U.S. v. Edwards, 69 M.J. 375

Core Criminal Law Subjects: Crimes: Article 95 - Resistance, Flight, Breach of Arrest, and Escape Pre-2019 offenses

1. Article 95, UCMJ, provides that any person subject to the UCMJ 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 apprehension is the taking of a person into custody; the MCM 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; 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, RCM 305 (pretrial confinement); moreover, RCM 304(d) states that confinement is imposed by an order of competent authority by 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
2. whether an accused is guilty of escape from custody or escape from confinement under Article 95, UCMJ, logically depends upon the accused’s status at the time of the escape; in this case, appellant had been lawfully ordered into confinement by his company commander and physical restraint had been imposed, but he had not been placed in a confinement facility prior to his escape; confinement, however, is not effected by an order to confinement and the imposition of some restraint, but is effected by the actual imposition of confinement; confinement must be actually imposed to initiate confinement status; 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 is being escorted outside of a confinement facility, he has escaped from confinement; in this case, where appellant 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, but rather in custody, and his guilty plea to escape from confinement was not provident

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

1. an appellate court reviews 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; in doing so, it applies 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 appellant’s guilty plea