## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before LIND, KRAUSS, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 MATTHEW M. DENTICE United States Army, Appellant

ARMY 20130591

Headquarters, Fort Riley Jeffery R. Nance, Military Judge
Colonel Daniel G. Brookhar t, Staff Judge Advocate

For Appellant: Colone l Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA; Major Vincent T. Shul er, JA; Captain Brian D. Andes, JA (on brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues, JA; Captai n Benjamin W. Hogan, JA (on brief).

15 August 2014

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

LIND, Senior Judge:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of attempted larc eny of military property of a va lue more than $500.00; absence withou t leave terminat ed by apprehensi on; damage to non-military property; and assault consumma ted by a battery in violation of Ar ticles 80, 86, 109, and 128, Uniform Code of Mi litary Justice [hereinafter UCMJ], 10 U.S.C. §§ 880, 886, 909, 928 (2012). The military judge sentence d appellant to a bad-conduct discharge and seven months confinement. The convening authority approved the adjudged sentence and credited appellant with 95 days against the sentence to
confinement.

This case is before th e court for review pursuant to Ar ticle 66, UCMJ. Appellant argues that the Specification of Charge III (dam aging non-military property in violation of Arti cle 109, UCMJ) fails to state an offense and that there is
a substantial basis in law and fact to questi on appellant’s plea of guilty to the sameDENTICE

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2 specification. We agree that there is a substantial basis in law and fact to question appellant’s plea of guilty to the Specification of Charge III and will gran t relief in our decretal paragraph. We ha ve also considered those matters personally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), and find they are without merit.

We review a military judge’s decision to accept a guilty plea 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, 322 (C.A.A.F. 2008 )). A guilty plea will only be
set aside if we find a substantial basis in law or fact to question the plea. Id. (citing
Inabinette , 66 M.J. at 322). The court applies this “subst antial basis” test by determining whether the record raises a su bstantial question about the factual basis of appellant’s guilty plea or the law un derpinning the plea. Inabinette , 66 M.J. at 322; see also UCMJ art. 45(a); Rule for Courts-Martial [hereinafter R.C.M.] 910(e);
United States v. Weeks , 71 M.J. 44, 46 (C.A.A.F. 2012) (“It is an abuse of discretion for a military judge to accept a guilt y plea without an adequa te factual basis to support it . . . [or] if the ruling is based on an erro neous view of the law.”).

“The providence of a plea is based not only on th e accused’s understanding and recitation of the factual history of th e crime, but also on an understanding of
how the law relates to those facts.” United States v. Medina

, 66 M.J. 21, 26 (C.A.A.F. 2008) (citing United States v. Care , 18 U.S.C.M.A. 535, 538-39, 40 C.M.R. 247, 250-51 (1969) ). An accused must under stand “the na ture of the charges brought agains t him . . . .” Id. This is due to the fa ct that “an accused has a right to know to what offense and under wh at legal theory he or she is pleading guilty.” Id. “An essential aspect of [accurately] informing [a ]ppellant of the nature
of the offense is a correct de finition of legal c oncepts. The judge’ s failure to do so may render the plea improvident.” United States v. Negron , 60 M.J. 136, 141 (C.A.A.F. 2004).

Article 109, UCMJ, states: “Any person subject to this ch apter who willfully or recklessly wastes, spoils, or otherwis e willfully and wrongfully destroys or damages any property other than military property of the United States shall be punished as a court-ma rtial may direct.” Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM ], pt. IV, ¶ 109.a.

The Specification of Charge III alleged appe llant: “did, at or near Fort Riley, Kansas, on or about 27 February 2013, willful ly and wrongfully da mage by striking
with a knife the inte rior walls of his a ssigned on-post quarter s, the amount of the said damage being in the su m of less than $500.00, the property of Picerne Military Housing.” When describi ng the charge, the militar y judge told appellant:

[In] Charge III a nd its Specification . . . you are charged with willfully and wrongfully damaging personal property in violation of Article 109, UCMJ. By pleading guilty toDENTICE

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3 this offense, you are admitting that the follow ing elements are true and accurately describe what you did on this
occasion.

Element (1) That on or about 27 February 2013, at or near Fort Riley, Kansas, you willfully and wrongfully damaged
certain personal property , that is, the interior wall[s] of your assigned on-pos t quarters by stri king them with a
knife.

(Emphasis added). The judge then desc ribed the remaining elements and also explained to appella nt: “property may be considered damage d if it has been physically injured in any way.” *

As our predecessor court acknowledged, “the root of the problem is the fact that Article 109, UCMJ, pros cribes two related but differe nt offenses . . . . One
offense relates to the willful or r eckless waste or spoliation of the real property of
another. The other offense relates to th e willful and wrongful destruction of the personal property of another.” United States v. Weaver , 48 C.M.R. 856, 856 (A.C.M.R. 1974) (partial empha sis omitted). Article 1 09, UCMJ, therefore provides
two different theories of li ability for prosecution, each dependent on the nature of the property at issue: real pr operty or personal property.

For offenses involving real property, “[t]he terms ‘wastes’ and ‘spoils’ as
used in this article refer to such wrongful acts of voluntary de struction of or
permanent damage to real pr operty . . . .” MCM , pt. IV, ¶ 109.c(1) (emphasis added). “To be destroyed, the property need not be complete ly demolished or annihilated, but must be sufficiently injured to be useless for its intended purpose. Damage consists of any physical injury to the property.” MCM , pt. IV, ¶ 109.c(2). Whereas personal property need only be (intentionally) damage d or destroyed to
constitute an offense under Article 109, UCMJ, real proper ty must be (intentionally or recklessly) permanently damaged or destroyed to constitute an offense under Article 109, UCJM. MCM , pt. IV, ¶ 109.c.

We need not address the issue of whet her the Specification of Charge III
states an offense be cause we find that appellant mi sunderstood the nature of the

* The military judge instructed appellant in accordance with paragraph 3-33-2 (Nonmilitary Property—Persona l Property—Destroying or Damaging (Article 109)) of the Military Judges ’ Benchbook. Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook [her einafter Benchbook] , para. 3-33-2 (1 Jan. 2010). He did not instruct appellant in accordance with paragraph 3-33-1 (Nonmilitary Property—Real Property—Wasting or Spoili ng (Article 109)) of the Benchbook. Benchbook, para. 3-33-1.DENTICE

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4 offense to which he pleaded guilty. See Medina

, 66 M.J. at 26. T hus, his plea was not provident.

The military judge erred by instructing appellant that he was pleading guilty to damaging “personal property.” As the g overnment now concedes , an interior wall of on-post qua rters is real, not pe rsonal, property. See Black’s Law Dictionary 1337 (9th ed. 2009) (def ining “real property” as “[l] and and anything growing on, attached to, or erected on it, excluding anything that ma y be severed wi thout injury to the land” and “personal property” as “[ a]ny movable or intangi ble thing that is subject to ownership an d not classified as real proper ty”). By defini ng a wall as “personal property” rather than “real prop erty,” the military judge did not inform appellant that his “damage” to the wall must have been “permanent” to be convicted under Article 109, UCMJ.

As a result of these er rors, we are not confiden t appellant understood the
nature of the offense of which he was char ged and pleaded guilty. We therefore find
a substantial basis in law and fact to questi on appellant’s plea to the Specification of Charge III.

CONCLUSION

The findings of guilty of Charge III and its Specif ication are set aside and dismissed. The remaining find ings of guilty are AFFIRMED.

Reassessing the sentence on the basis of the errors note d, the entire record, and applying the principles of United States v. Sales , 22 M.J. 305, 308 (C.M.A. 1986) and the factor s set forth in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013), we ar e confident the military judge would have adjudged the same

sentence.

There is no dramatic change in th e penalty landscape or exposure. See
Winckelmann , 73 M.J. at 15-16; MCM , pt. IV, ¶ 33.e(1). Appellant’s maximum
sentence remains that of the jurisdictional limit of a special court- martial. See
MCM , pt. IV, ¶¶ 4.e, 10.e(2) (b), 46.e(1)(c), 54.e(2); UCMJ art. 19; R.C.M. 201(f)(2)(B). The gravamen of the offenses and the aggravating circumstances have not changed. See Winckelmann , 73 M.J. at 16. Appellan t remains convi cted of an assault consummated by a battery, absence without leave terminated by apprehension, and attempted larcen y of military property. The res gestae of the
assault offense demonstrates the aggravating conduct of ap pellant stabbing the wall with a knife during the att ack on his pregnant girlfrie nd. Because appellant was tried by a judge alone, we ar e also more confid ent of the sentence the military judge would have imposed for th e remaining offenses. Id. Finally, this court reviews the
records of a substantial num ber of courts-martial invo lving larcenie s, absences without leave, and a ssaults, and we have extensive experience with the level of sentences imposed for such offens es under various circumstances. See id.DENTICE

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5 The sentence is AFFIRMED. All rights, privileges, and property, of which appellant has been deprived by virtue of th at portion of the findings set aside by this decision, are ordered restored.

Judge KRAUSS and Ju dge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: