U.S. v. Phillippe, 63 M.J. 307

Core Criminal Law Subjects: Crimes: Article 86 - Absence without Leave Pre-2019 offenses

1. unauthorized absence can be terminated in five ways, including surrender to military authority; surrender occurs when a person presents himself to any military authority, whether or not a member of the same armed force, notifies that authority of his unauthorized absence status, and submits or demonstrates a willingness to submit to military control
2. unauthorized absence under Article 86, UCMJ, is not a continuing offense; the length of an unauthorized absence is the essential element in determining the legal punishment for the offense
3. 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; however, the ability to do so is premised on the ability of judge to determine from the record an inception date for each separate period of unauthorized absence; an inception date is necessary to establish the offense

Trial Stages: Merits: Guilty Pleas

1. if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea
2. even if an accused does not volunteer all the facts necessary to establish a defense, if he sets up matter raising a possible defense, then the military judge is obligated to make further inquiry to resolve any apparent ambiguity or inconsistency; only after the military judge has made this inquiry can he then determine whether the apparent inconsistency or ambiguity has been resolved; however, to answer this question, there must be sufficient information on the record from which to arrive at this conclusion
3. Article 45, UCMJ, manifests a congressional intent that guilt be acknowledged consistently from the pleas through the sentence; when, either during the plea inquiry or thereafter, and in the absence of prior disavowals, circumstances raise a possible defense, a military judge has a duty to inquire further to resolve the apparent inconsistency
4. accused’s plea of guilty to unauthorized absence from July 24, 2001 to March 31, 2004 was improvident with respect to the period after September 11, 2001, where the accused raised a matter inconsistent with his plea in his unsworn statement during sentencing when he related an apparent attempt to surrender himself at an Air Force base on or about September 11, 2001, but the military judged failed to make further inquiry to determine if the apparent inconsistency could be resolved; there were insufficient facts to determine when appellant initiated a subsequent period of unauthorized absence

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

1. a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion; pleas of guilty should not be set aside on appeal unless there is a substantial basis in law and fact for questioning the guilty plea
2. once a military judge has accepted a plea as provident and has entered findings based on it, an appellate court will not reverse that finding and reject the plea unless it finds a substantial conflict between the plea and the accused’s statements or other evidence on the record; a mere possibility of such a conflict is not a sufficient basis to overturn the trial results