UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
JOHNSON, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 JUEL R. BIZZELL
United States Army, Appellant
ARMY 20100898
Headquarters, United States Army Aviation and Missile Command
Stephen E. Castlen, Military Judge
Colonel Craig A. Meredith, Staff Judge Advocate
For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Laura R. Kesler, JA; Captain Meghan M. Poirier, JA (on brief).
For Appellee: Major Amber J. Williams, JA; Major Ellen Jennings, JA; Major Mary
E. Braisted, JA (on brief).
27 April 2012
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SUMMARY DISPOSITION
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BURTON, Judge:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of five specifications of larceny, one specification of obtaining
services under false pretenses, and one specification of impeding an investigation in
violation of Articles 121 and 134, Uniform Code of Military Justice, 10 U.S.C. §§
921 and 934 (2006) [hereinafter UCMJ], respectively. The military judge sentenced
appellant to a bad-conduct discharge and confinement for five months, and the
convening authority approved the adjudged sentence.
This case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises two assignments of error through counsel, one of which merits
discussion. In addition, we note that Specifications 1 and 2 of Charge II, setting
forth violations of Article 134, UCMJ, do not expressly allege a terminal element.
We have considered the Article 134 charge and its specifications. In light of United
BIZZELL – ARMY 20100898
States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), and United States v. Nealy, 71 M.J. 73
(C.A.A.F. 2012), we find no prejudice to the appellant and no relief warranted.
We have also considered appellant’s assignments of error, the government’s
answer and the record of trial. We find the military judge failed to resolve a matter
raised by appellant during the providence inquiry that is inconsistent with his plea
relative to the victim of the alleged larceny. Accordingly, we will take corrective
action in our decretal paragraph.
BACKGROUND
Appellant stole the Automated Teller Machine (ATM) card belonging to his
roommate, Private (PVT) DM, and withdrew $400 from a Redstone Federal Credit
Union ATM on four separate occasions. Appellant was thereafter charged with, and
pled guilty to, both stealing the ATM card from PVT DM and stealing $1600 from
Redstone Federal Credit Union. Appellant was originally charged in Specifications
2, 3, 4, and 5 of Charge I with larceny from PVT (E-1) DM, Marshall & Isley Bank,
and Redstone Federal Credit Union. Prior to arraignment the government moved to
amend Specifications 2 through 5 of Charge I to redact the words “PVT (E-1), D.M.,
Marshal & Isley Bank” and the word “and.” The defense did not object and the
military judge granted the motion. The parties did not enter into a stipulation of
fact.
LAW AND DISCUSSION
For the reasons set forth below, we find a substantial basis in law and fact for
questioning the military judge’s acceptance of appellant’s guilty plea to
Specifications 2, 3, 4 and 5 of Charge I. United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991); see also United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.
2008). In considering the adequacy of guilty pleas, we consider the entire record to
determine whether the requirements of Article 45, UCMJ, Rule for Courts-Martial
[hereinafter R.C.M. 910], and United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R.
247 (1969), have been met. United States v. Jordan, 57 M.J. 236, 239 (C.A.A.F.
2002).
If an accused sets up a matter inconsistent with his guilty plea at any time
during the proceeding, the military judge must resolve the inconsistency or reject the
guilty plea. Id. (citing UCMJ, art. 45(a) and R.C.M. 910(h)(2); case citations
omitted). When stating the elements of the offense, and in accord with the amended
specifications, the military judge identified Redstone Federal Credit Union as the
victim. The colloquy between the military judge and appellant regarding the factual
basis for appellant’s guilty plea, however, raises an inconsistency. The appellant is
charged with larceny from Redstone Federal Credit Union; however, the appellant
and the military judge repeatedly referred to PVT DM as the victim of the larcenies
charged in Specifications 2 through 5 of Charge I. In reference to Specification 2,
2
BIZZELL – ARMY 20100898
the military judge asked appellant, “[a]nd that was Private M’s ATM card and the
cash came out of his account that you accessed with his PIN number?” In reference
to Specifications 3, 4 and 5, the military judge specifically asked appellant, “did you
have any intent to ever give it back to PVT M?”; “did you have any intent to return
that money to him at any time?”; and “did you intend to permanently deprive PVT M
of that money?”
At no point during the providence inquiry did the military judge discuss with
appellant whether the property belonged to the Redstone Federal Credit Union and
what intent, if any, appellant had with regard to depriving Redstone Federal Credit
Union of any monies. At the conclusion of the inquiry, the military judge again
stated the elements and identified Redstone Federal Credit Union as the victim. The
military judge went further and asked appellant, “[a]nd regarding specification 2, 3,
4 and 5 do you also admit that your intent was to deprive PVT M of that money as
well?” Appellant’s affirmative responses are insufficient to establish that he
understood that Redstone Federal Credit Union, not PVT DM, was in fact the victim
of the larcenies. This inconsistency in the factual basis for appellant’s guilty plea
was not reconciled during the Care inquiry and raises a substantial basis in law and
fact to question the military judge’s acceptance of appellant's guilty plea to
Specifications 2, 3, 4, and 5 of Charge I. See Care, 40 C.M.R. at 253; see also
R.C.M. 910(e).
CONCLUSION
The findings of guilty of Specifications 2, 3, 4, and 5 of Charge I are set
aside. The remaining findings of guilty are affirmed. After setting aside the
findings of Specifications 2, 3, 4, and 5 of Charge I, we find that the sentencing
landscape has dramatically changed. See United States v. Sales, 22 M.J. 305
(C.M.A. 1986) and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006) (Baker, J.,
concurring) (additional citations omitted). The record of trial is returned to The
Judge Advocate General for submission to the same or a different convening
authority. That convening authority may order a rehearing on Specifications 2, 3, 4,
and 5 of Charge I and the sentence. If the convening authority determines that a
rehearing on those charges is impracticable, he may dismiss the charges and order a
rehearing on sentence only.
Senior Judge JOHNSON and Judge KRAUSS concur.
FOR THE COURT:
FOR THE COURT:
JOANNE P. TETREAULT ELDRIDGE
Deputy ClerkP.
JOANNE of Court
TETREAULT EL
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