            U NITED S TATES AIR F ORCE
           C OURT OF C RIMINAL APPEALS
                      ________________________

                           No. ACM 39150
                      ________________________

                         UNITED STATES
                             Appellee
                                 v.
                      Colton T. BALLANCE
         Airman First Class (E-3), U.S. Air Force, Appellant
                      ________________________

       Appeal from the United States Air Force Trial Judiciary
                     Decided 23 February 2018
                      ________________________

Military Judge: Mark W. Milam (arraignment); Christopher A. Santoro.
Approved sentence: Dishonorable discharge, confinement for 34 years,
and reduction to E-1. Sentence adjudged 12 July 2016 by GCM convened
at Barksdale Air Force Base, Louisiana.
For Appellant: Lieutenant Colonel Nicholas W. McCue, USAF; Major
Allen S. Abrams, USAF; Major Todd M. Swenson, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Tyler
B. Musselman, USAF; Major Mary Ellen Payne, USAF; Major Meredith
L. Steer, USAF; Captain Michael T. Bunnell, USAF; Gerald R. Bruce,
Esquire.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Judge MINK and Judge DENNIS joined.
                      ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                      ________________________

JOHNSON, Senior Judge:
                   United States v. Ballance, No. ACM 39150


    A general court-martial composed of a military judge found Appellant
guilty, in accordance with his pleas and pursuant to a pretrial agreement
(PTA), of one specification of unpremeditated murder in violation of Article
118, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 918. The military
judge sentenced Appellant to a dishonorable discharge, confinement for 34
years, and reduction to the grade of E-1. The convening authority approved the
adjudged sentence 1 but waived mandatory forfeitures for six months for the
benefit of Appellant’s spouse and dependent child.
    Appellant raises three issues for consideration on appeal: (1) Whether Ap-
pellant’s guilty plea was improvident due to an inadequate factual basis in-
quiry by the military judge; (2) Whether Appellant’s guilty plea was improvi-
dent because he received inaccurate pretrial advice regarding the convening
authority’s ability to disapprove the finding of guilt or the sentence; and (3)
Whether Appellant’s sentence is inappropriately severe. We find no error that
materially prejudiced Appellant’s substantial rights; accordingly, we affirm
the findings and sentence.

                                 I. BACKGROUND
    Appellant was assigned to the security forces squadron at Barksdale
Air Force Base, Louisiana. He lived on base with his wife, EB, two-year-old
stepson, WC, and infant daughter, BB. On the evening of 12 October 2015,
Appellant took WC to the child’s upstairs bedroom to put him to bed while EB
rested downstairs with BB. After arriving in the bedroom, WC resisted being
put to bed, which was not unusual. WC began crying, ignored Appellant’s de-
mands that he be quiet, and struck Appellant with his hand because he did not
want to go to bed.
    In response, Appellant put his hands around WC’s neck and squeezed force-
fully. When he withdrew his hands, WC was gasping for air. Appellant knew
WC was having trouble breathing and that “something was wrong.” However,
instead of taking WC to a hospital or seeking assistance, Appellant went down-
stairs to watch television with EB. EB asked him why WC had been crying.
Appellant responded that WC had not wanted to go to sleep, but said WC had
quieted down after Appellant turned on the DVD player in the room to play
WC’s favorite movie.
   Neither Appellant nor EB checked on WC later that night or the following
morning before Appellant reported for duty at approximately 0500. Appellant


1 The PTA provided the convening authority would approve no confinement in excess
of 37 years and 6 months, with no other sentence limitation, and thus had no effect on
the convening authority’s ability to approve the adjudged sentence.


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                  United States v. Ballance, No. ACM 39150


