         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                            No. 201600326
                        _________________________

                 UNITED STATES OF AMERICA
                                Appellee
                                    v.

                       DILLON L. KENDALL
            Gunner’s Mate Second Class (E-5), U.S. Navy
                             Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

   Military Judge: Commander Heather Partridge, JAGC, USN.
  Convening Authority: Commander, Navy Region Mid-Atlantic,
                           Norfolk, VA.
   Staff Judge Advocate’s Recommendation: Commander Irve C.
                    Lemoyne, Jr., JAGC, USN.
  For Appellant: Lieutenant Commander Paul D. Jenkins, JAGC,
                               USN.
                 For Appellee: Brian Keller, Esq.
                     _________________________

                        Decided 30 March 2017
                        _________________________

  Before G LASER -A LLEN , M ARKS , and R USSELL , Appellate Military
                                Judges
                        _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________

   PER CURIAM:
   A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of one specification of conspiring to
wrongfully export anabolic steroids, two specifications of wrongful use of
anabolic steroids; two specifications of wrongful distribution of anabolic
                          United States v. Kendall, No. 201600326


steroids; one specification of wrongful possession of anabolic steroids; and one
specification of wrongful introduction of anabolic steroids onto an installation
used by the armed forces in violation of Articles 81 and 112a, Uniform Code
of Military Justice, 10 U.S.C. §§ 881 and 912a. The military judge sentenced
the appellant to 6 months’ confinement, reduction to pay grade E-1, and a
bad-conduct discharge. The convening authority (CA) approved the adjudged
sentence and, pursuant to a pretrial agreement (PTA), suspended all
confinement in excess of 90 days.
    Although not raised by the parties, we find that there is a substantial
basis in law and fact to question the appellant’s plea of guilty to conspiring
“on divers occasions” in Specification 3 of Charge I. As such, we find that the
military judge abused her discretion in accepting the appellant’s plea of
guilty to conspiring “on divers occasions.” Additionally, the CA’s
promulgating order fails to reflect a minor but material modification to
Specification 3 of Charge I, and we take appropriate action in our decretal
paragraph.
                                   I. BACKGROUND
    The appellant pled guilty to seven specifications related to his possession
of, use of, distribution of, and conspiracy to export anabolic steroids. The
specification related to the conspiracy charge alleged:
         [T]hat Gunner’s Mate Second Class Dillon L. Kendall, U.S.
         Navy, Coastal Riverine Squadron 2, on active duty, did, at
         Dubai, United Arab Emirates, on divers occasions between on
         or about 17 July 2014 and on or about 7 December 2014,
         conspire with [D.H.], to commit an offense under the Uniform
         Code of Military Justice, to wit: wrongful exportation from the
         United States of anabolic steroids, a Schedule III controlled
         substance, and in order to effect the object of the conspiracy,
         the said GM2 Kendall did pay [D.H.] $100.
    Before accepting the appellant’s pleas, the military judge first, and
correctly, advised that the two elements needed to prove conspiracy are an
agreement, and an overt act in furtherance of the agreement while the
agreement continued to exist.1 The appellant then testified that he and D.H.
agreed that D.H. would mail him anabolic steroids from the United States
during his overseas deployment.2 The appellant provided money to D.H., who




   1   Record at 26-27.
   2   Id. at 31-32; 34-35.


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                       United States v. Kendall, No. 201600326


then mailed a quantity of steroids from the United States to him in Dubai, in
September 2014.3
                                  II. DISCUSSION
A. Abuse of discretion
    We review a military judge’s acceptance of an accused’s guilty plea for an
abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.
2008). “In doing so, we apply the substantial basis test, looking at whether
there is something in the record of trial, with regard to the factual basis or
the law, that would raise a substantial question regarding the appellant’s
guilty plea.” Id. In order to establish adequate factual grounds for a guilty
plea, the military judge must elicit facts from the accused that objectively
support the plea. United States v. Davenport, 9 M.J. 364, 367 (C.M.A. 1980).
    Specification 3 of Charge I alleges that the appellant conspired with D.H.
“on divers occasions.” Committing conspiracy “on divers occasions,”
necessitates multiple agreements. Here, there was evidence of only a single
conspiracy: the agreement to send the appellant steroids from the United
States while the appellant was on deployment. Accordingly, we find that the
military judge abused her discretion in accepting the appellant’s guilty plea
to conspiring with D.H. “on divers occasions,” and we affirm the finding as to
this specification except for the words “on divers occasions.”.4
   We have considered reassessment of the sentence on the basis of the error
noted, the entire record, and in accordance with the principles set forth in
United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). See also
United States v. Cook, 48 M.J. 434, 438 (C.A.A.F. 1998). We conclude that the
sentence, as approved, is an appropriate punishment for the modified offense,
and no greater than what would have been awarded absent the error. See
United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986) (noting that a
reassessed sentence must not only “be purged of prejudicial error [but] also
must be ‘appropriate’ for the offense involved”).
B. Error in promulgating order
    The CA’s promulgating order fails to reflect a minor, but material,
modification to Specification 3 of Charge I. Based on the appellant’s
testimony during the providence inquiry, the military judge found that he


   3   Id. at 35-36.
   4 In United States v. Rodriguez, 66 M.J. 201, 203-04 (C.A.A.F. 2008), the Court of
Appeals for the Armed Forces reviewed this remedy de novo and affirmed, noting
that when an “on divers occasions” verdict is modified to a single act, the charge can
nevertheless be sustained if the evidence is sufficient as to a single act.


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paid D.H. $100.00 in furtherance of their conspiracy, not the $1,000.00
charged. The appellant agreed to the material change in the specification,
and the counsel modified the specification during trial. This modification does
not appear in the CA’s promulgating order. As the appellant is entitled to
official records that correctly reflect the results of his proceeding, we order
correction in our decretal paragraph. United States v. Crumpley, 49 M.J. 538,
539 (N-M. Ct. Crim. App. 1998).
                              III. CONCLUSION
    Accordingly, we set aside “on divers occasions” from Specification 3 of
Charge I, affirm the remainder of the specification in so much as the
appellant did pay D.H. $100.00, and affirm the remaining findings and the
sentence. The supplemental court-martial order will reflect that as to
Specification 3 of Charge I, the specification was modified post-arraignment
to allege the payment of $100.00 vice $1,000.00, and that the appellant pled
and was found guilty of the lesser dollar amount.
                                       For the Court




                                       R.H. TROIDL
                                       Clerk of Court




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