UNITED STATES ARMY COURT 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. Brookhart, Staff Judge Advocate 

For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr., 

JA; Major Vincent T. Shuler, 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; Captain Benjamin W. Hogan, JA (on brief). 

15 August 2014 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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 larceny of military property of a value more than 

$500.00; absence without leave terminated by apprehension; damage to non-military 

property; and assault consummated by a battery in violation of Articles 80, 86, 109, 

and 128, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 880, 

886, 909, 928 (2012). The military judge sentenced 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 the court for review pursuant to Article 66, UCMJ. 

Appellant argues that the Specification of Charge III (damaging non-military 

property in violation of Article 109, UCMJ) fails to state an offense and that there is 

a substantial basis in law and fact to question appellant’s plea of guilty to the same 
DENTICE—ARMY 20130591 

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 grant relief in 

our decretal paragraph. We have 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 “substantial basis” test by 

determining whether the record raises a substantial question about the factual basis 

of appellant’s guilty plea or the law underpinning 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 guilty plea without an adequate factual basis to 

support it . . . [or] if the ruling is based on an erroneous view of the law.”). 

“The providence of a plea is based not only on the accused’s understanding 

and recitation of the factual history of the 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 understand “the nature of the 

charges brought against him . . . .” Id. This is due to the fact that “an accused has a 

right to know to what offense and under what 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 definition of legal concepts. 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 chapter who willfully 

or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys or 

damages any property other than military property of the United States shall be 

punished as a court-martial may direct.” Manual for Courts-Martial, United States

(2012 ed.) [hereinafter MCM], pt. IV, ¶ 109.a. 

The Specification of Charge III alleged appellant: “did, at or near Fort Riley, 

Kansas, on or about 27 February 2013, willfully and wrongfully damage by striking 

with a knife the interior walls of his assigned on-post quarters, the amount of the 

said damage being in the sum of less than $500.00, the property of Picerne Military 

Housing.” When describing the charge, the military judge told appellant: 

[In] Charge III and its Specification . . . you are charged 

with willfully and wrongfully damaging personal property

in violation of Article 109, UCMJ. By pleading guilty to 
DENTICE—ARMY 20130591 

3 

this offense, you are admitting that the following 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-post quarters by striking them with a 

knife. 

(Emphasis added). The judge then described the remaining elements and also 

explained to appellant: “property may be considered damaged 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, proscribes two related but different offenses . . . . One 

offense relates to the willful or reckless waste or spoliation of the real property of 

another. The other offense relates to the 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 emphasis omitted). Article 109, UCMJ, therefore provides 

two different theories of liability for prosecution, each dependent on the nature of 

the property at issue: real property 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 destruction of or 

permanent damage to real property . . . .” MCM, pt. IV, ¶ 109.c(1) (emphasis 

added). “To be destroyed, the property need not be completely 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) damaged or destroyed to 

constitute an offense under Article 109, UCMJ, real property 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 whether the Specification of Charge III 

states an offense because we find that appellant misunderstood the nature of the 

                                                           

*

 The military judge instructed appellant in accordance with paragraph 3-33-2 

(Nonmilitary Property—Personal Property—Destroying or Damaging (Article 109)) 

of the Military Judges’ Benchbook. Dep’t of Army, Pam. 27-9, Legal Services: 

Military Judges’ Benchbook [hereinafter 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 Spoiling (Article 109)) of the Benchbook. 

Benchbook, para. 3-33-1. 
DENTICE—ARMY 20130591 

4 

offense to which he pleaded guilty. See Medina, 66 M.J. at 26. Thus, his plea was 

not provident. 

The military judge erred by instructing appellant that he was pleading guilty 

to damaging “personal property.” As the government now concedes, an interior wall 

of on-post quarters is real, not personal, property. See Black’s Law Dictionary 1337 

(9th ed. 2009) (defining “real property” as “[l]and and anything growing on, 

attached to, or erected on it, excluding anything that may be severed without injury 

to the land” and “personal property” as “[a]ny movable or intangible thing that is 

subject to ownership and not classified as real property”). By defining a wall as 

“personal property” rather than “real property,” 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 errors, we are not confident appellant understood the 

nature of the offense of which he was charged and pleaded guilty. We therefore find 

a substantial basis in law and fact to question appellant’s plea to the Specification of 

Charge III. 

CONCLUSION

The findings of guilty of Charge III and its Specification are set aside and 

dismissed. The remaining findings of guilty are AFFIRMED. 

Reassessing the sentence on the basis of the errors noted, the entire record, 

and applying the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A. 

1986) and the factors set forth in United States v. Winckelmann, 73 M.J. 11, 15-16 

(C.A.A.F. 2013), we are confident the military judge would have adjudged the same 

sentence. 

There is no dramatic change in the 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. Appellant remains convicted of an 

assault consummated by a battery, absence without leave terminated by 

apprehension, and attempted larceny of military property. The res gestae of the 

assault offense demonstrates the aggravating conduct of appellant stabbing the wall 

with a knife during the attack on his pregnant girlfriend. Because appellant was 

tried by a judge alone, we are also more confident of the sentence the military judge 

would have imposed for the remaining offenses. Id. Finally, this court reviews the 

records of a substantial number of courts-martial involving larcenies, absences 

without leave, and assaults, and we have extensive experience with the level of 

sentences imposed for such offenses under various circumstances. See id.
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The sentence is AFFIRMED. All rights, privileges, and property, of which 

appellant has been deprived by virtue of that portion of the findings set aside by this 

decision, are ordered restored.

Judge KRAUSS and Judge PENLAND concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: