United States v. Coleman

BAUM, Chief Judge:

Appellant has assigned as error an issue raised and resolved against him at trial in a motion to suppress a pretrial statement. In this regard, unconditional pleas of guilty are considered to waive further litigation of issues such as this one. R.C.M. 910 and M.R.E. 304(d)(5), Manual for Courts-Martial, 1984. Appellant contends, however, that the following exchange at trial, while lacking the express government consent required by Rule for Courts-Martial 910(a)(2), was the functional equivalent of a conditional guilty plea:

MJ: Mr. Grasselli, have you waived any motions as a result of this pretrial agreement?
DC: Your Honor, we have waived no motions.

Record of trial at 156.

We disagree with the conclusion appellant would have us draw from this question and answer. The judge at that point in the trial was inquiring into the terms of the pretrial agreement. In the process, he asked *657whether the defense had agreed to forgo making any motions as part of the plea bargain. Defense counsel answered that none had been waived and, in truth, defense had already made his motion to suppress the accused’s pretrial statement to Coast Guard special agents, which was fully litigated and denied by the judge. Thereafter, the accused entered guilty pleas and, upon inquiry by the judge, confirmed the unconditional nature of his pleas as follows:

MJ: Seaman Apprentice Coleman, earlier, you, through your Defense Counsel, made a Motion to Suppress the statements given to Special Agent Huggins and Special Agent Klinner, and I denied that motion.
By pleading guilty, you waive the right to appeal that issue. Do you understand that?
ACC: Yes, sir.

Record of trial at 150.

Further challenge of the judge’s ruling denying the motion to suppress evidence and review by this Court of that denial have been waived by appellant’s unconditional pleas of guilty. Accordingly, appellant’s assignment of error is rejected for that reason.

Based on appellant’s pleas, he was found guilty of specifications alleging aggravated arson; damage and destruction of government property; loss of government property; indecent language to a female; and unauthorized absence in violation of Articles 126,108,134 and 86, Uniform Code of Military Justice, 10 U.S.C. §§ 926, 908, 934, 886. The sentence, as approved by the convening authority, includes a dishonorable discharge, confinement for two years and reduction to E-l. In fulfillment of our responsibility under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866, with respect to the sentence, we note that Rule for Courts-Martial 1003(b)(10)(B), Manual for Courts-Martial 1984 sets out as guidance that, “[a] dishonorable discharge should be reserved for those who should be separated under conditions of dishonor____” While the offense of aggravated arson alone could prompt such a discharge, depending on the facts, the circumstances surrounding the charge in this case do not warrant that characterization. Here, the offense was consummated when the accused in an intoxicated condition set fire to a bulletin board as an act of vandalism. The fire was rapidly extinguished, resulting in damage only to the bulletin board and several ceiling tiles.

This offense falls within the Uniform Code of Military Justice’s definition of “aggravated arson” because two particular elements have been satisfied by the guilty plea, that there was a human being in the structure at the time and that the accused knew a human being was there. Otherwise, the offense would be “simple arson.” While the finding here technically meets the Code’s requirement for “aggravated arson”, Judge Grace and I do not consider the offense to be aggravated in the normal sense of the word from the limited facts developed at trial. Judge Barry would not even find the technical requirement for aggravated arson satisfied. Based on appellant’s responses during the plea providence inquiry, Judge Barry would reject appellant’s plea of guilty to that offense. Judge Grace and I consider the trial judge’s inquiry to be minimally sufficient for acceptance of the plea and justification for the finding of guilty, but we certainly do not deem the offense serious enough to warrant a dishonorable discharge.

In light of all matters relating to the offenses and this particular first offender, Judge Barry and I believe a lesser period of confinement is more appropriate. The remaining offenses consisted of the multiplicious specifications of destruction of the bulletin board and damage to the ceiling tiles; specifications of: damaging a government trash can, damaging a fire extinguisher, negligently losing a barracks room key, communication of indecent language to a female seaman, and a 2 hour and 55 minute unauthorized absence. While these offenses, along with the arson offense, clearly constitute bad conduct, we do not believe they call for a dishonorable discharge and two years confinement. Accordingly, the findings of guilty and only *658so much of the sentence as approved below, as provides for a bad conduct discharge, confinement for eighteen months and reduction to E-l are affirmed. All rights, privileges and property of which the accused has been deprived by virtue of the mitigated sentence shall be restored.