.

Inabinette , 66 M.J. at 322. W e apply this “substant ial basis” test by de termining

whether the record raises a subs tantial question about the fact ual basis of appellant’s guilty plea or the law und erpinning the plea. Id. ; see also United States v. Weeks , 71 M.J. 44, 46 (C.A.A.F. 20 12) (“It is an abuse of discretion for a military judge to accept a guilty plea w ithout an adequate fa ctual basis to suppo rt it . . . [or] if the ruling is based on an erroneous view of the law.”).

Appellant’s Unit of Assignment

Initially, appellant wa s charged with two s pecifications of des erting his unit: “Headquarters and Head quarters Troop [HHT] , 3d Squadron, 3d Cav alry Regiment, III Corps/1st Cavalry Division.” Prior to arraignment, appella nt’s unit was amended in both specificatio ns. Specification 1 was amended to “[HHT], 3d Squadron, 3d

Armored Cavalry Regiment, III Corps. ” 1 Specification 2 was amended to “[HHT], 3d Squadron, 3d Caval ry Regiment, 1st Cavalry Division. ”

At trial, the military judge and the parties did not clarify wh ich particular unit organization or identification c ode (UIC) was applicable to Spe cification 1 or 2. This failure now gives rise to t he current appell ate controvers y. At issue is the unit

1 During his review of the stipu lation of fact, a ppellant noted a discrepancy and proactively advised the military judge that the unit listed in Specification 1 “should read ‘III Corps,’ not ‘1st CAV Division.’”FLORES—ARMY 20160252

3 from which appellant w as charged with dese rting in Specificatio ns 1 and 2, and, depending on that determination, whether appellant was assigned to that unit, and did he plead guilty t o deserting that charg ed unit during the p rovidence inquiry.

On appeal, appellant asserts Sp ecifications 1 and 2 were charge d as the same

unit defined as “0300 03ARHHT” (UIC “WG2NT 0 ”) and he only admitted to deserting a different unit defined as “030003ARSQ REAR (UIC: “W G2NT D ”). After a thorough review of the entire record, to include the st ipulation of fact, appellant’s admitted enlisted re cord brief (ERB) , and his provi dence inquiry responses, the court finds appe llant was charged with two separ ate units in Specifications 1 and 2. 2

Appellant’s ERB docum ents his unit o rganization as “030003ARSQ REAR” (“WG2NT D ”) from 9 November 2010 to 2 Mar ch 2014. Specifi cation 1, whic h was charged from on or abou t 10 December 2010 to 15 February 2014, spans this entire timeframe. Appellant agreed in the stipulation of fact, as to Specification 1, that “[t]he rear-detachmen t unit was the HHT.” 3 In his discussion with the military judge regarding Specificati on 1, appellant clearl y stated, several ti mes, he was assigned to

the rear detachment a nd he “immediately” in tended to remain awa y from his unit permanently. Appellant admits he deserted from “[HHT], 3d Squa dron, 3d Armored Cavalry Regiment, III Corps,” the unit charged in Specification 1. The court finds the stipulation of fact , appellant’s provid ence inquiry respons es, and his ERB all support a conclusion t hat the unit charged, and to which appell ant plead guilty to deserting in Specification 1, w as “030003ARSQ RE AR” (UIC: “WG2N T D ”).

Appellant also asserts the failure to incl ude the language “Rea r Detachment” in the unit description in Specification 1 created a fatal vari ance. Whether deemed a

mere omission or a varia nce, this failure was not fatal because appellant was not mislead or prejudiced by the lack of this language. Appellant clearly understood and agreed the unit he des erted was the “rear d etachment” and that was “HHT, 3d Squadron, 3d Armored Caval ry Regiment, III Corps.” 4

2 The two different unit organizations and U IC codes l isted in a ppellant’s ERB, when combined with the parties’ agree d-upon amendments to the units in both specifications, undermine appellan t’s assertion th at the two sp ecifications were charged as the same unit.

3 The stipulation of fac t did not establish that HHT and the rea r-detachment were the same unit for Sp ecification 2.

4 Even if the omission c ould be deemed a variance it was not mat erial and did not

(continued . . .)FLORES—ARMY 20160252

4 There is, however, a substantial basis in fact t o question appe llant’s plea to Specification 2. On or about 1 6 February 2014, appellant retur ned to military

control. On 3 March 2014 , during appellant’s return, his ERB r eflects his reassignment to “030 003ARHHT” (“WG2NT 0 ), which makes no reference to a “rear detachment.” Approximately two w eeks after his reassignment, a ppellant again left military control. This departur e is the genesis of Specificati on 2 encompassing the

dates from on or about 18 March 2014 t o on or about 17 January 2016.

As to Specification 2, the stipul ation of fact and appellant’s providence inquiry responses are ambiguous as to wheth er appellant was ple ading guilty to deserting his newly reassigned unit, “030003ARHHT” (UIC “WG2NT 0 ”), or his old unit, “030003ARSQ REAR (UIC: “WG2NT D ”). As accurately recognized in appellant’s brief, “[t]he [pr ovidence] colloquy for both specif ications revolved

around the ‘rear detachment’” un it. (Appellant Br. at 5). Whe n questioned by the military judge as to his unit in Specifi cation 2, appellant rep lied “I believed that it

was the same unit that I was attached to w hen I went AWOL.” A review of the context of the ongoin g discussion with the m ilitary judge indic ates this statement appears to reference the unit from Specification 1 and appellan t’s first departure from the Army in December 2010. A fter a thorough review of the record, we hold

that there is a substa ntial basis to questi on the factual basis of appellant’s plea to Specification 2 because it appears appellant only agreed to dep arting his “rear detachment” unit (“03000 3ARSQ REAR” (“WG2NT D ”)) when his ERB reflects his assignment to a di fferent unit “030003ARHHT” (UIC “WG2NT 0 ”) during the entire time period charged i n Specification 2.

While the government requests this court accept appellant’s ple as by finding

the existen ce of an organic relations hip between “030003ARHHT” (UIC

“WG2NT 0 ”) and “030003ARSQ REAR (UIC: “WG2NT D ”), such relationship is not

established on the re cord. Ratifying the e xistence of such rel ationship, particularly in light of the divergence in the higher parent echelons of the alleged units, III Corps (Specification 1 ), and 1st Cavalry Div ision (Specificatio n 2), is not ju stified.

(. . . continued) prejudice the appellant. See United States v. Treat , 73 M.J. 331 (C.A.A.F. 2014);

United States v. Toth , ARMY 200811, 2009 CCA LEXIS 440 at *8 (Army Ct. Crim. App. 30 Oct. 2009) (stating “[u]nder some c ircumstances, a vari ance in the unit or organization charged may not be f atal.”). In thi s case, the in clusion of the language

“Rear Detachment” would not sub stantially change the nature of the offense or increase the seriousness or pote ntial punishment of the offense . Appellant is not prejudiced by this lac k of language because he is not at risk o f prosecution for the

same conduct and he was not misled as to the unit or denied the opportunity to defend against the specification.FLORES—ARMY 20160252

5 Factual Interruption in Specification 1

The military judge an d the parties failed to recognize or addre ss inconsistencies raised in the s tipulation of fac t and on the re cord to appellant pleading guilty to desertion fro m on or about 10 D ecember 2010 to on or about 15 February 2014 in Specification 1. Appellant was arrested and h eld in confinement pursuant to his “military misconduct” from 14 January 2011 to 2 1 January 2011. (Pros. Ex. 1 at 4) . This eight-da y confinement wa s a factual i nterruption in appellant’s cont inuous desertion. The inc onsistency is further exacerbated by appellant’s statement that he formed the intent “immediately” t o remain away permanently from his unit. Appel lant’s similar i ntent was not established after 22 January 2011 as required to support a desertion specification a fter 22 January 2011.

Based on these issues , after omitting the e ight days of appella nt’s confinement, this court will only affirm a findi ng of guilty to th e lesser-includ ed offense of AWOL

under Article 86, UCMJ.

The Manual for Courts-Martial

, United States [ MCM ] authorizes the court to divide one longer pe riod of absence in an A WOL specification in to two or more separate, shorter AWOLs under th at same single specification. MCM

, part IV, ¶ 10.c.(11) 5

. See United States v. Scott , 59 M.J. 718 (Army C t. Crim. App. 2004). To

resolve the issu e raised by appellant, w e will modify Specifica tion 1 to account for

the terminat ion date of 13 Janu ary 2011. We will indicate a se cond absence in Specification 1, begin ning 22 January 2011, when appellant left confinement, to the end-date originally charged.

