UNITED STATES, Appellee
v.
Bryce M. PHILLIPS, Private
U.S. Army, Appellant
No. 14-0199
Crim. App. No. 20120585
United States Court of Appeals for the Armed Forces
Argued October 20, 2014
Decided January 6, 2015
STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., and ERDMANN, RYAN, and OHLSON, JJ., joined.
Counsel
For Appellant: Captain Patrick A. Crocker (argued); Colonel
Kevin M. Boyle and Captain Aaron R. Inkenbrandt (on brief);
Lieutenant Colonel Jonathan F. Potter, Major Amy E. Nieman, and
Captain Robert N. Michaels.
For Appellee: Captain Daniel M. Goldberg (argued); Colonel John
P. Carrell and Lieutenant Colonel James L. Varley (on brief);
Captain Samuel Gabremariam.
Military Judges: Mark A. Bridges and Craig S. Denney
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Phillips, No. 14-0199/AR
Judge STUCKY delivered the opinion of the Court.
A military judge accepted Appellant’s unconditional guilty
plea and convicted him, inter alia, of disobeying the order of
his superior commissioned officer restricting him to the
confines of the military installation. We granted review to
consider whether the military judge should have rejected the
guilty pleas because the ultimate offense was breaking
restriction, a substantially less serious offense. We hold that
there is no substantial basis in law or fact to question
Appellant’s guilty pleas.
I. Posture of the Case
In a pretrial agreement, the convening authority agreed to
refer Appellant’s case to a special court-martial and to
disapprove any adjudged confinement in excess of ten months, in
exchange for Appellant’s agreement to waive all waivable motions
and plead guilty to absence without leave, disobeying the order
of his superior commissioned officer, and using cocaine.
Articles 86, 90, 112a, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 886, 890, 912a (2012). The military judge accepted
Appellant’s guilty pleas and sentenced him to a bad-conduct
discharge and confinement for nine months. The convening
authority approved the sentence. A panel of the United States
Army Court of Criminal Appeals (CCA) set aside the conviction
for disobeying the order of his superior commissioned officer
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under the ultimate offense doctrine but affirmed the approved
sentence. United States v. Phillips, No. 20120585, 2013 CCA
LEXIS 779, at *2–*4, 2013 WL 5402231, at *1 (A. Ct. Crim. App.
Sept. 23, 2013). The CCA granted the Government’s motion for
reconsideration and suggestion for reconsideration en banc.
United States v. Phillips, No. 20120585 (A. Ct. Crim. App. Nov.
8, 2013) (order). Sitting en banc, the CCA held there was
nothing in the plea inquiry that would provide “a substantial
basis in law and fact to reject appellant’s plea of guilty,” and
affirmed the approved findings and sentence. United States v.
Phillips, 73 M.J. 572, 574 (A. Ct. Crim. App. 2014) (en banc).
II. Background
Appellant absented himself from his unit, which he knew was
about to deploy, from about February 20, 2008, until March 3,
2010, when he turned himself in to military control. After
returning to his unit, Appellant used cocaine in his barracks
room. Appellant was charged with desertion and possession and
use of cocaine. After arraignment, and at approximately the
date his trial was scheduled to begin (November 8, 2010),
Appellant again absented himself from his unit. In the
stipulation of fact accompanying his guilty plea, Appellant
admitted that, among other reasons, he deserted to “impede the[]
criminal proceedings.” During this second absence, Appellant
was incarcerated by civilian authorities after being convicted
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of two misdemeanor counts of exposing his genitals to a child.
Appellant returned to military control for the second time on
about March 2, 2012.
On March 14, 2012, Appellant’s company commander personally
gave Appellant a written order restricting him to the confines
of the military installation. Appellant signed an
acknowledgment that he received the order. On about April 11,
2012, in violation of the order, Appellant drove off the
installation to visit and reside with his girlfriend.
Consistent with his pretrial agreement, Appellant pled
guilty unconditionally to the charge and specification alleging
that he disobeyed the order of his superior commissioned
officer.
III. Discussion
This Court grants a military judge significant discretion
in deciding whether to accept an accused’s guilty pleas. United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). The
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. United
States v. Finch, 73 M.J. 144, 148 (C.A.A.F. 2014).
The ultimate offense doctrine has a lengthy military
history. See William Winthrop, Military Law and Precedents, 573
(2d ed., Government Printing Office 1920) (1895). It prohibited
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the escalation in severity of minor offenses “by charging them
as violations of orders or the willful disobedience of
superiors.” United States v. Hargrove, 51 M.J. 408, 409
(C.A.A.F. 1999) (per curiam).
Since enactment of the UCMJ, the President has recognized
the ultimate offense doctrine as it applies to the offense of
disobeying a superior commissioned officer under Article 90,
UCMJ: “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].” Manual for Courts-Martial, United States (MCM)
ch. XXVIII, ¶ 169.b. (1951 ed.); accord MCM pt. IV,
¶ 14.c.(2)(a)(iv) (2012 ed.). In a footnote to the Table of
Maximum Punishments, the President noted that the maximum
punishment for failing to obey a lawful order under Article 92,
UCMJ, 1 did not apply in those cases “wherein the accused is found
guilty of an offense which . . . is specifically listed
elsewhere in [the] table.” 2 MCM ch. XXV, ¶ 127.c. n.5 (1951
ed.). This Court interpreted both of these provisions to permit
the escalated punishments where the superior officer’s order was
1
Originally 50 U.S.C. § 686 (1950), now 10 U.S.C. § 892 (2012).
