U.S. v. Pinero, 60 M.J. 31

Trial Stages: Merits: Guilty Pleas

1. appellant was charged with and pleaded guilty to a 53-day period of unauthorized absence; however, appellant testified, and the military judge concluded, that he returned to military control and authority for five hours at some point during this period of unauthorized absence before initiating a second period of unauthorized absence; termination was not merely a “possible” defense here — the judge secured a factual basis establishing that appellant was, for a five-hour period, not guilty of unauthorized absence; as a result, the record of trial demonstrates a substantial basis in law and fact to question appellant’s plea to a 53-day period of unauthorized absence
2. the military justice system takes particular care to test the validity of guilty pleas because the facts and the law are not tested in the crucible of the adversarial process; further, there may be subtle pressures inherent to the military environment that may influence the manner in which servicemembers exercise (and waive) their rights; the providence inquiry and a judge’s explanation of possible defenses are established procedures to ensure servicemembers knowingly and voluntarily admit to all elements of a formal criminal charge
3. we are cognizant that in guilty-plea cases the quantum of proof is less than that required at a contested trial; before accepting a plea, due process requires a military trial judge to question the accused to make clear the basis for a determination by the military judge or president whether the acts or the omissions of the accused constitute the offense or offenses to which he is pleading guilty; a plea of not guilty must be entered where a substantial indication of direct conflict between the accused’s plea and his following statements arises
4. where an accused’s responses during the providence inquiry suggest a possible defense to the offense charged, the trial judge is well advised to clearly and concisely explain the elements of the defense in addition to securing a factual basis to assure that the defense is not available; also, in a guilty plea case, inconsistencies and apparent defenses must be resolved by the military judge or the guilty pleas must be rejected
5. during a providence inquiry into a charged unauthorized absence period, having found that appellant was under military control and custody and not absent on a date during that charged absence, the military judge must resolve any conflicting facts so the correct duration could be determined and counsel could decide how to proceed regarding the remainder of the charged period
6. a military judge may find multiple absences within a single charged period so long as the maximum authorized punishment does not exceed that for the longer period
7. a factual interruption in a continuous period of unauthorized absence cannot be overlooked by a court where such interruption changes the qualitative nature of the offense and the punitive exposure
8. whether there is incentive to do so or not, a servicemember cannot plead guilty to an offense he did not commit

Trial Stages: Appeals: Harmless / Prejudicial Error

1. acceptance of appellant’s plea to a longer period of absence than he was in fact guilty of may prove to be harmless, but it was still error to accept the plea and we should not conflate that which is harmless with that which is de minimis in our analysis

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. guilty pleas are rejected on appellate review only when the record of trial shows a substantial basis in law and fact for questioning the plea