UNITED STATES, Appellee 

v. 

Tye L. EDWARDS, Private 

U.S. Army, Appellant 

No. 10-0481 

Crim. App. No. 20090257 

United States Court of Appeals for the Armed Forces 

Argued December 14, 2010 

Decided February 9, 2011 

ERDMANN, J., delivered the opinion of the court, in which 

EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined. 

Counsel 

For Appellant: Captain Kristin McGrory (argued); Colonel Mark 

Tellitocci, Lieutenant Colonel Imogene M. Jamison, Lieutenant 

Colonel Jonathan Potter, Major Peter Kageleiry, and Captain

Brent A. Goodwin (on brief); Major Timothy W. Thomas and Captain 

Todd Lindquist. 

For Appellee: Captain Nathan S. Mammen (argued); Colonel 

Michael E. Mulligan, Major Christopher B. Burgess, and Captain 

Stephen E. Latino (on brief). 

Military Judge: Patrick J. Parrish 

This opinion is subject to revision before final publication.
United States v. Edwards, No. 10-0481/AR 

2

Judge ERDMANN delivered the opinion of the court. 

 Private Tye L. Edwards entered guilty pleas to a number of 

offenses including escape from confinement in violation of 

Article 95, Uniform Code of Military Justice (UCMJ).1 A military 

judge sitting as a general court-martial found him guilty of all 

charges and sentenced him to eighteen months confinement and a 

bad-conduct discharge. In accord with the pretrial agreement, 

the convening authority approved four months of the confinement 

and the punitive discharge. The United States Army Court of 

Criminal Appeals (CCA) summarily affirmed the findings and the 

sentence. United States v. Edwards, No. ARMY 20090257 (A. Ct. 

Crim. App. Apr. 30, 2010). 

Whether an accused is guilty of escape from custody or 

escape from confinement logically depends upon the accused’s 

status at the time of the escape. Article 95, UCMJ, 10 U.S.C. § 

895 (2006). We granted review in this case to determine whether 

the military judge erred in accepting Edwards’ guilty plea to 

 

1

 In addition to the offense of escape from confinement, Edwards 

entered guilty pleas to the following offenses: failure to go 

his appointed place of duty; absence without leave (AWOL); 

willfully disobeying an officer; assaulting an officer; 

willfully disobeying a noncommissioned officer; assaulting a 

noncommissioned officer; wrongful use of marijuana; and unlawful 

entry, in violation of Articles 86, 90, 91, 112a, and 134, UCMJ. 

 
United States v. Edwards, No. 10-0481/AR 

3

escape from confinement.2 We hold that Edwards was in custody 

rather than confinement at the time of his escape and his guilty 

plea to escape from confinement was therefore not provident. 

Background

As a result of a series of misconduct incidents, Edwards 

was brought to meet with his company commander. His commander 

ordered him to surrender his military identification card to 

restrict his freedom of movement. Edwards refused and his 

commander instructed the company first sergeant to call the 

military police. Edwards then attempted to leave the company 

headquarters and after grabbing his commander and scuffling with 

three senior noncommissioned officers, he was eventually 

subdued. His company commander ordered him into pretrial 

confinement and he was placed in hand and leg irons. 

Prior to being taken to the confinement facility and prior 

to his pretrial confinement hearing, Edwards was taken to see a 

trial defense attorney. Once at the defense attorney’s office, 

Edwards’ shackles were removed while he met with his attorney. 

 

2

 We granted review of the following issue: 

Whether there is a substantial basis in law and fact to 

question Appellant’s plea to escape from confinement given 

that at the time of the alleged offense he was neither 

within a confinement facility nor under guard or escort 

after having been placed in a confinement facility. 

United States v. Edwards, 69 M.J. 243 (C.A.A.F. 2010) (order 

granting review). 
United States v. Edwards, No. 10-0481/AR 

4

After his defense attorney dismissed him to return to the 

adjacent waiting area, Edwards left the building without 

authorization. It was this “escape” that resulted in the charge 

of “escape from confinement” which Edwards now challenges.3

Following the entry of Edwards’ guilty pleas, the military 

judge conducted the providence inquiry. In reference to the 

offense of escape from confinement the military judge properly 

informed Edwards of the elements of the offense and then defined 

“confinement,” in part, as “the physical restraint of a person 

within a confinement facility or under guard or escort after 

having been placed in a confinement facility.” During the 

providence inquiry Edwards admitted that his company commander 

had ordered him into confinement and that she was authorized to 

do so. He further admitted that when he left the trial defense 

attorney’s office he had not been released from confinement.4

 

Discussion

 This court “review[s] 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. 

 

3

 Edwards remained AWOL until he was arrested for traffic 

violations over two weeks later. 

4

 The military judge did not question Edwards to ensure his 

understanding of the terms “confinement” and “confinement 

status” during the providence inquiry, nor did he note the 

conflict between his definition of “confinement” and Edwards’ 

explanation of his “escape” prior to being taken to a 

confinement facility. 
United States v. Edwards, No. 10-0481/AR 

5

Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “In doing so, 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. 

Article 95, UCMJ, provides that “[a]ny person subject to 

this chapter who . . . escapes from custody or confinement; 

shall be punished as a court-martial may direct.” While the 

UCMJ does not define custody, it does reference the term in 

Article 7, UCMJ, which provides that “[a]pprehension is the 

taking of a person into custody.” The Manual for Courts-Martial

(MCM), however, defines “custody” to be the: 

restraint of free locomotion imposed by lawful 

apprehension. The restraint may be physical or, once 

there has been a submission to apprehension or a 

forcible taking into custody, it may consist of 

control exercised in the presence of the prisoner by 

official acts or orders. Custody is temporary 

restraint intended to continue until other restraint 

(arrest, restriction, confinement) is imposed or the 

person is released. 

MCM pt. IV, para. 19.c(4)(a) (2008 ed). 

“Confinement” is defined by Article 9, UCMJ, as “the 

physical restraint of a person” and is further defined by the 

MCM to be physical restraint imposed under, inter alia, Rule for 

Courts-Martial (R.C.M.) 305 (pretrial confinement). MCM pt. IV, 

para. 19.c(5)(a). Moreover, R.C.M. 304(d) states that 

confinement is imposed by an order of competent authority “by 
United States v. Edwards, No. 10-0481/AR 

6

the delivery of a person to a place of confinement.” The UCMJ 

and the MCM establish a continuum from custody to other forms of 

restraint, i.e., arrest, restriction, and confinement. On 

several occasions over the years, this court has dealt with the 

question as to where an accused was located on this continuum 

when he escaped. 

In United States v. Ellsey, 37 C.M.R. 75, 78 (C.M.A. 1966), 

this court determined that custody and confinement are entirely 

different in nature. In Ellsey an accused who had been ordered 

into confinement was taken into custody for delivery to the 

confinement facility, but escaped before “delivery could be 

effected and confinement actually imposed upon him.” Id. at 79. 

Under those circumstances the court held that the proper offense 

to charge was escape from custody rather than escape from 

confinement. Id. In United States v. Felty, 12 M.J. 438 

(C.M.A. 1982), overruled on other grounds by United States v. 

Morton, 69 M.J. 12 (C.A.A.F. 2010), Felty had been placed in a 

correctional facility but later was taken out and escorted by a 

“chaser” to attend his pretrial confinement hearing before a 

magistrate. Following the hearing Felty misrepresented the 

magistrate’s decision to the chaser and informed the chaser that 

the magistrate had released him. When the two stopped for chow, 

Felty walked out the door. Id. at 439-40. He was subsequently 

charged with unauthorized absence and escape from custody. Id.
United States v. Edwards, No. 10-0481/AR 

7

at 440. The court noted that once Felty had been confined in 

the military confinement facility, he remained in a confinement 

status until released by a proper authority. Id. at 440-41. 

Under those circumstances the court held that Felty should have 

been charged with escape from confinement rather than escape 

from custody. Id. at 441. 

Before this court Edwards argues that since he was neither 

“within a confinement facility” nor “under guard or escort after 

having been placed in a confinement facility,” he was not in a 

confinement status at the time of his escape. He asserts that 

his conviction for escape from confinement must be set aside 

pursuant to this court’s decision in Ellsey. 

 The Government relies on the Army Court of Criminal Appeals 

decision in United States v. McDaniel, 52 M.J. 618 (A. Ct. Crim. 

App. 1999), and argues that once Edwards was lawfully ordered 

into confinement by his company commander and physical restraint 

imposed, he was in a confinement status for purposes of Article 

95, UCMJ. In McDaniel, the Army court held that this court’s 

decision in Felty, “blurred the distinction between confinement 

and custody.” Id. at 620. The Army court found no specific 

requirement in the MCM that a prisoner must be placed in a 

confinement facility in order to be in a “confinement” status. 

Id. Notwithstanding Ellsey, the Army court held that placement 
United States v. Edwards, No. 10-0481/AR 

8

in a confinement facility is unnecessary for the offense of 

escape from confinement under Article 95, UCMJ. Id. at 621. 

The issue as to whether “confinement” is effected by an 

order to confinement and the imposition of some restraint as 

urged by the Government, or by the actual imposition of 

confinement, was settled by Ellsey and we see no need to alter 

that holding. Ellsey held that confinement must be actually 

imposed to initiate confinement status, a holding that was not 

altered by Felty. Felty simply recognized that once an accused 

is placed in a confinement status, he is in that status until 

released by an authorized person. If an accused escapes while 

in a confinement status, even if he or she is being escorted 

outside of a confinement facility, he has escaped from 

confinement. Felty, 12 M.J. at 441-42. Ellsey remains good law 

and McDaniel, to the extent it is inconsistent with Ellsey, was 

wrongly decided. Edwards had not been placed in a confinement 

facility prior to his escape and his status remained that of 

“custody” rather than “confinement.”5

 Therefore his plea to 

escape from confinement was not provident. 

Conclusion

The United States Army Court of Criminal Appeals decision 

affirming Charge VI and its specification is reversed and Charge 

 

5

 We reserve for another day the issue, raised in McDaniel but 

not in this case, as to what constitutes a confinement facility 

for purposes of Article 95, UCMJ. 
United States v. Edwards, No. 10-0481/AR 

9

VI and its specification are dismissed. The remaining findings 

of guilt and the sentence are affirmed.