did not inform anyone of WC’s condition or seek any assistance for WC before
EB discovered WC’s body at approximately 1100 that morning. EB checked on
WC and found him face-down in his bed, cold, stiff, and completely unrespon-
sive. Emergency responders were unable to revive him. The Bossier County
Coroner’s Office later determined, based on the condition of the body, WC likely
died in the late evening of 12 October 2015 or early morning of 13 October 2015.
An autopsy identified, among other injuries, abrasions to WC’s neck and hem-
orrhaging within WC’s neck muscles. The autopsy report identified neck inju-
ries as the cause of death. Appellant admitted to agents of the Air Force Office
of Special Investigations (AFOSI) that he squeezed WC’s neck after going into
an “uncontrollable” rage.
    At trial, Appellant pleaded guilty pursuant to a PTA to WC’s unpremedi-
tated murder by means of strangling WC with his hands. In accordance with
the PTA, Appellant agreed to and signed a stipulation of fact. The military
judge conducted a paragraph-by-paragraph review of that stipulation with Ap-
pellant, who admitted its contents were true to the best of his knowledge and
belief. The stipulation stated, inter alia, Appellant “placed his hands around
[WC’s] neck and squeezed forcefully. In doing so, he strangled [WC], squeezing
and constricting [WC’s] neck in a way that caused the child not to be able to
breathe . . . .” The stipulation further recounted Appellant told the AFOSI
agents that he
       noticed [WC] was limp and making an odd noise as though he
       was gasping for air. [Appellant] then covered [WC] with a blan-
       ket after laying him face-down on the bed. Neither [Appellant]
       nor [EB] ever placed [WC] face-down when putting [WC] to bed.
       By this time, [WC’s] breathing had significantly decreased in fre-
       quency and he continued to gasp for air. [Appellant] started a
       movie on the television in the bedroom, and left [WC] lying face-
       down on the mattress as he left the room.
The stipulation further stated,
       [Appellant], an adult male, weighed approximately 220 lbs.
       [WC] weighed 20 lbs. The force of the 220-pound [Appellant]
       squeezing the neck of [WC’s] 20-pound frame induced the pres-
       sure necessary to kill the child. [WC’s] gasping and labored
       breathing were a clear result of strangulation.
       [WC] died on or about 12 October 2015. His death resulted di-
       rectly from the act of [Appellant] in that he was strangled by
       [Appellant’s] hands at or near Barksdale Air Force Base, Louisi-
       ana. The act of strangling [WC] was intentional on the part of
       [Appellant], inherently dangerous to [WC] and evinced a wanton


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                      United States v. Ballance, No. ACM 39150


          disregard for human life. [Appellant] knew that great bodily
          harm was a probable consequence of the act. The killing of [WC]
          by [Appellant] was unlawful in that it was done without legal
          justification or excuse.
    After admitting the stipulation of fact, the military judge conducted a prov-
idence inquiry with Appellant. 2 The military judge advised that the elements
of the offense to which Appellant pleaded guilty included the following:
          One, that [WC] is dead;
          Two, that his death resulted from [Appellant’s] act of strangling
          him with [Appellant’s] hands at or near Barksdale Air Force
          Base, Louisiana, on or about the 12th of October 2015;
          Three, that [Appellant’s] act was inherently dangerous to an-
          other, that is, one or more persons, and it evinced a wanton dis-
          regard for human life;
          Four, that [Appellant] knew death or great bodily harm was a
          probable consequence of the act; and
          Five, that [Appellant’s] killing of [WC] was unlawful.
      Appellant explained to the military judge how he committed the crime:
          [WC] hit me, and I just lost it. I grabbed him by his neck and just
          choked him. . . . I don’t recall exactly how long I had my hands
          on his neck; but know [sic] when I let go, he was gasping for air.
          I just laid him down, covered him up, turned on his favorite
          movie, hoping he would be okay. . . . I knew with the force I used
          and the fact that he was having trouble breathing that some-
          thing was wrong.
The colloquy between the military judge continued and included the following
exchanges:
          ACC [Appellant]: As I’m walking into the room is when the slap
          occurred that sent me into an enraged anger; and at that time is
          when I – I actually placed him on the bed and placed my hands
          around his neck.
          Afterwards, as soon as I realized what I was doing, I took my
          hands away. Step back. Begin to, you know, freak out, realizing
          the seriousness of the situation. I really didn’t – I didn’t know
          what to do. So in order to kind of make it – hope that nothing


2   See United States v. Care, 18 C.M.A. 535 (C.M.A. 1969).


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                 United States v. Ballance, No. ACM 39150


       was wrong, I continued with the regular process of turning the
       movie on, tucking him in; and after that, I left the room to go
       back downstairs.
       ...
       MJ [Military Judge]: Do you have a recollection of having your
       hands around [WC’s] neck?
       ACC: Yes, sir.
       ...
       MJ: How serious did you think it was going to be? Did you know
       at the time he was likely to die or was dying?
       ACC: I had no idea at the time he was passing away. I honestly
       thought he was just coming back from the actual incident that
       occurred.
       ...
       MJ: As part of the stipulation as you prepared for the case today
       and as you look at the evidence, are you confident saying under
       oath that it was your act that resulted in [WC’s] death?
       ACC: Yes, Your Honor.
       ...
       MJ: So let me ask one concluding question as a summary ques-
       tion: Do you believe and admit under oath that at or near Barks-
       dale Air Force Base, Louisiana, on or about the 12th of October
       2015, you murdered [WC] by strangling him with your hands?
       ACC: Yes, Your Honor.
    Counsel for both parties advised the military judge that they did not per-
ceive any issue as to Appellant’s mental capacity or mental responsibility for
the offense, and that they believed the providence inquiry was adequate. The
military judge reviewed the terms of Appellant’s PTA offer with Appellant, and
established that Appellant was satisfied with his counsel. The military judge
accepted Appellant’s plea and ultimately sentenced him to a dishonorable dis-
charge, confinement for 34 years, and reduction to the grade of E-1.

                               II. DISCUSSION
A. Adequacy of the Providence Inquiry
   1. Law



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                   United States v. Ballance, No. ACM 39150


    A military judge’s decision to accept an accused’s guilty plea is reviewed for
an abuse of discretion. United States v. Finch, 73 M.J. 144, 148 (C.A.A.F. 2014).
“The appellant bears the burden of establishing that the military judge abused
that discretion, i.e., that the record shows a substantial basis in law or fact to
question the plea.” United States v. Phillips, 74 M.J. 20, 21–22 (C.A.A.F. 2015)
(citing Finch, 73 M.J. at 148). A military judge abuses his discretion by accept-
ing a guilty plea without an adequate factual basis to support the plea. United
States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012) (citing United States v. Inabi-
nette, 66 M.J. 320, 321–22 (C.A.A.F. 2008)). However, courts consider the facts
contained in a properly-admitted stipulation of fact when assessing the ade-
quacy of the factual basis supporting a guilty plea. See United States v. Sweet,
42 M.J. 183, 185–86 (C.A.A.F. 1995).
   2. Analysis
     Appellant was charged with murdering WC under the third clause of Arti-
cle 118, UCMJ, that is, by unlawfully killing him when “engaged in an act that
is inherently dangerous to another and evinces a wanton disregard of human
life.” 10 U.S.C. § 918(3). As the military judge explained to Appellant,
       the act must be intentional, but death or great bodily harm does
       not have to be the intended result. An act evinces a wanton dis-
       regard for human life when it is characterized by heedlessness
       of the probable consequences of the act and indifference to the
       likelihood of death or great bodily harm and demonstrates a to-
       tal disregard for the known probable consequences of death or
       great bodily harm.
Appellant contends that the military judge failed to elicit from Appellant suf-
ficient facts to demonstrate Appellant knew that death or great bodily harm
was a probable consequence when he strangled WC. We are not persuaded.
    The military judge reviewed the stipulation of fact with Appellant in some
detail. In the course of that review, Appellant specifically agreed with the mil-
itary judge’s recitation of the stipulation of fact, specifically, that the strangu-
lation was intentional and evinced a wanton disregard for human life and that
Appellant knew great bodily harm was a probable consequence of that act.
Apart from the stipulation, Appellant clearly admitted to strangling WC, a
two-year-old child weighing 20 pounds, in a fit of rage. He clearly indicated he
believed this unlawful act caused WC’s death, a conclusion supported by the
autopsy report attached to the stipulation of fact and by all the other evidence
in this case. Moreover, Appellant told the military judge that after he withdrew
his hands from WC’s neck, he “knew with the force [he] used and the fact that
[WC] was having trouble breathing that something was wrong.”




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                   United States v. Ballance, No. ACM 39150


    It is true that Appellant consistently maintained that he did not know WC
was dying when he left WC’s room that night; however, such knowledge is not
an element of the offense of which Appellant was convicted. What is required
is that Appellant knew that death or great bodily harm was a probable conse-
quence of Appellant’s act of strangulation. The stipulation of fact that Appel-
lant agreed to and signed, and which Appellant confirmed in person with the
military judge, explained why great bodily harm was a probable consequence
of Appellant’s act, and affirmed Appellant knew that it was. Appellant did not
contradict this knowledge during the providence inquiry. Considering the en-
tirety of the factual record before the military judge, including the stipulation
of fact and its attachments, we find no substantial basis to question the plea
and no abuse of the military judge’s “significant discretion” to decide to accept
the plea. Phillips, 74 M.J. at 21 (citing Inabinette, 66 M.J. at 322).
B. Advice Regarding Convening Authority Clemency Power
    1. Additional Facts
    On the day before trial, Appellant and each of the three trial defense coun-
sel signed a five-page memorandum purporting to advise Appellant of his post-
trial and appellate rights. The memorandum stated, inter alia, “The Convening
Authority may approve the sentence adjudged, approve a lesser sentence, or
disapprove the sentence entirely. The Convening Authority may also disap-
prove some or all of the findings of guilt.”
    At trial, prior to his announcement of the sentence, the military judge
briefly addressed the memorandum with Appellant. Appellant confirmed that
he had signed it, that he had discussed it with his lawyers, and that he had no
questions for the military judge regarding his post-trial rights.
    After trial, Appellant and one of his trial defense counsel were served with
a copy of the staff judge advocate’s recommendation to the convening authority
and its attachments pursuant to Rule for Courts-Martial (R.C.M.) 1106(f). Ap-
pellant’s counsel advised the staff judge advocate that Appellant would not be
submitting any further matters for the convening authority’s consideration
pursuant to R.C.M. 1105. 3
    2. Law
   As discussed above, a military judge’s decision to accept an accused’s guilty
plea is reviewed for an abuse of discretion. Finch, 73 M.J. at 148. To prevail on
appeal, the appellant must establish the record shows a substantial basis in


3The convening authority had previously granted Appellant’s request that the man-
datory forfeitures of pay and allowances be waived for six months for the benefit of EB
and BB.


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                  United States v. Ballance, No. ACM 39150


law or fact to question the providency of the plea. Phillips, 74 M.J. at 21–22.
Appellate courts will not reject an appellant’s guilty plea as improvident unless
an error resulted in material prejudice to a substantial right. United States v.
Hunter, 65 M.J. 399, 403 (C.A.A.F. 2008).
    R.C.M. 1107(c) provides, inter alia, that a convening authority taking ac-
tion on the results of a court-martial may not set aside a finding of guilty for
an offense for which the maximum sentence to confinement exceeds two years
or for which the adjudged sentence includes a dishonorable discharge or con-
finement for more than six months. R.C.M. 1107(d) provides, inter alia, that a
convening authority generally may not disapprove an adjudged term of con-
finement in excess of six months or a dishonorable discharge, except upon a
recommendation by trial counsel or in order to comply with the terms of a pre-
trial agreement. R.C.M. 1107(e) provides, inter alia, that a convening authority
may not order a rehearing where the adjudged sentence includes a dishonora-
ble discharge or confinement for more than six months.
   3. Analysis
    Appellant contends his guilty plea was not provident because he received
inaccurate advice from trial defense counsel regarding the convening author-
ity’s ability to modify the findings and sentence. Appellant speculates that
“[p]erhaps had he known that clemency would not have been an option,” he
“might have chosen to litigate his case with the hope of being convicted of in-
voluntary manslaughter, the lesser included offense of murder.” As a result,
Appellant asks this court to set aside the findings of guilt and order a new trial.
We decline to do so.
    Without question, the written advisement of post-trial and appellate rights
contained incorrect advice regarding the convening authority’s power to modify
the likely findings and sentence resulting from Appellant’s guilty plea to mur-
dering WC. Because Appellant was found guilty of murder in violation of Arti-
cle 118, UCMJ, an offense punishable by confinement for life, and because he
was sentenced to a dishonorable discharge and confinement for more than six
months, the convening authority could neither set aside the finding, nor disap-
prove the dishonorable discharge or term of confinement, nor order a rehearing
under R.C.M. 1107.
   However, it is also clear Appellant has suffered no material prejudice to a
substantial right. Despite the inaccurate clemency advice provided to Appel-
lant, his right to make an informed decision to plead guilty was not otherwise




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                    United States v. Ballance, No. ACM 39150


affected. See Hunter, 65 M.J. at 403. 4 Notwithstanding his speculation on ap-
peal, Appellant has offered no declaration or other showing that, but for the
erroneous advice, he would have elected to forego his PTA and to plead not
guilty. Cf. United States v. Ginn, 47 M.J. 236, 247 (C.A.A.F. 1997) (“[The ap-
pellant] has not alleged and the record does not show that there was a reason-
able probability that he would have changed his plea to not guilty if his defense
counsel had properly investigated [witness statements] . . . .”). We are not per-
suaded by Appellant’s assertion that he entered the PTA and pleaded guilty in
reliance on the prospect that the convening authority might set aside his prov-
ident guilty plea to murdering his two-year-old stepson, reduce or disapprove
his punitive discharge, or reduce his term of confinement below the maximum
agreed upon in the PTA. Accordingly, we find the erroneous advice did not ma-
terially prejudice Appellant’s right to make an informed decision regarding his
plea, and he is not entitled to a new trial.
    Although Appellant has raised this issue as a question of the providency of
his plea, it also implicates the doctrine of ineffective assistance of counsel
(IAC). Accordingly, we have evaluated Appellant’s claim in light of the stand-
ard for constitutionally effective assistance of counsel set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984), and utilizing the three-part test our su-
perior court has established to evaluate allegations of IAC. United States v.
Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing United States v. Polk, 32 M.J.
150, 153 (C.M.A. 1991)). For the reasons stated above, we find no reasonable
probability of a different result but for the erroneous advice regarding post-
trial rights. Id. Thus, Appellant is not entitled to relief on this basis either.
C. Sentence Appropriateness
    1. Law
    We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). We may affirm only as much of the sentence as we find
correct in law and fact and determine should be approved on the basis of the
entire record. Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence ap-
propriateness by considering the particular appellant, the nature and serious-
ness of the offense[s], the appellant’s record of service, and all matters con-
tained in the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct.
Crim. App. 2015) (en banc) (citing United States v. Anderson, 67 M.J. 703, 705

4 We note that, as is typical, the military judge did not address the subject of post-trial
rights with Appellant until the end of the court-martial, long after he had found Ap-
pellant’s pleas provident and accepted them. Put another way, an accused’s under-
standing of post-trial rights is not a subject that appellate courts have generally re-
quired a military judge to investigate before accepting a guilty plea as provident.


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                  United States v. Ballance, No. ACM 39150


(A.F. Ct. Crim. App. 2009)). Although we have great discretion to determine
whether a sentence is appropriate, we have no power to grant mercy. United
States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
   2. Analysis
    Appellant bases his claim that his sentence is inappropriately severe in
part on a comparison with sentences in other cases he describes as factually
similar. Although these cases are not “closely related” to Appellant’s, we
acknowledge that we may compare these cases to consider the propriety of Ap-
pellant’s sentence, although we are not required to do so. See United States v.
Wacha, 55 M.J. 266, 267 (C.A.A.F. 2001); United States v. Lacy, 50 M.J. 286,
288 (C.A.A.F. 1999). However, unless the cases are closely related, “[t]he ap-
propriateness of a sentence generally should be determined without reference
or comparison to sentences in other cases.” United States v. LeBlanc, 74 M.J.
650, 659 (A.F. Ct. Crim. App. 2015) (en banc) (citing United States v. Ballard,
20 M.J. 282, 283 (C.M.A. 1985)).
   Most of the cases Appellant cites do not involve convictions for murder. See
Sauk, 74 M.J. at 598 (involuntary manslaughter); United States v. Robbins, 52
M.J. 159, 159 (C.A.A.F. 1999) (involuntary manslaughter of fetus); United
States v. Nelson, 52 M.J. 516, 517 (N.M. Ct. Crim. App. 1999) (involuntary
manslaughter); United States v. Martinez, 48 M.J. 689, 690 (A. Ct. Crim. App.
1998) (involuntary manslaughter); United States v. Box, No. ACM 33487, 2001
CCA LEXIS 43, at *1 (A.F. Ct. Crim. App. 27 Feb. 2001) (unpub. op.) (involun-
tary manslaughter); United States v. Martin, 1990 CMR LEXIS 68, at *1
(A.F.C.M.R. 18 Jan. 1990) (unpub. op.) (involuntary manslaughter). The sole
murder case Appellant does cite involved circumstances highly dissimilar to
Appellant’s case. See United States v. Riley, 47 M.J. 603, 605 (C.A.A.F. 1997).
We do not find Appellant’s comparisons persuasive.
    Turning to the particulars of Appellant’s case, he contends the military
judge failed to adequately consider several circumstances that warrant a lesser
punishment. First, Appellant points to the absence of any prior history of vio-
lence. Second, he argues the crime was the product of enormous stress result-
ing from his new role as a 21-year-old father to two young children, recovery
from hip surgery, and working 12-hour shifts. Third, Appellant invites us to
consider his difficult childhood and the absence of a father figure for much of
his life. Finally, he points to support from his extended family as demonstrat-
ing strong rehabilitative potential. Appellant asks this court to reduce his term
of confinement to 15 years.
    Appellant faced the possibility of confinement for life without the possibil-
ity of parole. A military judge, having reviewed the evidence and received Ap-
pellant’s unsworn statements, determined a term of 34 years in confinement


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                  United States v. Ballance, No. ACM 39150


was appropriate. Appellant exhibited a wanton disregard for human life by
strangling the helpless two-year-old stepson he was supposed to be tucking
into bed. Having inflicted lethal injuries on the child, Appellant then extin-
guished any chance of WC’s survival by leaving him face-down in his bed, fail-
ing to obtain any assistance, and portraying to WC’s concerned mother that
nothing was wrong. Having given individualized consideration to Appellant,
the nature and seriousness of the offense, Appellant’s record of service, and all
other matters contained in the record of trial, we find his sentence is not inap-
propriately severe.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.



                  FOR THE COURT




                  JULIE L. ADAMS
                  Acting Deputy Clerk of the Court




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