United States v. Captain RICARDO K. GONZALES

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before SCHENCK(, HOFFMAN, and WALBURN Appellate Military Judges UNITED STATES, Appellee v. Captain RICARDO K. GONZALES United States Army, Appellant ARMY 20030903 Headquarters, XVIII Airborne Corps and Fort Bragg Patrick J. Parrish, Military Judge Colonel Mark A. Rivest, Staff Judge Advocate For Appellant: Major Sean F. Mangan, JA (argued); Lieutenant Colonel Steven C. Henricks, JA; Major Billy B. Ruhling, JA; Captain Ryan M. Suerth, JA (on brief). For Appellee: Captain Michael G. Pond, JA (argued); Colonel John W. Miller, II, JA; Colonel John W. Miller, JA; Major Elizabeth Marotta, JA; Captain Michael C. Friess, JA; Captain Michael G. Pond, JA (on brief). 17 June 2008 --------------------------------- SUMMARY DISPOSITION --------------------------------- Per Curiam: Appellant attempted to collaterally attack his court-martial conviction by filing a Writ of Habeas Corpus in the United States District Court for the District of Kansas. On 15 February 2005, appellant filed in federal court a “Motion to Notify the Court of Petitioner’s Declaration to Exercise Article 69(b) of the UCMJ and Motion to Compel the Court to Issue the Writ in the Interests of Judicial Economy;” and a “Motion to Declare the Exercise of Article 69(b) of the UCMJ.” Appellant then stated his intent “to withdraw from Articles 66 and 67 appellate review by the Army Court of Criminal Appeals and the Court of Appeals for the Armed Forces.” Appellant further stated “Petitioner is withdrawing from military appellate court jurisdiction and is exercising Article 69(b) of the UCMJ. Under Article 69(b) and the provisions of Title 10, United States Code, Section 869, petitioner will be applying to The Judge Advocate General of the Army for relief.” After appellant’s district court petition was dismissed without prejudice he appealed to the United States Court of Appeals for the Tenth Circuit. Gonzales v. Cremin, 167 Fed. Appx. 10, 2006 U.S. App. LEXIS 505, * 1-2 (10th Cir. 9 Jan, 2006). The Tenth Circuit affirmed the lower court’s dismissal on 29 September 2005. Id. Despite his representations to the federal courts, appellant did not, in fact, ever formally waive his appellate rights under Articles 66 and 67, UCMJ. We find appellant’s actions at best, misguided, and at worse, intentionally misleading and manipulative. Although appellant’s actions could arguably substantiate a finding of de facto waiver of his right to review by this court, we decline to decide that his right to review has been waived and, therefore, have reviewed his case pursuant to Article 66, UCMJ. Appellant asserts numerous assignments of error. Two merit brief discussion, but no relief. Appellant alleges his guilty pleas to willfully damaging military property (the Specification of Charge IV), and willfully and wrongfully damaging non-military property (the Specification of Charge V), were improvident. The government, in its brief to this court, conceded that appellant’s plea to willfully damaging military property was improvident, recommending that this court affirm the lesser included offense of wrongful damage to military property through neglect. With regard to appellant’s plea to willfully damaging a personally-owned motorcycle, the government conceded the plea was improvident and recommended dismissing the charge. We heard oral argument on this issue. We refuse to accept the government’s concessions and find appellant’s pleas, as accepted by the military judge, provident. We find appellant’s admissions during his providency inquiry amply support a finding of guilt. We do not, therefore, find a substantial basis in law and fact for questioning his pleas. United States v. Adams, 63 M.J. 223, 226 (C.A.A.F. 2006) (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). In spite of the clear admissions by appellant that he intentionally damaged by fire a building, generator set and motorcycle, he now argues he only specifically intended to burn his own truck. Therefore, he asserts his admissions to damaging these other items are legally and factually deficient. Appellant’s argument flies in the face of the facts admitted at trial and the law.[1] Additionally, we view several of appellant’s responses attempting to undercut his intentional actions to be an effort to minimize his criminal liability.[2] Appellant also asserts the military judge improperly announced a finding of guilty to Specification 1 of Additional Charge IV. We disagree. Even assuming error we do not find appellant was misled or that he suffered material prejudice to a substantial right. In United States v. Williams, 66 M.J. 101 (C.A.A.F. 2008), the accused, in accordance with a pretrial agreement, entered pleas of guilty to three offenses. The military judge accepted the pleas, entered guilty findings with respect to two of the offenses, but omitted any finding as to one of the specifications. There was no objection at trial or in any post-trial processing. Our superior court concluded the accused was not prejudiced by this omission. We have considered appellant’s remaining assignments of error, and the voluminous Grostefon matters personally raised by appellant, and find them to be without merit. Accordingly, the findings of guilty and the sentence are affirmed. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court ----------------------- ( Senior Judge Schenck took final action on this case prior to her retirement. [1] We note, without deciding, that appellant’s admissions during his providency inquiry may have supported a finding of guilt to a violation of Article 126, UCMJ (arson), under the closely-related offense doctrine. See United States v. Epps, 25 M.J. 319, 323 (C.M.A. 1987) (affirming guilty plea to larceny because the providence inquiry established guilt to the closely-related offense of receiving stolen property). [2] It is a common reaction of an accused who tenders a guilty plea to seek refuge in a variety of forms of rationalization designed to minimize or temper the magnitude of his culpability. United States v. Young, 2 M.J. 472, 476-477 (C.M.R. 1975).