Post-Trial Delay

Appellant complains he suffered an undue, post-trial delay beca use 235 days elapsed between h is court-martial and the convening authority’s action, less five additional days reques ted by defense counsel to submit appellan t’s clemency matters pursuant to R ule for Courts-Martial 1105. While we find no due process violation

under Barker v. Wingo , 407 U.S. 514 (1972), w e also find no reas onable explanation for the delay and processing erro rs in this case and accordingl y provide re lief in our decretal paragraph. See Collazo , 53 M.J. at 727.

5 The MCM states “[a]n accused may proper ly be found guilty of two or mo re separate unauthorize d absences under one s pecification, provide d that each absence

is included within t he period alleged in t he specification and provided that the

accused was not misled. If an accused is found guilty of two o r more unauthorized absences under a single specification, the maximum authorized p unishment shall not

exceed that authorized if the ac cused had been f ound guilty as charged in the specification.” MCM

, part IV, ¶ 10.c.(11).FLORES—ARMY 20160252

6 Sentence Reassessment

We are able to reasse ss the sentence in thi s case, and do so af ter a thorough analysis and in accordance with the principles articulated by o ur superior court in

United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013), and United States

v. Sales , 22 M.J. 305, 307-08 (C.M.A. 1986). A Court of Criminal Appea ls must “assure that the sentence is ap propriate in relation to the aff irmed findings of guilty, [and] that the senten ce is no greater tha n that which would hav e been imposed if the prejudicial error had not been committed.” Sales , 22 M.J. at 307-08 (quoting United
States v. Suzuki , 20 M.J. 248, 249 (C.M .A. 1985)). “If the c ourt can determine to its satisfaction that, absent any error, the s entence adjudged woul d have been of at least a certain severity, then a sentence of that severity or less wi ll be free of the prejudicial effects of error. . . .” Sales , 22 M.J. at 308.

Affirming a convictio n for two periods of AWOL in Specification 1 and dismissing Specification 2 reduce s appellant’s e xposure from te n years of confinement to eight een months of confinemen t. This change in the maximum sentence, however, is i nconsequential in th is case because, as a special courtmartial, the sentence was alread y capped at twelve months of co nfinement. Despite the dismissal of Specification 2, appellant stipulated that he absented himself from the Army for over forty-nine months, which is clearly aggravati ng evidence. 6 Appellant remains convicted of A WOL, a type of offense with whi ch this court has experience and famil iarity, and can reliabl y determine what sen tence would have been imposed at trial. We are c onfident that bas ed on the enti re record and appellant’s conduct, the milita ry judge sitting al one as a spec ial court-martial, would have imposed a sentenc e of at least a bad- conduct discharge and confinement for 120 days.

CONCLUSION

The court affirms onl y so much of the findi ng of guilty of Spec ification 1 as

finds that:

appellant did, on o r about 10 Decem ber 2010, without authority, absent himself from his unit, to wit: Headquarters and Headquart ers Troop, 3d Squadron, 3d Armored Cavalry Regiment, II I Corps, locat ed at Fort Hood, Texas, and did rema in so absent until he was apprehended on or about 13 January 2011; and that

6 The stipulation of fact betwee n the government and appellant a grees “for the purposes of this or a ny subsequent appeal, re-hearing, or re-tr ial—that the facts contained in [the] stipulation ar e true and are admissible [in evidence].” (Pros. Ex. 1 at 1).FLORES—ARMY 20160252

7 appellant did, on o r about 22 Janua ry 2011, without authority, absent himself from his unit, to wit: Headquarters and Headquart ers Troop, 3d Squadron, 3d Armored Cavalry Regiment, II I Corps, locat ed at Fort Hood, Texas, and did rema in so absent until he was apprehended on or a bout 15 February 2 014, in violation of Article 86, UCMJ.

The finding of guilty a s to Specification 2 is set aside and th at specification is

DISMISSED. After cons idering the entire r ecord and the post-tr ial delay, the court AFFIRMS only so much of the sentence as pr ovides for a bad-cond uct discharge and confinement for ninety days. A ll rights, privi leges, and prope rty, of which appellant has been deprived by virtue of th at portion of the findings and sentence set aside by

this decision are ordered restored. See UCMJ arts. 58b(c) and 75(a).

Senior Judge CAMPANELLA and Judge SALUSSO LIA concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: