United States v. Felix

OPINION OF THE COURT

SNYDER, Judge:

Pursuant to conditional pleas of guilty,1 appellant was convicted by special court-martial of failure to obey a lawful order, and two specifications of escape from correctional custody.2 He was sentenced to a bad-conduct discharge, 5 months confinement, and reduction to E-l. Appellant raises five assignments of error, of which only three merit extensive discussion. We grant partial relief on the findings and sentence.

Appellant now claims his pleas to the specifications and charge, Charge II, are improvident. The basis for his assertion is that comments in his unsworn statement during sentencing raised matter inconsistent with his plea. Specifically, he suggests the restraint he breached was moral, rather than physical.3 Because of the salient facts of the instant case, for appellant’s contention to prevail, we must accept the premise that a person placed in a designated, supervised correctional custody facility is not thereby under physical restraint. Indeed, appellant’s supplemental brief argues as much. We disagree. Absent some evidence contradicting appellant’s concession that he was under physical restraint in a centralized, monitored correctional custody facility, we decline to hold that his unsworn statement raising the possibility that the physical restraint was ineffective was a matter inconsistent with his pleas of guilty to escape from correctional custody.

Absent evidence demonstrating appellant was being controlled by moral restraint at the time of the offense, we find provident, his pleas that he escaped by casting off the restraint of a monitored, centralized correctional custody facility, regardless of the means by which he did so.

I. FACTS

The following dialogue transpired between appellant and the military judge:

MJ: And are you, were there in fact limits on where you could go, within correctional custody, without the per*906mission of the correctional custody monitor?
Acc: Was there an outline, you mean,— MJ: Yes.
Acc: —as far as I could go?
MJ: Um-hum.
Acc: I don’t remember seeing anything like that.
MJ: No, but I mean—
Acc: No, I—
MJ: —did you understand that you were under physical restraint Acc: —yes, sir.
MJ: —imposed by this correctional custody?
Acc: Yes, sir.
MJ: And that you would need the permission of the correctional custody monitor in order to go out of the correctional custody facility unless you were out on some kind of a work detail or something like that?
Acc: Yes, sir.
MJ: And you knew of the limits, the limitations placed on you with, in terms of physical restraint, by this,—
Ace: Yes, sir.
MJ: —by your status of being in correctional custody?
Acc: Yes, sir.
MJ: Okay. Now did you, on the 9th of February, free yourself from the physical restraint that had been imposed upon you?
Acc: Yes, sir.
MJ: What’d you do? Did you go downtown?
Acc: Went downtown, sir.
******
MJ: Now, on the 13th of February, was your status still the same as it was on the 9th of February,—
Acc: Yes, it was.
MJ: —as being in correctional custody? Acc: Yes, sir.
MJ: And again, you were aware of that status, is that correct?
Acc: Yes, sir.
MJ: Okay. What did you do on the 13th of February to escape from correctional custody?
Acc: I needed to go use the phone, sir ... and I left through the back door.
MJ: And did you in fact surreptitiously leave the correctional custody facility without permission from anyone who could give you permission to leave?
Acc: Yes, sir

A stipulation of fact entered into by all parties at trial reflects the appellant left the correctional custody facility and went to a Las Vegas casino where he consumed beer. While there, he remarked to a non-commissioned officer working part-time at the casino that “I just snuck out of CC.” Regarding the 13 February offense, the stipulation of fact reflects the appellant departed the facility “out the back door while the CC monitor was in his office.”

II. CORRECTIONAL CUSTODY

Appellant argues that finding physical restraint on the facts of the instant case renders paragraph 70, MCM, redundant. His argument refers to the second element of the offense, which requires the correctee to be under physical restraint while in correctional custody.4 MCM, Part IV, paragraph 70(b)(1)(b) (1984). The essence of this argument is that the trial judge should have inquired into what extent, if any, the facility deterred or hampered appellant’s freedom of movement. This argument fails to account for the essence of correctional custody.

Correctional custody is an authorized nonjudicial punishment pursuant to Article 15, UCMJ (10 U.S.C. § 815). The President defines correctional custody as “the physical restraint of a person during duty or nonduty hours, or both, imposed as a punishment under Article 15____” MCM, 1984, Part V, paragraph 5(e)(4) (1984). This definition is taken almost verbatim *907from the Senate Report explaining the 1962 amendment to Article 15. Prior to defining correctional custody, the Senate Armed Services Committee stated as follows: “The bill contains a form of physical restraint not authorized in existing law, and termed ‘correctional custody’.” S.Rep. No. 1911, 87th Cong., 1st Sess. 7 (1962) (emphasis added).

Although there is a paucity of decisions involving correctional custody, the few in existence do not contradict the crystal clear intent of Congress and the President to make correctional custody a form of physical restraint, especially when the issue actually before the Court is separated from the collateral aspects. In United States v. Carson, 15 U.S.C.M.A. 407, 35 C.M.R. 379, 1965 WL 4684 (1965), attention might be diverted to the fact the correctee was locked in a barracks room. The issue before the Court, however, was whether the members had to find the correctional custody was legally imposed as an element of the offense of escape from correctional custody. The Court held that was a question of law and not an element of the offense for the factfinders. The decision placed no emphasis whatsoever on the fact the accused was actually locked up while undergoing correctional custody. In fact, the instructed elements required the members only to find the accused was in correctional custody and he freed himself from the restraint of that custody before proper release.

In United States v. Mackie, 16 U.S.C.M.A. 14, 36 C.M.R. 170, 1966 WL 4436 (1966), a case involving breach of correctional custody, appellate defense counsel argued to the Court that, because correctional custody and confinement differed only in semantics, correctional custody should be imposed only by sentence of court-martial. 36 C.M.R. at 174. The Court disposed of the issue by emphasizing the correctee’s right to demand trial by court-martial in lieu of Article 15 proceedings. There was no effort by the Court to articulate a position that correctional custody is not physical restraint.

This same issue was revisited during the United States Court of Military Appeals’ decisions applying Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), to UCMJ practice.5 The argument was, because of the absence of a real distinction between correctional custody and confinement, Article 15 punishments which imposed correctional custody without representation by counsel should be inadmissible in a subsequent trial by court-martial as are summary courts-martial convictions which impose confinement without the accused being represented by counsel.6 See United States v. Shamel, 22 U.S.C.M.A. 361, 47 C.M.R. 116, 1973 WL 14672 (1973). To Judge Quinn, correctional custody resembled restriction more than confinement, but only because of the differences in treatment accorded correctees vis a vis prisoners, not on the absence of physical restraint. His final comparison was to detention after school. 47 C.M.R. at 117. Although they differed on the disposition of the ultimate issue, the other two judges could not discern a substantive difference between correctional custody and confinement. Shamel, 47 C.M.R. at 118, 119 (Duncan, J., dissenting); United States v. Alderman, 22 U.S.C.M.A. 298, 46 C.M.R. 298, 308 at n. 1, 1973 WL 14505 (1973) (Darden, C.J., dissenting).

In short, there is nothing in those decisions to indicate correctional custody is not physical restraint.

Appellant’s resort to comparisons with the offense of escape from confinement is persuasive, but in a manner contrary to his *908position.7 Appellant mistakenly interprets our decision in United States v. Hodge, 50 C.M.R. 445, 1975 WL 15647 (1975), to mean that more than a casting off of confinement status must be shown to constitute an escape, and, from that interpretation concludes the same holds for correctional custody. In fact, the part of Hodge appellant relies upon provides that evidence which shows the procedural requirements for confinement were accomplished is not proof, per se, that a person actually was placed in confinement. We held that, although Hodge had not been physically placed in the confinement facility, because the procedural steps were properly completed, and he was committed to the corrections supervisor who could not refuse to accept him, he was in confinement. Hodge’s confinement status having attached, his flight from his guards en route to the facility constituted an escape from confinement, not an escape from custody. 50 C.M.R. at 448.

Any doubt in this regard should have been eliminated by our decision in United States v. Cornell, 19 M.J. 735 (A.F.C.M.R. 1984), which reemphasized our holding in United States v. Maslanich, 13 M.J. 611 (A.F.C.M.R.1982). Once confinement status attaches, the throwing off of that status by any means, whether by physically overpowering a guard, picking a lock, or by simply walking away, constitutes an escape. See United States v. Felty, 12 M.J. 438 (C.M.A.1982). In Cornell, we affirmed an escape from confinement where a minimum custody prisoner (who did not require an escort, etc.) left the installation without permission, rather than going to his stated destination.

The fact that correctional custody anticipates and mandates periods when the correctee is subject to moral restraint does not cancel the inherent status of physical restraint.8 This factor is reflected in the Secretary of the Air Force’s (SAF) implementation of the correctional custody provisions of Article 15. The Air Force concept states, in part, “[T]he deprivation of liberty is a severe punishment to be carefully considered and imposed only when it is necessary to closely hold the offender in a treatment setting.” Air Force Regulation 125-35, Correctional Custody, para. 2 (4 September 1981). AFR 125-35 does not reflect any intent on the part of SAF to prosecute correctional custody offenses solely by charging breach of correctional custody, as the Secretary of the Army apparently has done. See United States v. Kellner, 16 M.J. 524 (A.C.M.R.1983). We note this is a policy decision by the Army which has no effect upon the essence of a correctee’s status while in custody.

Comprehensive analysis of correctional custody reveals that moral restraint is present when the correctee is outside or beyond the designated, monitored correctional custody setting, e.g., when performing one’s normal duties or when on unsupervised details, and when following designated routes to and from the correctional custody facility. When this standard is applied, the language of MCM, Part IV, para. 70(b)(1)(b) (1984) is not redundant.

Therefore, in the absence of evidence to the contrary, a correctee is under physical restraint whenever he or she has been committed to a designated correctional custody setting (a centralized base facility or designated area within a facility) under supervision of a monitor, and with knowledge he or she is not to leave except under specified circumstances.

*909III. PROVIDENCY OF PLEAS

A. Pleas to Escape From Correctional Custody

With these salient legal principles in mind, we now turn to appellant’s pleas. Although appellant pleaded guilty, it is axiomatic that if he set up matters inconsistent with that plea at trial, or pleaded improvidently, his guilty pleas cannot stand. Article 45(a), UCMJ, 10 U.S.C. § 845(a). More than a possible ingenious conflict is required. There must be evidence of a substantial conflict with the accused’s plea. United States v. Logan, 22 U.S.C.M.A. 349, 47 C.M.R. 1, 1973 WL 14641 (1973). However, we also must bear in mind appellant’s pleas precluded the Government from putting on a more detailed case and developing the facts. United States v. Burnette, 35 M.J. 58 (C.M.A. 1992). Accordingly, for us to set aside appellant’s pleas, the record must show a substantive basis in law and fact for questioning his guilty pleas. United States v. Prater, 32 M.J. 433 (1991). Further, an inconsistency is not generated by an absence of evidence from the record, but from the record’s entirety. The same holds true for providency. Although additional evidence may be desirable, if the record in its entirety reflects appellant knew the elements of the offense to which he pleaded guilty and admitted them freely, even if the trial judge did not fully explain them, and there is a factual basis for his pleas, the pleas will stand. United States v. Jones, 34 M.J. 270 (C.M.A.1992).

The Stipulation of Fact reflects appellant was committed to Nellis AFB’s Correctional Custody Facility. As indicated above, appellant admitted he knew he was under physical restraint by virtue of his status of being in correctional custody and that he could not leave the facility without permission. Nowhere in the record is there an indication the facility was viewed as moral restraint during evening hours. In fact, appellant avoided a monitor to depart on the second occasion. We may reasonably infer the monitor also was on duty during his first departure. During the providency inquiry into the second escape, the trial judge specifically referred appellant back to his responses on the first escape to ensure appellant was following him.

The MCM defines escape from correctional custody as:

The act of a person undergoing the punishment of correctional custody pursuant to Article 15, who, before being set at liberty by proper authority, casts off any physical restraint imposed by the custodian or by the place or conditions of custody (emphasis added).

MCM, Part IV, paragraph 70c(l) (1984). Appellant’s responses to the trial judge clearly reflect acts which fall within that definition. His leaving without permission cast off a restraint imposed by the custodian, in the form of the monitor, as well as the place of his custody, the designated facility. It was not essential for the trial judge to ascertain how appellant cast off the physical restraint the facility and his status imposed upon him. Appellant’s status while in the monitored facility transcended whether the back door was locked, or whether the facility even had locks and bars. Appellant knowingly and freely admitted to his status of physical restraint by being in correctional custody and escaping therefrom. His pleas were provident. United States v. Burnette, 35 M.J. 58 (C.M.A.1992); United States v. Jones, 34 M.J. 270 (C.M.A.1992); United States v. Prater, 32 M.J. 433 (C.M.A.1991).

We also find appellant’s pleas were consistent throughout the entire trial. During appellant’s unsworn statement, defense counsel asked, “how’d you actually get out?” Appellant responded, “there’s no security in that place whatsoever. It’s just, I went out through the back door.” We do not view this remark as matter inconsistent with an admission of escape, but mere rationalization by appellant to justify his behavior.9 United States v. Pe*910mister, 25 M.J. 148 (C.M.A.1987). To state, in essence, had he been chained to his bed, or locked in his room, he would not have left, is to state the obvious. The absence of security devices does not convert appellant’s restraint to moral restraint. Neither does his rationalization render his comment substantively inconsistent with his plea. Penister, 25 M.J. at 153 (Cox, J., concurring).

B. Plea to Failure To Obey An Order

As a result of appellant taking the pleasure of a beer during his first sojourn from correctional custody, he was charged with failure to obey a lawful order. The act was alleged as a violation of Correctional Custody Operating Instruction 39-6, para. 2e. Its specific title is, “Correetee Honor System.”

We find this “order” to be so broad and vague that it amounts to no order at all. Although the Instruction cautions the reader that, “Violations of the honor system ... may be cause for disciplinary action,” it falls short of being sufficiently clear and definite to place one on notice of the prohibited conduct. See generally United States v. Benway, 19 U.S.C.M.A. 345, 41 C.M.R. 345, 1970 WL 7347 (1970); United States v. Baker, 18 U.S.C.M.A. 504, 40 C.M.R. 216, 1969 WL 6046 (1969); United States v. Hogsett, 8 U.S.C.M.A. 681, 25 C.M.R. 185, 1958 WL 3110 (1958). For example, the provision supposedly forbidding the consumption of alcohol is under the heading of: “The following will not be condoned: ... consumption of alcohol.” Also not to be condoned are: quibbling and evasiveness, profanity (not defined), attitudes (non-specified), altercations, infringements upon privacy, and the refusal to render assistance to those in need. On balance, the Instruction reads more like a civics lesson than a military order. Consequently, the Instruction, as a whole, fails to state a military order enforceable under Article 92, UCMJ, 10 USC § 892. United States v. Scott, 22 U.S.C.M.A. 25, 46 C.M.R. 25, 1972 WL 14384 (1972).

There remains the issue of our possibly approving a finding of the lesser offense of dereliction of duty. Where a providency inquiry fully apprises an accused of the elements of an included offense as part of the elements of the charged offense, and an accused’s responses knowingly and clearly admits the included offense, we may approve an included offense on appeal. See United States v. Sassaman, 32 M.J. 687 (A.F.C.M.R.1991); Cf. United States v. Brown, 18 M.J. 360 (C.M.A.1984).

During his providency inquiry, appellant admitted he had a duty to obey the Correctional Custody Instruction, and he knowingly consumed alcohol contrary to the Instruction. On their face, these admissions appear to constitute the offense of dereliction of duty.10 The Instruction’s inherent deficiencies, however, constrain us to decline to approve a conviction of the lesser offense of dereliction of duty, appellant’s admissions, notwithstanding.

In addition to the Instruction’s broad hortatory provisions noted above, the Instruction essentially incorporates all the UCMJ’s punitive articles (Articles 77 through 134, 10 USC §§ 877 through 934) under items which are not condoned. Obviously, this Instruction is not needed to prevent thefts or assaults, for Articles 121 and 128, 10 USC §§ 921 and 928 prohibit such misconduct. This Instruction, in essence, merely encourages Nellis AFB Correctional Custody correctees to be good citizens and obey the law, a duty to which they are subject at all times without the help of the Instruction. Therefore, we disapprove entirely the findings on Charge I and its specification.

IV. IMPROPER POST-TRIAL PROCESSING

The final assignment of error we discuss in detail is the improper preparation of the Staff Judge Advocate’s Recommendations to the convening authority (SJA Recommendations) by the assistant trial counsel, Major D. This was contrary to Article 6(c), *91110 use § 806(c) and R.C.M. 1106(b). Under the circumstances of the instant case, we find this statutory violation to have been waived, and we find no plain error.

The allied papers of the record of trial reflect the SJA Recommendations were duly served on trial defense counsel as required. R.C.M. 1106(f). In the post-trial submissions, trial defense counsel did not assert the existence of any errors in the SJA Recommendations. He limited his submissions to a clemency request on behalf of appellant. Failure to specifically note patent errors in the SJA Recommendations constitutes a waiver of those errors. R.C.M. 1106(f)(6). R.C.M. 1106(f)(6) does not exempt any particular errors from its waiver provision.

Although the post-trial processing with which we are involved is deemed part of an accused’s military due process rights, such rights are not immune to waiver. We previously have held that constitutional rights may be waived just as statutory rights and other benefits. United States v. Lucas, 19 M.J. 773 (A.F.C.M.R.1984), aff'd, 25 M.J. 9 (C.M.A.1987), cert. denied, 484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 764 (1988) (failure to object at trial to improper use of immunized testimony held waived on appeal).

Having deemed the error waived, we test for plain error and find none. First, Major D’s handiwork did not go directly to the convening authority. The staff judge advocate also signed the SJA Recommendations and certified he had reviewed the record of trial and recommendation, and concurred. See United States v. Grinder, 28 M.J. 840, 843 (A.F.C.M.R. 1989). Second, the SJA personally prepared and signed the Addendum to the SJA Recommendations, which was the response to trial defense counsel’s R.C.M. 1106(f) response. Thus, we conclude the interests of justice do not require a new SJA Recommendation and convening authority action.

It begs the issue to state these type errors are very easily avoided. No one should be more aware of a statutory disqualification than the disqualified person him or herself. In the instant case, Major D should have been aware of and voiced his disqualification when asked to prepare the SJA Recommendations. Failure to detect and avoid such rudimentary errors contributes to the many instances of the Courts of Military Review having to remand otherwise valid convictions.

V. REMAINING ASSIGNMENTS OF ERROR

We have considered the other assignments of error and resolved them adversely to appellant. McNeil v. Wisconsin, — U.S.-, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991); United States v. Lewis, 33 M.J. 758 (A.C.M.R.1991); R.C.M. 1001(a)(1)(A); Mil.R.Evid. 103(a)(1); United States v. Martin, 36 M.J. 739 (A.F.C.M.R.1993).

VI. CORRECTIVE ACTION

In view of Part IV-B, ante, we must determine whether remand for a rehearing on sentence only, or sentence reassessment is appropriate. Our review of the record convinces us that we can reassess the sentence to reflect what sentence appellant would have received had he not been charged with the failure to obey a lawful order not to consume alcohol. United States v. Peoples, 29 M.J. 426 (C.M.A.1990). We believe the members viewed the two escapes from correctional custody as the gravamen of appellant’s misconduct. Reassessing on that basis, we find appropriate only so much of the sentence as provides for a bad-conduct discharge, 4 months confinement, and reduction to E-l.

VII. DECRETAL

The findings on Charge I and its specification are disapproved, and Charge I and its specification are dismissed. The findings and sentence, as modified, are correct in law and fact, Article 66(c), 10 USC § 866(c), UCMJ, and are hereby,

AFFIRMED.

Chief Judge DIXON, Senior Judges O’HAIR and McLAUTHLIN, and Judges GRUNICK and HEIMBURG concur.

. R.C.M. 910(a)(2). We continue to remind staff judge advocates that, if the issue preserved by a conditional guilty plea is not case dispositive, it should not be accepted.

. Articles 92 and 134, UCMJ (10 U.S.C. §§ 892, 934 (1988)).

. As is usually the case, this issue would have been avoided with a more thorough providency inquiry, as well as a more comprehensive stipulation of fact.

. Appellant completes his logical circle by concluding that, if so, then that element would require the instructions to state, "while in such correctional custody, the accused was in correctional custody."

. Argersinger held that, even in misdemeanor actions, one cannot be sentenced to confinement, unless represented by counsel. This decision impacted the manner by which the armed forces administer trials by summary courts-martial. See Article 20, UCMJ (10 U.S.C. § 820 (1988)); R.C.M. 1301. Because Article 15 provides for correctional custody as an authorized punishment, the issue spilled over to Article 15 actions.

. Argersinger impacts admissibility under R.C.M. 1001(b)(3) for aggravation purposes, and under R.C.M. 1003(d)(1) and (2) for sentence enhancement purposes. It does not impact admissibility for impeachment under Mil.R.Evid. 609.

. Although correctional custody is physical restraint, it is not confinement. Consequently, the comparison of decisions on the two should be read in that light.

. To help the factfinders focus on whether a correctee has actually committed a breach of correctional custody as opposed to an escape, the instruction on breach cautions as follows: Although a person in correctional custody is always under physical restraint, this offense involves the breach of other specific limitations upon a person’s freedom of movement while under the physical restraint (emphasis added).

Department of The Army Pamphlet 27-9, Military Judges’ Benchbook, Change 1, para. 3-136 (18 February 1985).

. Unlike our dissenting brethren, we do not believe it necessary to look beyond appellant’s pleas to ascertain "how much” physical restraint was imposed upon him while in the facility. Appellant’s quip while at the casino reflects his *910knowledge he had to bypass more than his personal moral recognizance to leave the facility.

. See Article 92(3), UCMJ (10 U.S.C. § 892(3) (1988).