## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, TELLITOCCI, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant CHAD R. CAMPBELL

United States Army, Appellant

ARMY 20120850

Headquarters, 3rd Infa ntry Division and Fo rt Stewart (convened) Headquarters, Fort Stewart (action) Tiernan P. Dolan, Milit ary Judge (arraignment) Alexander L. Taylor, Military Judge (trial)
Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate

For Appellant: Lieutenant Colonel Imogene M. Jami son, JA; Major Richard E. Gorini, JA; Captain Matthew R. Laird (on brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L. Varley, JA; Major Catherine Brantley, JA; Captain Daniel M. Goldberg, JA (on brief).

24 July 2014

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

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

COOK, Senior Judge:

A military judge sitting as a special court-martial convicted appellant, pursuant to hi s pleas, of one specif ication of conspiracy to commit larceny, one specification of larceny, an d one specification of wr ongful appropriation, in
violation of Articles 81 and 1 21, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 921 (2006) [herei nafter UCMJ]. The military j udge sentenced appellant to a bad-conduct discharge, confinement for fi ve months, forfeiture of $1,774 pay per month for five months, and re duction to the grade of E-1. The convening authority approved the bad-conduct disc harge, 117 days of confin ement, forfeiture of $994 pay per month for four months, a nd reduction to the grade of E-1. 1

1 Because appellant was redu ced to the grade of E-1, the maximum allowable forfeiture was $994 pay per month for 12 months. The convening authority’s action cured the military judge’s error of ad judging forfeitures which exceeded the
maximum authorized amount.CAMPBELL—ARMY 20120850

2 This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises one assignment of error, which merits discussion and relief.

BACKGROUND

In his lone assignment of error, appellant alleges:

THERE IS A SUBSTANTIAL BASIS IN LAW AND FACT TO QUESTION APPELLANT’S PLEA OF GUILTY ON CHARGE I (CONSPIRACY) BECAUSE

THE MILITARY JUDGE DID NOT ELICIT FACTS TO

SUPPORT THE OVERT ACT OF STEALING.

In general, the co nspiracy specificat ion alleged appellant and Specialist GA, at or near Fort Stewart, Georgia, on or about 22 February 2012, conspired to steal copper wire, of a value more than $500, the property of Edwards Electric Service, and, in order to effect the object of thei r conspiracy, they stol e copper wire. The larceny specification alleged, generally, that ap pellant, at or near Fort Stewart, on or about 24 February 20 12, stole copper wire, of a value more than $500, the property

of Edwards Electric Service.

The military judge began appellant’s guilty plea inquiry by at tempting to list the elements for the conspiracy charge. Although successfully covering the two elements associated with a conspiracy and informing the appellant that the government was required to prove “every element of th e offense of larceny,” the military judge failed to list the elemen ts of the offense that the appellant was charged with conspiring to commit: the larceny of copper wire.

After discussing the c oncepts of ag reement, overt act, and effective abandonment with appellant, the fo llowing colloquy occurred:

MJ: Now I want you to descri be all of the elements of the offense of conspiracy as you understand them.

ACC: I believe th e first element, Your Honor, is that you enter into an agreement with another person to commit a
crime.

MJ: Right. And while that agreement was in place, what happened?

ACC: And then you and the other person carry out and execute the plan.CAMPBELL—ARMY 20120850

3 MJ: Or you did some thing to carry it out?

ACC: Yes, Your Honor.

MJ: An overt act?

ACC: Yes, Your Honor.

MJ: That’s what I was talking about earlier. A nd in this case
I believe there was an overt act. Was there, and we’re going to [sic] into this the elements of that, a larceny that took place?

ACC: Yes, there was larceny [sic].

MJ: Was that the ob ject of the conspiracy?

ACC: Yes, Your Honor.

MJ: Copper wire?

ACC: Stealing coppe r wire, yes, Your Honor.

MJ: All right. So, describe in your own words wh at you agreed to do and what you did.

ACC: We had seen the copper wiring inside of a construction
site. We decided or we planned on going to steal it. And we planned it out, and then we executed that.

MJ: All right. Let’s go ov er now the maximum punishment inquiry.

Later in the providence i nquiry, when reviewing th e larceny of the copper wire offense, the military judge listed and defined the relevant elements for larceny and engaged in a colloquy with appellant that covered each elemen t. However, there
was no discussion as to whet her this larceny was the same larceny that constituted
the overt act of the conspiracy charge. A stipulat ion of fact was not used in appellant’s case.CAMPBELL—ARMY 20120850

4 LAW AND DISCUSSION

A military judge’s acceptance of a guilt y plea is reviewed for an abuse of
discretion. United States v. Eberle , 44 M.J. 374, 375 (C.A.A.F. 1996); United States v. Rogers , 59 M.J. 584, 585 (Arm y Ct. Crim. App. 2003); United States v.
Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008). “The test for an abuse of discretion is
whether the record shows a subs tantial basis in law or fact for questioning the plea.”
United States v. Schell , 72 M.J. 339, 345 (C.A .A.F. 2013) (citing Inabinette , 66 M.J. at 322).

In order for a “plea of guilty to be know ing and volunt ary, the record of trial
must reflect that the elements of each o ffense charged have be en explained to the accused by the military judge.” Id. at 345 (quotation marks and citations omitted). Further, the record must demonstrate that the accused “understood how the law
related to the facts” of each offense. Id. at 345-46. If the mi litary judge fails to explain each element to the appellant, “he commits reversible error, unless ‘it is
clear from the entire reco rd that the accused knew the elements, admitted them freely, and pleaded guilty be cause he was guilty.’” United States v. Redlinski , 58 M.J. 117, 119. (C.A.A.F. 2 003) (citation omitted).

In the instant case, the military judge faile d to list the elem ents of larceny when he reviewed with appe llant the offense of conspira cy to commit larceny. By itself, this omission may not have amounted to harmful error because the military judge did list and explain the elements of larceny when he co vered the separate larceny specification. Id

. See United States v. Luby , 14 M.J. 619 (A.F.C.M.R. 1982) 2

However, in addition to sufficient ly covering the elem ents of charged offenses, the military judge must also establish an adeq uate factual predicate. “The military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the m ilitary judge that ther e is a factual basi s for the plea.” Rule for Courts-Martial 910(d). In order to establish an adequate fact ual predicate for a guilty plea, the military judge must elicit “f actual circumstances as revealed by the accused himself [that] obje ctively support that plea[.]” United States v. Davenport , 9 M.J. 364, 367 (C.M.A. 1980). It is not enough to elicit legal conclusions. The military judge must elic it facts to support th e plea of guilty.
United States v. Outhier , 45 M.J. 326, 331 (C .A.A.F. 1996). The re cord of trial must

2 In Luby , the Air Force Court held the military judge did not commit error during a guilty plea inquiry when he fa iled to cover the elements of the substantive offense that was the object of the conspiracy when he immediately covered these elements in regards to the same substantive offense separately charged. Howeve r, appellant’s
record does not reflect a “l engthy, accurate, painstaking inquiry” that was present and found to be persuasive in Luby

.CAMPBELL—ARMY 20120850

5 reflect not only that the elemen ts of each offense charged have been explained to the accused, but also “make cl ear the basis for a determin ation by the military trial judge . . . whether the acts or the omissions of the accuse d constitute th e offense or
offenses to which he is pleading guilty.” United States v. Care , 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969).

Appellant’s words establis h no more than he and some other person “had seen the copper wiring inside of a construction site. We deci ded or we planned on going to steal it. And we pl anned it out, and then we executed that.”

We find this inquir y does not establish an adequate factual predicate and note the following non-exhaustive list of deficiencies: failure to establish who was appellant’s co-actor and co-c onspirator; failure to establ ish when the agreement or overt act took place; failure to establish to whom the co pper wire belonged; failure
to establish the value of the copper wire (the specif ication alleged the property was
of a value in exce ss of $500); and failure to establish the taking was with the intent to permanently deprive another person of the use of this property.

The lack of specificity in appellant’s colloquy is tr oubling for a nother reason. At sentencing, appellant’s alleged co-consp irator, Specialist (SPC ) GA, testified that
before he entered into his co nspiracy with appe llant to steal copp er wire, appellant told SPC GA that appellant and another soldie r had recently stolen copper wire from an on-post construction site – the same construction site SPC GA and appellant would soon victimize. Thus, the record has evidence of tw o distinct conspiracies to steal copper wire invo lving appellant. However, ther e is no way to determine which conspiracy appellant wa s discussing during hi s providence inquiry. 3

Additionally vexing, as noted above, is that although the military judge later
discussed the elements of la rceny with appellant, that di scussion did not establish whether that larceny was the overt act effecting the charged conspiracy. In other words, we cannot affirm appe llant’s conviction for conspi racy to commit larceny of copper wire just because appellant later en tered a provident plea of guilty to larceny of copper wire. The plea colloquy did not establish a legal or factual nexus between
the two offenses.

3 Furthermore, if we were to affirm a generic specifica tion that at some unknown location, on some unknown da te, appellant conspired with some unknown person to steal copper wire of some va lue, the proper ty of someone else, a nd in order to effect the object of the cons piracy, did steal copper wire, we have doubts that appellant
could use the record of tria l to protect himself from a subsequent prosecution, given the two conspiracies ment ioned in the record. Cf. United States v. Dear , 40 M.J. 196, 197 (C.M.A. 1994) (an appe llant “may turn to the en tire record of trial in raising double-jeopardy protection.”) (citing United States v. Williams , 21 M.J. 330, 332 (C.M.A. 1986)).CAMPBELL—ARMY 20120850

6 As such, we find a substantial basis in law or fact for ques tioning this plea and the military judge abused his discre tion in accepting it. We will take appropriate action in our decret al paragraph.

CONCLUSION

On consideration of the entire record, the findings of guilty of Charge I and its Specification are set aside. The rema ining findings of gu ilty are AFFIRMED.
We are able to reassess the sentence on the basis of the error noted, an d do so after conducting a thorough analys is of the totality of ci rcumstances presented by appellant’s case and in accordance wi th the principles articulated 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 (C.M.A. 1986).

In evaluating the Winckelmann factors, we first find no dramatic change in the penalty landscape or appell ant’s punitive exposure whic h might cause us pause in reassessing appellant’s senten ce. Second, appellant plea ded guilty in a judge-alone court-martial. Third, we find the nature of th e remaining offenses still captures the gravamen of appellant’s mi sconduct. Finally, based on our experience, we are
familiar with the remaini ng offenses so that we ma y reliably determine what
sentence would have been imposed at trial.

Reassessing the sentence based on the er ror noted, the remain ing findings of guilty, and the entire record, we AFFIRM th e sentence as approv ed by the convening authority. We find th is reassessed sentence is not only purged of any error but is also appropriate. All rights, privileges, and property, of whic h appellant has been deprived by virtue of that portion of the fi ndings set aside by our decision, are
ordered restored. See UCMJ arts. 58b(c ) and 75(a).

Judges TELLITOCCI and HAIGHT concur.

FOR THE COURT:

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