U.S. v. Phillips, 74 M.J. 20

Military Justice Personnel: Military Judge: Discretion

1. a military judge has significant discretion in deciding whether to accept an accused’s guilty pleas, and appellant bears the burden of establishing that the military judge abused that discretion, i.e., that the record shows a substantial basis in law or fact to question the plea

Core Criminal Law Subjects: Crimes: Article 90 - Assaulting or Willfully Disobeying Superior Commissioned Officer Pre-2019 offenses

1. the ultimate offense doctrine prohibits the escalation in severity of minor offenses by charging them as violations of orders or the willful disobedience of superiors; as it applies to the offense of disobeying a superior commissioned officer under Article 90, UCMJ, taken from the President’s language in MCM pt. IV, ¶ 14.c.(2)(a)(iv), the ultimate offense doctrine provides that disobedience of an order which has for its sole object the attainment of some private end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable under Article 90
2. in this case, appellant’s company commander personally gave appellant a written order restricting him to the confines of the military installation; in violation of the order, appellant drove off the installation to visit and reside with his girlfriend; during the providence inquiry, appellant stated that he was guilty because he was residing off-post when he was clearly given a command to stay on post and not break restriction; in determining the ultimate offense, the environment in which the order was given must be considered; appellant had two lengthy absences, totaling more than three years, one of which was admittedly undertaken to impede court-martial proceedings, and a civilian conviction on two counts for exposing himself to a child; the order was issued in furtherance of a proper military function; under the circumstances of this case, appellant failed to establish that his commander gave the order of restriction solely to improperly escalate the punishment; therefore, the ultimate offense doctrine had no application, and appellant failed to establish a substantial basis in law or fact to question his guilty pleas
3. to the extent that prior jurisprudence suggests that the ultimate offense doctrine for Article 90 may be more expansive than the President’s language in MCM pt. IV, ¶ 14.c.(2)(a)(iv), by testing to see whether the order was given with the full authority of his office, thereby lifting it above the common ruck, it is overruled (overruling US v. Loos, 4 CMA 478, 16 CMR 52 (1954))
4. the distinction between an Article 90 disobedience of an order offense and an Article 134 breaking restriction offense does not require a Hartman (69 MJ 467 (CAAF 2011)) discussion at the plea inquiry where a military judge must explain to an accused during the guilty plea inquiry the difference between conduct that was constitutionally protected and conduct that could be legitimately punished
5. the maximum punishment for disobeying the order of a superior commissioned officer in other than time of war is a dishonorable discharge, confinement for five years, and forfeiture of all pay and allowances

Core Criminal Law Subjects: Crimes: Article 134 – Restriction, Breaking Pre-2019 offenses

1. breaking restriction is a minor offense endorsed by the President which carries a maximum sentence of confinement for one month and forfeiture of two-thirds pay per month for one month
2. the distinction between an Article 90 disobedience of an order offense and an Article 134 breaking restriction offense does not require a Hartman (69 MJ 467 (CAAF 2011)) discussion at the plea inquiry where a military judge must explain to an accused during the guilty plea inquiry the difference between conduct that was constitutionally protected and conduct that could be legitimately punished

Trial Stages: Merits: Guilty Pleas

1. a military judge has significant discretion in deciding whether to accept an accused’s guilty pleas, and appellant bears the burden of establishing that the military judge abused that discretion, i.e., that the record shows a substantial basis in law or fact to question the plea
2. in this case, appellant’s company commander personally gave appellant a written order restricting him to the confines of the military installation; in violation of the order, appellant drove off the installation to visit and reside with his girlfriend; during the providence inquiry, appellant stated that he was guilty because he was residing off-post when he was clearly given a command to stay on post and not break restriction; in determining the ultimate offense, the environment in which the order was given must be considered; appellant had two lengthy absences, totaling more than three years, one of which was admittedly undertaken to impede court-martial proceedings, and a civilian conviction on two counts for exposing himself to a child; the order was issued in furtherance of a proper military function; under the circumstances of this case, appellant failed to establish that his commander gave the order of restriction solely to improperly escalate the punishment; therefore, the ultimate offense doctrine has no application, and appellant has failed to establish a substantial basis in law or fact to question his guilty pleas
3. the distinction between an Article 90 disobedience of an order offense and an Article 134 breaking restriction offense does not require a Hartman (69 MJ 467 (CAAF 2011)) discussion at the plea inquiry where a military judge must explain to an accused during the guilty plea inquiry the difference between conduct that was constitutionally protected and conduct that could be legitimately punished

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

1. a military judge has significant discretion in deciding whether to accept an accused’s guilty pleas, and appellant bears the burden of establishing that the military judge abused that discretion, i.e., that the record shows a substantial basis in law or fact to question the plea