U.S. v. Nance, 67 M.J. 362

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. Article 45(a), UCMJ, requires military judges to reject a plea of guilty if it appears that an accused has entered the plea of guilty improvidently; to prevent the acceptance of improvident pleas, the military judge has a duty to establish, on the record, the factual bases that establish that the acts or omissions of the accused constitute the offense or offenses to which he is pleading guilty; if the military judge fails to establish that there is an adequate basis in law and fact to support the accused’s plea during the providence inquiry, the plea will be improvident
2. during the providence inquiry, the military judge is required to elicit from the accused factual circumstances that objectively support each element of the charged offense to which a plea is entered; determining whether those factual circumstances establish conduct that is or is not prejudicial to good order and discipline is a legal conclusion that remains within the discretion of the military judge in guilty plea cases

Military Justice Personnel: Military Judge: Discretion

1. a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion; a military judge abuses this discretion if he fails to obtain from the accused an adequate factual basis to support the plea - an area in which an appellate court affords significant deference
2. during the providence inquiry, the military judge is required to elicit from the accused factual circumstances that objectively support each element of the charged offense to which a plea is entered; determining whether those factual circumstances establish conduct that is or is not prejudicial to good order and discipline is a legal conclusion that remains within the discretion of the military judge in guilty plea cases

Core Criminal Law Subjects: Crimes: Article 134 - General Article Pre-2019 offenses

1. in a guilty plea to wrongful use of coricidin cough and cold medicine as conduct prejudicial to good order and discipline under Article 134, UCMJ, the factual circumstances as revealed by the accused himself objectively supported his plea where appellant admitted that he repeatedly gathered with other airmen to abuse the medicine with the intent of getting high and that this conduct would affect military readiness; in a stipulation of fact, appellant admitted that he met on five occasions with four fellow airmen, including one of lower rank, and one enlisted member of the U.S. Army to abuse the medicine with the intent to become intoxicated, and that in addition to making him high, abusing the medicine impaired his motor skills and sometimes made him pass out or enter into a dream-like state from which he emerged disoriented; appellant repeated the same facts during the plea inquiry, stating that he experienced nausea, blackouts, and extremely impaired motor skills after taking the medicine; these facts legally and factually supported the prejudicial to good order and discipline element of the charged violation of Article 134, UCMJ

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. in a guilty plea to wrongful use of coricidin cough and cold medicine as conduct prejudicial to good order and discipline under Article 134, UCMJ, the factual circumstances as revealed by the accused himself objectively supported his plea where appellant admitted that he repeatedly gathered with other airmen to abuse the medicine with the intent of getting high and that this conduct would affect military readiness; in a stipulation of fact, appellant admitted that he met on five occasions with four fellow airmen, including one of lower rank, and one enlisted member of the U.S. Army to abuse the medicine with the intent to become intoxicated, and that in addition to making him high, abusing the medicine impaired his motor skills and sometimes made him pass out or enter into a dream-like state from which he emerged disoriented; appellant repeated the same facts during the plea inquiry, stating that he experienced nausea, blackouts, and extremely impaired motor skills after taking the medicine; these facts legally and factually supported the prejudicial to good order and discipline element of the charged violation of Article 134, UCMJ

Trial Stages: Merits: Guilty Pleas

1. Article 45(a), UCMJ, requires military judges to reject a plea of guilty if it appears that an accused has entered the plea of guilty improvidently; to prevent the acceptance of improvident pleas, the military judge has a duty to establish, on the record, the factual bases that establish that the acts or omissions of the accused constitute the offense or offenses to which he is pleading guilty; if the military judge fails to establish that there is an adequate basis in law and fact to support the accused’s plea during the providence inquiry, the plea will be improvident
2. in a guilty plea to wrongful use of coricidin cough and cold medicine as conduct prejudicial to good order and discipline under Article 134, UCMJ, the factual circumstances as revealed by the accused himself objectively supported his plea where appellant admitted that he repeatedly gathered with other airmen to abuse the medicine with the intent of getting high and that this conduct would affect military readiness; in a stipulation of fact, appellant admitted that he met on five occasions with four fellow airmen, including one of lower rank, and one enlisted member of the U.S. Army to abuse the medicine with the intent to become intoxicated, and that in addition to making him high, abusing the medicine impaired his motor skills and sometimes made him pass out or enter into a dream-like state from which he emerged disoriented; appellant repeated the same facts during the plea inquiry, stating that he experienced nausea, blackouts, and extremely impaired motor skills after taking the medicine; these facts legally and factually supported the prejudicial to good order and discipline element of the charged violation of Article 134, UCMJ
3. although the use of leading questions that do no more than elicit “yes” and “no” responses during the providence inquiry is disfavored, a military judge’s use of leading questions does not automatically result in an improvident plea; rather, the totality of the circumstances of the providence inquiry are examined, including the stipulation of fact, as well as the relationship between the accused’s responses to leading questions and the full range of the accused’s responses during the plea inquiry
4. in this case, the military judge’s use of leading questions during the providence inquiry did not transform what would otherwise be a provident plea to a charge of conduct prejudicial to good order and discipline with a sufficient basis in law and fact into an improvident one, where the military judge only used leading questions to amplify three points that had already been established on the record, the objective facts set forth in the stipulation of fact, the objective facts already elicited from appellant earlier in the plea inquiry, and appellant’s explicit agreement that his conduct was prejudicial to good order and discipline in the armed forces
5. during the providence inquiry, the military judge is required to elicit from the accused factual circumstances that objectively support each element of the charged offense to which a plea is entered; determining whether those factual circumstances establish conduct that is or is not prejudicial to good order and discipline is a legal conclusion that remains within the discretion of the military judge in guilty plea cases

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; a military judge abuses this discretion if he fails to obtain from the accused an adequate factual basis to support the plea - an area in which an appellate court affords significant deference
2. although the use of leading questions that do no more than elicit “yes” and “no” responses during the providence inquiry is disfavored, a military judge’s use of leading questions does not automatically result in an improvident plea; rather, the totality of the circumstances of the providence inquiry are examined, including the stipulation of fact, as well as the relationship between the accused’s responses to leading questions and the full range of the accused’s responses during the plea inquiry