2
Similar language was contained in subsequent MCMs but is not
part of the current MCM. Compare MCM pt. IV, ¶ 16.e. Note (2008
ed.), with MCM pt. IV, ¶ 16.e. (2012 ed.).
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made “with the full authority of his office, [thereby lifting]
it above the common ruck.” United States v. Loos, 4 C.M.A. 478,
480, 16 C.M.R. 52, 54 (1954) (Article 92, UCMJ); see also United
States v. Ranney, 67 M.J. 297, 300 (C.A.A.F. 2009) (Article 90,
UCMJ); United States v. Byers, 40 M.J. 321, 323 (C.M.A. 1994)
(Article 90, UCMJ).
Appellant now argues that his conviction for disobeying his
superior commissioned officer is an unwarranted escalation in
the severity of what is really the minor offense of breaking
restriction. The maximum punishment for disobeying the order of
a superior commissioned officer in other than time of war
(Article 90, UCMJ), is a dishonorable discharge, confinement for
five years, and forfeiture of all pay and allowances. MCM pt.
IV, ¶ 14.(e)(2) (2012 ed.). Breaking restriction is a minor
offense endorsed by the President (Article 134, UCMJ, 10 U.S.C.
§ 934 (2012)), which carries a maximum sentence of confinement
for one month and forfeiture of two-thirds pay per month for one
month. MCM, pt. IV, ¶ 102.e. (2012 ed.).
During the plea inquiry, the military judge listed the
elements of the offense of disobeying the order of a superior
commissioned officer, defined statutory terms, and explained the
nature of the offense. His explanation of terms included the
following:
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“Willful disobedience” means an intentional
defiance of authority. A superior commissioned
officer includes the commanding officer of you, even
if the officer is inferior in rank to you. A superior
commissioned officer also includes any other
commissioned officer of the same armed force as you
who is superior in rank and not inferior in command to
you.
The command must be a lawful command. The
command is illegal if it is unrelated to military duty
and its sole purpose is to accomplish some private end
that is arbitrary and unreasonable and/or if it is
given for the sole purpose of increasing the
punishment for an offense which is expected you may
commit. As long as the command is understandable, the
form of the command the method by which the command
was communicated to you is not important. The
combination, however, must amount to a command from
your superior commissioned officer that is directly
personal -- personally, to you -- directed personally
to you. You must know that it is from your superior
commissioned officer.
Emphasis added.
The military judge then asked Appellant why he thought he
was guilty. Appellant said: “Because I was residing off post
when I was clearly given a command to stay on post and not break
restriction, sir.”
In determining the “ultimate offense,” we consider the
environment in which the order was given. United States v.
Landwehr, 18 M.J. 355, 357 (C.M.A. 1984). 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
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military function. See id. We conclude that, under the
circumstances of this case, Appellant failed to establish that
his commander gave the order of restriction solely to improperly
escalate the punishment. Furthermore, to the extent our
previous 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. 3 Loos, 4 C.M.A. at 480, 16 C.M.R. at 54.
We bid farewell to that colorfully stated, unclear, standard and
rely solely on that set out in the MCM. MCM pt. IV,
¶ 14.c.(2)(a)(iv). In this case, 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.
Appellant also asserts that the military judge failed
during the plea inquiry to properly advise him of the nature of
the offense and ensure that Appellant established a factual
basis for his guilty plea. Citing United States v. Castellano,
72 M.J. 217, 222 (C.A.A.F. 2013), and United States v. Hartman,
69 M.J. 467, 468 (C.A.A.F. 2011), Appellant alleges that the
3
The application of the ultimate offense doctrine to Article 92,
UCMJ, is not currently before us.
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difference between the offenses of disobeying the order of a
superior commissioned officer and breaking restriction amounts
to “an ‘element’ or ‘ingredient’ of the charged offense,” that
the military judge was required to discuss with Appellant.
Castellano and Hartman are inapposite. Both cases involved
the military sodomy statute, Article 125, UCMJ, 10 U.S.C. § 925
(2012), that, on its face, prohibited both consensual and
nonconsensual sodomy. Castellano, 72 M.J. at 218; Hartman, 69
M.J. at 467. This Court recognized that application of the
sodomy statute to sexual activity between consenting adults
raised constitutional questions. Hartman involved the failure
of the military judge to explain to an accused during a guilty
plea inquiry the difference between conduct that was
constitutionally protected and conduct that could be
legitimately punished. 69 M.J. at 468-69. Castellano concerned
the failure of the military judge to instruct court members on
the difference between constitutionally protected conduct and
that which is subject to criminal sanction. 72 M.J. at 222–23.
There is no such constitutional issue in this case, and thus
nothing that would establish a substantial basis in law or fact
to question Appellant’s plea. The distinction between an
Article 90 and an Article 134 offense does not require a Hartman
discussion at the plea inquiry.
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IV. Judgment
The judgment of the United States Army Court of Criminal
Appeals is affirmed.
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