CARMER – ARMY 20070173

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

GALLUP, TOZZI, and HAM

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Private E1 CHRISTOPHER M. CARMER**

**United States Army, Appellant**

ARMY 20070173

Headquarters, U.S. Army Signal Center and Fort Gordon

Donna Wright and Roger Nell, Military Judges

Colonel D. Shawn Shumake, Staff Judge Advocate

For Appellant:  Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Major Sean F. Mangan, JA; Major Jonathan F. Potter, JA, USAR (on brief).

For Appellee:  Lieutenant Colonel Francis C. Kiley, JA; Captain Michael D. Wallace, JA (on brief).

12 September 2008

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SUMMARY DISPOSITION

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Per Curiam:

A military judge sitting as a special court-martial empowered to issue a bad-conduct discharge convicted appellant, pursuant to his pleas, of failure to repair on divers occasions, insubordination (five specifications), wrongful use of marijuana (four specifications), wrongful distribution of marijuana (two specifications), and communicating a threat, in violation of Articles 91, 92, 112a, and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 891, 892, 912, and 934 [hereinafter UCMJ].  The military judge sentenced appellant to a bad-conduct discharge, confinement for ten months, and reduction to Private E1.  Pursuant to a pretrial agreement, the convening authority approved only seven months confinement and otherwise approved the adjudged sentence.  The convening authority also appropriately granted appellant credit for two days of confinement against his sentence to confinement.  

This case is before the court for review under Article 66, UCMJ.  Appellant asserts, *inter alia*, that he improvidently pled guilty to the two specifications of distribution of marijuana and the one specification of communicating a threat.  We have considered the entire record of trial, appellant’s assignments of error and the government’s reply thereto and find appellant’s plea provident with respect to the two specifications of distribution of marijuana but improvident to the one specification of communicating a threat.  Accordingly, we will take corrective action in our decretal paragraph.  

“[W]e review a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo.”*United States v. Inabinette*, 66 M.J. 320, 322 (C.A.A.F. 2008).  Furthermore, in reviewing a guilty plea, “we apply the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea.”  *Id.**See also United States v. Eberle,* 44 M.J. 374, 375 (C.A.A.F. 1996).  

In addition, “[a] military judge may not accept a guilty plea without first determining that a factual basis exists for the plea.”  U*nited States v. Jordan*, 57 M.J. 236, 238 (C.A.A.F. 2002)); *see* UCMJ art. 45(a).  As our superior court stated:

[T]o establish an adequate factual predicate for a guilty plea, the military judge must elicit “factual circumstances as revealed by the accused himself [that] objectively support that plea[.]”  *United States v. Davenport*, 9 MJ 364, 367 (CMA 1980).  It is not enough to elicit legal conclusions.  The military judge must elicit facts to support the plea of guilty.  *United States v. Outhier*, 45 MJ 326, 331 (1996).  The record of trial must reflect not only that the elements of each offense charged have been explained to the accused, but also “make clear the basis for a determination by the military trial judge . . . whether the acts or the omissions of the accused constitute the offense or offenses to which he is pleading guilty.”  *United States v. Care*, 18 USCMA 535, 541, 40 CMR 247, 253 (1969).

*Jordan*, 57 M.J. at 238 (alterations in original); *United States v. Simmons*, 63 M.J. 89, 92 (C.A.A.F. 2006).

Looking at the record as a whole, we find the military judge failed to elicit sufficient facts from appellant pertaining to whether the alleged unlawful communication of a threat was prejudicial to good order and discipline or service discrediting.  Specifically, while discussing the specification alleging unlawful communication of a threat in violation of Article 134, UCMJ, the military judge failed to inquire into whether the actions of the appellant were prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces.  Further, the portion of the stipulation of fact relevant to the unlawful communication of a threat specification merely recites the language of the element with no further explanation or detail.  Without a factual predicate, we fail to see how the military judge determined “whether the acts . . . of the accused constitute[d] the offense . . . to which he [pleaded] guilty.”  *Care*, 18 U.S.C.M.A. at 541, 40 C.M.R. at 253; *see United States v. Barton*, 60 M.J. 62, 67 (C.A.A.F. 2004) (Erdmann, J., dissenting) (“The mere recitation of the elements of a crime . . . and an accused’s rote response is simply not sufficient to meet the requirements of Article 45 [and *Care*].”).  Therefore, we conclude a substantial basis in law and fact exists for overturning the military judge’s acceptance of appellant’s guilty plea to communicating a threat (Specification 1, Charge V).

The finding of guilty to Specification 1 of Charge V is set aside and that specification is dismissed.  This court has sufficient “experience and familiarity with [the remaining offenses] to reliably determine what sentence would have been imposed at trial by the military judge . . . .”  *United States v. Moffeit*, 63 M.J. 40, 43 (C.A.A.F. 2006)****(Baker, J., concurring).  Reassessing the sentence on the remaining findings of guilty on the basis of the entire record, applying the principles of *United States v. Sales*, 22 M.J. 305 (C.M.A. 1986), and *Moffeit,*63 M.J. at 42-44, to include Judge Baker’s concurring opinion, the court affirms the sentence as approved.    

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court 

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