## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and SCHASBERGER Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant ELI R. VICK United States Army, Appellant

ARMY 20180530

Headquarters, I Corps Timothy P. Hayes, Jr. and Lanny J. Acosta, Jr ., Military Judges

Colonel Oren H. Mcknell y, Staff Judge Advocate

For Appellant: Major Julie L. Bor chers, JA; Captain Steven J. Dray, JA.

For Appellee: Pursuant to A.C .C.A. Rule 15.4, no response fil ed.

11 April 2019

-------------------------------- SUMMARY DISPOSITION

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

Per Curiam:

Appellant has not ra ised any assignments o f error and has subm itted his case

for our review “on its merits.” We find it has merit indeed. Our review of this case

reveals one clear error requiring correction.

We set aside appella nt’s conviction for a specification allegin g appellant was derelict in his duties. Appella nt’s plea coll oquy with the mil itary judge did not establish his guilt, m uch less his provide nce thereto. Moreove r, the stipulation of fact—mutually agreed t o by appellant and the government—directl y refutes the substance of appellant’s alleged dereliction.

BACKGROUND

Appellant was a Unit Pr evention Leader (UPL ), a position dedica ted to preventing the abuse of controlle d substances in appellant’s un it. He was also a drug dealer. More precisely, ap pellant was alre ady engaged in the manufacture, transportation, and di stribution of controlled substances when he was given duties as a UPL. Appellant’s new duties di d not deter him from his nefar ious activities.VICK—ARMY 20180530

2 One of appellant’s duties as a UPL was to conduct training on t he dangers of illicit substances and to help pr event the use of such substanc es within his unit. Not shy of contradictions, appellant simultane ously possessed, used , manufactured, or distributed a variety of controlled substances, including marij uana, cocaine, MDMA, and psilocybin mushrooms. Unfortu nately for appellant, his dou ble life was soon discovered, and his te nure as both UPL and dr ug-dealer came to an ignominious end.

Charged with a caval cade of misconduct, appellant offered to pl ead guilty to his pharmacological misdeeds in e xchange for dismissal of one c harge and assurance

that he would serve n o more than twenty m onths of confinement. The convening authority accepted appellant’s offer, and the parties entered i nto a pretrial agreement accordingly.

One of the specifications to whi ch appellant agr eed to plead gu ilty alleged he

was derelict in his duties as a U PL because, “he willfully fail ed to deliver informed prevention education and traini ng to all Soldiers assigned to [ appellant’s unit].” Inexplicably, appellant and the government also a greed to a sti pulation of fact that stated: “During his tim e as UPL, [appellant] would continue to provide training commensurate with his position as UPL , but he would also us e, manufacture, and distribute controlled substances in his personal capacity.” (em phasis added).

At appellant’s guilty plea, he dutifully ex plained his nefariou s enterprises manufacturing, distri buting, and personall y using vari ous contr olled substances. When appellant’s provi dence inquiry turned t o the subj ect of de reliction, however, his explanation was c onvoluted. Appellant ’s initial explanatio n was that he was

derelict as a UPL beca use he “didn’t preven t anything from happ ening” and “didn’t inform the chain of command of any drug-related in cidents happe ning in the unit.”

The military judge pointed out t hat appellant was charged with dereliction for failing to provide tra ining, not for failing to notify the chai n of command about drug use in the unit. The military ju dge asked appellant if he had provided the training a UPL was required to pr ovide. Appellant resp onded, “I did, your Honor.” The military judge asked why appellant was der elict if he provided the training. Appellant responded th at, while he provided the training, he al so provided drugs to

members of his unit and “failed t o inform the leadership of the consequences.”

While appellant briefly suggested that he might not have provid ed as many quarterly traini ng sessions as were req uired of a UPL, further discussion with the military judge demonstr ated he most likely provided the require d quarterly training. Eventually, appellant s uggested that he was derelict because he “failed to provide education and training when [he] handed out the drugs to soldie rs.” Eventually, the military judge appeared to accept this theory, coupled with the explanation from defense counsel that appellant’s “UPL duties were essentially 2 4/7, so if he saw someone using drugs it was his duty at that time to inform them , or to prev ent thatVICK—ARMY 20180530

3 from happening.” The t rial counsel agreed. The military judge ultimately accepted appellant’s plea, but did not resolve the co ntradiction between appellant’s theory of his own guilt and the st ipulation of fact.

The military judge, s itting as a general co urt-martial, convict ed appellant, pursuant to hi s pleas, of one specifi cation under Article 92 an d nine specifications under Article 112a, U niform Code of Military Justice, 10 U.S.C. §§ 892, 112a [UCMJ]. The militar y judge sentenced appe llant to a bad-conduc t discharge, three years of confinement, forfeiture of all pay and allowances, and reduction to the grade of E-1. Pursuan t to the pretrial agre ement, the convenin g authority approved appellant’s sentence o nly insofar as it pro vided for a bad-cond uct discharge, twenty months of confinement, forfeitur e of all pay and allowances, an d reductio n to the grade of E-1. Appellant’s cas e is now before us for review und er Article 66, UCMJ.

LAW AND DISCUSSION

A military judge’s dec ision to accept a guilty plea is reviewed for 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, 32 2 (C.A.A.F. 2008)). A g uilty plea will only b e set aside if we find a substantial ba sis in law or fact to ques tion the plea. Id . (citing

Inabinette , 66 M.J. at 322). While a stipulation of fact can support the providence of a guilty plea, it c an also intro duce matters inc onsistent wi th a guilty plea and render such a ple a improvident. See United States v. Simpson , 77 M.J. 279, 283 (C.A.A.F. 2018).

We find the military judge abuse d his discretion b y accepting a ppellant’s plea to the dereliction of duty speci fication. Appellant’s colloquy with the military judge

was insufficient to establish th at appellant “wi llfully failed to deliver informed prevention education and traini ng.” Further, th e stipulation o f fact explicitly stated: “During his time as UPL, [appella nt] would continue to provide training commensurate with his position a s UPL . . . .” T he stipulation of fact is therefore plainly inconsistent with the la nguage of the specification all eging dereliction. It is our duty to correct this error.

CONCLUSION

Appellant’s convicti on of The Specificatio n of Charge III and C harge III are SET ASIDE and both The Specifica tion of Charge III and Charge I II are DISMISSED. The remaining findi ngs of Guilty are AFFIRMED.

Reassessing the sentence on the basis of the errors noted, the entire record, and in accordance with the principles of United States v. Sales , 22 M.J. 305, 308 (C.M.A. 1986) and United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013), appellant’s sen tence is AFFIRMED.VICK—ARMY 20180530

4 FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: