UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             NEVIN, OLMSCHEID, and KIRBY
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                            Sergeant SCOTT K. STOKES
                            United States Army, Appellant

                                    ARMY 20041348

     Defense Language Institute Foreign Language Center and Presidio of Monterey
                             Robert Smith, Military Judge
                   Colonel John L. Clifton, Staff Judge Advocate


For Appellant: Colonel John T. Phelps II, JA; Lieutenant Colonel Kirsten V.C.
Brunson, JA; Captain Charles L. Pritchard, Jr., JA; (on brief); Lieutenant Colonel
Steven C. Henricks, JA; Major Tyesha E. Lowery, JA; Captain Sean F. Mangan, JA
(on specified issue brief).

For Appellee: Colonel John W. Miller II, JA; Lieutenant Colonel Michele B.
Shields, JA; Major Paul T. Cygnarowicz, JA; Captain Trevor B.A. Nelson, JA (on
brief); Lieutenant Colonel Kevin Boyle, JA; Major Paul T. Cygnarowicz, JA;
Captain Trevor B.A. Nelson, JA (on specified issue brief).

                                       11 June 2007

                                ---------------------------------
                                 OPINION OF THE COURT
                                ---------------------------------

NEVIN, Chief Judge: 1

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of absence without leave, wrongful appropriation of private
property valued at over $500.00, larceny of private property valued at over $500.00,
larceny of military property valued at over $500.00, and forgery, in violation of
Articles 86, 121, and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 921,
and 923 [hereinafter UCMJ]. The convening authority approved the adjudged
sentence to a bad-conduct discharge, confinement for eight months, and reduction to
Private E1, and deferred automatic forfeiture of pay until action.



1
    Chief Judge Nevin took final action while on active duty.
STOKES – ARMY 20041348

       We have considered the record of trial, appellant’s assignments of error, the
matter appellant personally raised pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), appellant’s brief on the specified issue and the government’s
responses thereto. We agree with appellant’s second assignment of error, that he
was not properly credited with two days of confinement credit awarded by the
military judge for time spent in pretrial civilian confinement and will credit
appellant’s sentence accordingly. 2 We find the remaining errors asserted by
appellant, however, to be without merit and write this opinion to clarify the scope of
our review on appeal.

       For the reasons stated below, we find that we must limit our review of the
providence of appellant’s pleas to the evidence admitted at trial. We reject,
therefore, appellant’s assertions and the government’s concession, based upon
information outside the record of trial, that appellant was not provident to his plea of
guilty to Specification 3 of Charge II (larceny of military property). Furthermore,
although not raised by appellant, we are left with the conclusion that defense
counsel misadvised appellant to plead guilty to larceny of military property by
misusing his government travel card where the relevant contracts establish that the
military would not have been held liable for appellant’s misuse. However, we find
this did not constitute ineffective assistance of counsel because, in context, the
erroneous advice did not materially prejudice appellant.

       Moreover, we reject appellant’s assertion that even if we limit our review to
the record developed at trial, there is a substantial basis to question appellant’s plea
of guilty to larceny of military property. We also reject the government’s assertion
that appellant’s explanation to the military judge that the property in question was
military property (because “once the charge was on the card and [he] wasn’t going to
pay it back . . . the government would be responsible to pay [its] credit card back”)
was a legal conclusion insufficient to provide the requisite factual basis to support
his plea. 3

2
  Although awarded by the military judge after sentencing, the convening authority’s
initial action failed to include this credit. See Rule for Courts-Martial 1107(f)(4)(F);
Army Reg. 27-10, Legal Services: Military Justice, para. 5-28a (16 Nov. 2005)
(requiring a convening authority to “show in [the] initial action all credits against a
sentence to confinement . . . regardless of the source of the credit . . . or for any . . .
reason specified by the judge”); United States v. Delvalle, 55 M.J. 648, 649 n.1, 656
(Army Ct. Crim. App. 2001); United States v. Arab, 55 M.J. 508, 510 n.2, 520
(Army Ct. Crim. App. 2001).
3
 Appellant did not simply tell the military judge that the property in question was
military property because the government was liable for his purchases. Had this
been the extent of the military judge’s inquiry, we would be inclined to agree with
                                           2
STOKES – ARMY 20041348

                    FACTS AND PROCEDURAL BACKGROUND

        Appellant, a chaplains’ assistant at the Presidio of Monterey, served as the
custodian of the chaplains’ fund. Over a period of several months he stole over
$7,500.00 from the chaplains’ fund by writing checks to himself and forging
signatures of those with the requisite approval authority, and by stealing cash
offerings. Also, over a period of several months he wrongfully used his government
travel card to steal over $1,600.00. Following commission of these offenses,
appellant went absent without leave (AWOL) for approximately five months. To
facilitate his flight from his Army unit, he wrongfully appropriated the privately
owned vehicle of another soldier.

       Appellant alleges on appeal, inter alia, that his plea of guilty to Specification
3 of Charge II (larceny of military property by improperly using his government
travel card) was improvident because, contrary to his testimony during the Care
inquiry, 4 the property was not, in fact, military property because the government was
not liable for appellant’s charges to his government travel card.

       Appellant submitted portions of the Bank of America Department of Defense
Visa Travel Card Program Card Holder Program Guide and Department of Defense
Financial Management Regulation as attachments to his appellate brief to support
his assertion that the property was not military property. This evidence was not
introduced at trial, although available at the time. Moreover, the evidence was not
determinative as to whether the property in question was military property, as there
was no evidence presented either at trial or in the appellate briefs indicating that the
policies contained in these documents were ever incorporated into the relevant
contracts at the time of the offenses. Neither appellant nor the government


the government. Liability is a legal concept, the implications of which we would not
assume that a lay person fully appreciated. See United States v. Redlinski, 58 M.J.
117, 119 (C.A.A.F. 2003) (“Although [a]ppellant is not entitled to receive a
hornbook review of the [complex inchoate offense of attempt], the record must
objectively reflect that [a]ppellant understood that his conduct, in order to be
criminal, needed to go beyond preparatory steps and be a direct movement toward
the commission of the intended offense.”). Appellant need not have a law school
education, however, to appreciate the meaning of his own assertion that “once the
charge was on the card and [he] wasn’t going to pay it back . . . the government
would be responsible to pay [its] credit card back.” See United States v. Morris, 58
M.J. 739, 742 (Army Ct. Crim. App. 2003), pet. denied 59 M.J. 146 (C.A.A.F.
2003). This assertion is not a legal conclusion as to liability; rather it is an assertion
of the underlying facts needed to make that conclusion.
4
    United States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247 (1969).
                                           3
STOKES – ARMY 20041348

submitted for this court’s consideration the evidence that is determinative on the
issue — the contracts between appellant and Bank of America 5 and between the
Department of Defense and Bank of America 6 in effect at the time of the offenses.

        During the providence inquiry, appellant admitted, under oath, that the
property in question was military property because “once the charge was on the card
and [he] wasn’t going to pay it back . . . the government would be responsible to pay
[its] credit card back.” As a consequence, following a Rule for Courts-Martial
[hereinafter R.C.M.] 802 conference with counsel, the military judge, without
objection from appellant or the government, determined on the record that the credit
card obligations were, in fact, military property.

       The government, citing to the same two documents as appellant, conceded in
its appellate brief that the government would not have been liable for appellant’s
charges to his government travel card and, therefore, the property was not military
property. The government urged this court to amend Specification 3 of Charge II to
substitute the words “Bank of America property” for the words “military property.”

      After our initial review of the case under Article 66(c), UCMJ, we ordered
counsel to submit briefs on the following specified issue:

               WHETHER THE COURT HAS THE AUTHORITY
               UNDER ARTICLE 66(c), UNIFORM CODE OF
               MILITARY JUSTICE, TO USE EVIDENCE
               AVAILABLE, BUT NOT OFFERED OR ADMITTED, AT
               THE TIME OF TRIAL, IN EVALUATING THE
               PROVIDENCE OF A GUILTY PLEA. See United States
               v. Russel, 50 M.J. 99 (C.A.A.F. 1999); United States v.
               Boone, 49 M.J. 187 (C.A.A.F. 1998); United States v.
               Mason, 45 M.J. 483 (C.A.A.F. 1997); United States v.
               Parker, 36 M.J. 269 (C.M.A. 1993).

Furthermore, for the sole purpose of properly analyzing the potential collateral issue
of ineffective assistance of counsel, we ordered government appellate counsel to file
the contract in effect at the time of the alleged offenses between the Department of
Defense and Bank of America.




5
    Bank of America was the issuer of the credit card used in the larcenies.
6
  This contract would have explained the extent of the government’s liability for
failure of Department of Defense cardholders to pay their credit card debts.
                                          4
STOKES – ARMY 20041348

                                     DISCUSSION

                            I. Scope of Review on Appeal

                                          Law

                                 Non-collateral Issues

      Under Article 66(c), UCMJ, this court is charged with:

             affirm[ing] only such findings of guilty and the sentence
             or such part or amount of the sentence, as it finds correct
             in law and fact and determines, on the basis of the entire
             record, should be approved. In considering the record,
             [we] may weigh the evidence, judge the credibility of
             witnesses, and determine controverted questions of fact,
             recognizing that the trial court saw and heard the
             witnesses.

(Emphasis added.) Our superior court has characterized our authority under Article
66(c), UCMJ, as an “awesome, plenary, de novo power of review” and described the
service courts as “something like the proverbial 800-pound gorilla when it comes to
their ability to protect an accused.” United States v. Parker, 36 M.J. 269, 271
(C.M.A. 1993). As Judge Wiss noted in his concurring opinion, however:

             Even a court with “awesome, plenary, de novo power of
             review” and with “carte blanche to do justice” is not
             unrestricted. No court is free to act beyond the perimeter
             of its legal mandate, whether acting on behalf of an
             individual accused or on behalf of the people through the
             prosecution. There are some places where even “the
             proverbial 800-pound gorilla” is not free to roam.

Id. at 273 (Wiss, J., concurring) (citing United States v. Bethea, 22 U.S.C.M.A. 223,
46 C.M.R. 223 (1973)). In Bethea, our superior court clearly articulated that Article
66(c), UCMJ, limits our authority, in regard to the findings, 7 to the record as

7
 Government counsel, in their brief on the specified issue, erroneously rely on our
superior court’s admonition in United States v. Healy, 26 M.J. 394, 395 (C.M.A.
1988), that we are to assure that “justice is done” as authority for us to consider
additional matters on appeal. That reliance, however, is misplaced. Healy
specifically limited itself to the issue of whether a service court erred in refusing to
consider letters, primarily written by prison officials after trial, recommending
                                             5
STOKES – ARMY 20041348

developed at trial. For, “[u]ndeniably, evidence not presented at the trial cannot be
used to support or reverse a conviction . . . .” Bethea, 22 U.S.C.M.A. at 225, 46
C.M.R. at 225 (quoting United States v. Lanford, 6 U.S.C.M.A. 371, 379, 20 C.M.R.
87, 95 (1955)); see also Fed. R. App. P.10 (The record of trial on appeal consists of
“(1) the original papers and exhibits filed in the district court; (2) the transcript of
proceedings, if any; and (3) a certified copy of the docket entries prepared by the
district clerk.”). This principle has been reiterated in a long line of cases and, as
evidenced by our superior court’s decision this term in United States v. Beatty, 64
M.J. 456 (C.A.A.F. 2007), remains in full force today. 8 The Beatty Court stated, “In


reduction in the length of confinement. It answered this question in the negative and
affirmed the service court’s decision. Moreover, Healy held:

             We infer . . . that Congress never intended that a [service
             court] would be under any duty to receive additional
             information on sentencing after the convening authority
             had acted. . . .

             . . .The point is that the [service court] has no duty to
             receive information or data that purports to be relevant
             only to clemency and that, after the convening authority
             has acted, the Code provides no way of bringing to the
             attention of the [service court] information that
             purportedly bears even on sentence appropriateness.”

Id. at 396-97 (emphasis added).
8
  See also United States v. Roderick, 62 M.J. 425, 431 (C.A.A.F. 2006) (holding a
service court “is constrained by the bounds of the record from the court below when
reviewing an appellant’s guilt or innocence for factual or legal sufficiency.”); United
States v. Holt, 58 M.J. 227, 232 (C.A.A.F. 2003) (“Article 66(c)[, UCMJ,] limits the
[service courts] ‘to a review of the facts, testimony, and evidence presented at trial,
and precludes a [service court] from considering ‘extra-record’ matters when making
determinations of guilt, innocence, and sentence appropriateness.’” (quoting United
States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)); United States v. Scheurer, 62
M.J. 100, 108 (C.A.A.F. 2005) (reciting its holding in Holt, 58 M.J. at 232-33, that
“a court of criminal appeals ‘may not resurrect excluded evidence’ or consider
evidence in a manner inconsistent with the limited purpose for which the military
judge admitted it.”); United States v. Reed, 54 M.J. 37, 43 (C.A.A.F. 2000)
(upholding a service court’s decision refusing to consider information from an
Article 32, UCMJ, in evaluating guilt); United States v. Boone, 49 M.J. 187, 193
(C.A.A.F. 1998) (“[T]he service appellate court has ‘factfinding power on collateral
claims’ but . . . it is not authorized ‘to determine innocence on the basis not
                                              6
STOKES – ARMY 20041348

a succession of early cases, we established that the review of findings — of guilt or
innocence — was limited to the evidence presented at trial.” Id. at 458 (citing Holt,
58 M.J. at 232; Bethea, 22 U.S.C.M.A. at 224-25, 46 C.M.R. at 224-25; Lanford, 6
U.S.C.M.A. at 379, 20 C.M.R. at 95; United States v. Duffy, 3 U.S.C.M.A. 20, 23, 11
C.M.R. 20, 23 (1953); United States v. Whitman, 3 U.S.C.M.A. 179, 180, 11 C.M.R.
179, 180 (1953).

       Furthermore, if there was any doubt that the principle of limiting review to
the record developed at trial applied only to contested cases, our superior court
dispelled that notion long ago in its decision in United States v. Davenport, 9 M.J.
364 (C.M.A. 1980); see also United States v. Roane, 43 M.J. 93, 99 (C.A.A.F.
1995); United State v. Peele, 46 M.J. 866, 868 (Army Ct. Crim. App. 1997).
“[E]vidence from outside the record will not be considered by appellate authorities
to determine anew the providence of the plea. . . . [P]rovidence of a tendered plea of
guilty is a matter to be established one way or the other at trial.” Id. at 367.

                                  Collateral Issues

       This court’s reviewing authority with respect to collateral issues, such as
post-trial confinement, prosecutorial misconduct, unlawful command influence, or
ineffective assistance of counsel permits, however, a more expansive definition of
“the entire record” than that permitted during our review of non-collateral issues. 9
Consideration of collateral issues requires us to include within the meaning of “the
entire record” additional materials that may be submitted with appellate pleadings,
attached to allied documents, or derived from other sources. This is so because, by
their very nature, collateral issues deal with matters that may not be readily apparent


presented at trial.’”) (quoting United State v. Ginn, 47 M.J. 236, 242 (C.A.A.F.
1997)).
9
  We note that our review of petitions for new trial also requires a more expanded
view of what is included in the “entire record.” Rule for Courts-Martial 1210(f)
allows for a new trial when there is new evidence discovered after trial, which would
not have been discovered through the exercise of due diligence prior to trial and
which would probably produce a substantially better result for the accused. See also
United States v. Garcia, 19 F.3d 1123, 1126 (6th Cir. 1994); United States v. Wilson,
894 F.2d 1245, 1252 (11th Cir. 1990); United States v. Meyers, 484 F.2d 113, 116
(3d Cir. 1974). Petitions for new trial will not be granted, however, on the basis of
newly discovered evidence “when the petitioner was found guilty of the relevant
offense pursuant to a guilty plea.” R.C.M. 1210(a). As appellant pled guilty to
larceny of military property, R.C.M. 1210(a) precludes him from submitting a
petition for new trial based on newly discovered evidence.

                                           7
STOKES – ARMY 20041348

at trial and, therefore, might not have been reasonably developed at trial. See United
States v. Boone, supra; United States v. Ginn, supra; see also United States v.
Bright, 60 M.J. 936, 939 (Army Ct. Crim. App. 2005) (once appellant asserts post-
trial cruel and unusual punishment, the “entire record” includes those matters
contained in his appellate pleadings). A more expansive review of collateral matters
does not, however, equate to an expansion of our authority under Article 66(c),
UCMJ and does not permit us to augment the record of trial in our evaluation of the
providence of an appellant’s pleas.

       This principle was demonstrated in United States v. Gonzalez, 60 M.J. 572,
574-75 (Army Ct. Crim. App. 2004). In Gonzalez, we considered materials
contained in allied papers attached to the transcript of proceedings, but not admitted
into evidence, to determine the collateral issue of whether the appellant in that case
received effective assistance of counsel. 10

                                       Analysis

       Appellant now seeks to use evidence, which at the very least was available to
him at trial — had he exercised the due diligence necessary to obtain it — to directly
attack the factual basis of his plea of guilty to larceny of military property. If
appellant wished to challenge the government’s liability for the charges incurred
through his misuse of his government travel card, the time to do so was at trial.
Appellant did not do so, but instead conceded the matter at trial during the
providence inquiry.

       We see no justification to “allow appellant to throw a penalty flag and prevail
after he has admitted on the record to each element of the charged offenses . . . .”
United States v. Russell, 50 M.J. 99, 100 (C.A.A.F. 1999). As a result, we will
follow our superior Court’s guidance in Davenport and confine our evaluation of

10
   In Gonzalez, after examining the allied papers to resolve the collateral issue of
effectiveness of counsel, we determined, as with our determination in the case sub
judice, that appellant’s trial defense counsel had not informed the military judge of
all the relevant facts and thus advised his client to plead guilty based upon an
inaccurate factual predicate. In Gonzalez, we found the appellant improvident to
missing movement because the military judge “failed to elicit from appellant factual
admissions [on the record, i.e. during providence] to support a finding that appellant
was neglectful in missing his scheduled flight.” Gonzalez at 573. See also United
States v. Harding, 61 M.J. 526 (Army Ct. Crim. App. 2005) (government cannot use
sentencing testimony to support the providence of a guilty plea). In contrast, as
discussed below, in the case sub judice, the military judge did elicit sufficient
factual admissions to support a finding of guilty.

                                          8
STOKES – ARMY 20041348

appellant’s guilty pleas to the evidence contained in the “entire record” consisting of
the record of trial proceeding and exhibits. Doing so promotes judicial economy and
brings finality to the appellate process. It also ensures that, except for those rare
circumstances when truly new evidence comes to light, an appellant is not permitted
to use the benefit of hindsight to undermine tactical decisions reasonably made at
trial. 11

       While affirming a guilty plea based upon an objectively false factual predicate
may appear facially unfair, an accused’s right to fundamental due process is
nevertheless preserved. For example, where an accused is deprived of effective
assistance of counsel, he is not necessarily without remedy. In a sufficiently
aggravated case, he might merit appellate relief, not because the “erroneous” plea
was improvident, but because the case amounted to a miscarriage of justice so grave
as to deny him the basic right to counsel guaranteed by the Sixth Amendment. In
such a case, this court would not be without authority to set aside a conviction on
the basis of the collateral issue of ineffective assistance of counsel. It is this issue,
not directly raised by appellant, but implicated nonetheless, to which we now turn.

                        II. Ineffective Assistance of Counsel

                                          Law

      We review de novo issues of ineffective assistance of counsel under the two-
pronged analysis set forth in United States v. Strickland, 466 U.S. 668, 689 (1984),
which is:




11
  Had we considered the actual contracts in this case in determining the factual
sufficiency of the appellant’s pleas of guilty, we would have accepted the
government’s concession that, pursuant to the terms of the contracts, the government
would not be liable for appellant’s charges. As a result, we would have found
appellant’s plea to larceny of military property improvident and substituted the
words “Bank of America property” for the words “military property” in
Specification 3 of Charge II. See generally United States v. Epps, 25 M.J. 319, 323
(C.M.A. 1987) (holding that we may “uphold a conviction when the providence
inquiry clearly establishes guilt of an offense different from but closely related to
the crime to which the accused has pleaded guilty.”). For the reasons discussed in
our analysis of counsel’s performance, we do not believe that the nature of the
property in Specification 3 of Charge II had any impact on appellant’s sentence or
that appellant suffered any prejudice. Reassessing the sentence applying the
principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), we would have
affirmed the sentence.
                                            9
STOKES – ARMY 20041348

             (1) a deficiency in counsel's performance that is so serious
             that counsel was not functioning as the counsel guaranteed
             the defendant by the Sixth Amendment; and (2) that the
             deficient performance prejudiced the defense through
             errors so serious as to deprive the defendant of a fair trial,
             a trial whose result is reliable.

United States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006) (internal quotations and
citations omitted). Thus, not only must we find defense counsel’s performance
“unreasonable under the prevailing professional norms,” but we must also find, but
for his performance, the results of appellant’s court-martial would have been
different. Id.

                                       Analysis

       Under the first prong of the Strickland analysis, we find the defense counsel
fell below the standard of a reasonable attorney. Ordinarily defense counsel are
“presumed to be competent” and to have “conducted reasonable investigations into
the existence of defenses.” United States v. Shaw, 64 M.J. 460, 463 (C.A.A.F.
2007). The facts in this case, however, point to the contrary. Either defense counsel
failed to research the issue of government liability under the existing contract
between the Department of Defense and Bank of America or he allowed his client to
plead guilty to larceny of military property, under the theory that the government
would ultimately be liable for his client’s misuse of the government travel card,
knowing this information, given under oath, to be untrue. Neither of these options
provides a valid tactical reason for advising his client to plead guilty. See generally
United States v. Dobrava, 64 M.J. 503 (Army Ct. Crim. App. 2006) (discussing the
limitations on tactical decisions).

       Under the second prong of the Strickland analysis, however, we do not find
prejudice. Appellant was convicted of several offenses to include stealing over
$7,500.00 from the chaplains’ fund, stealing over $1,600.00 using his government
travel card, forgery, and wrongfully appropriating another soldier’s vehicle to aid
him in going AWOL for approximately five months. The error in this case went to
the identity of the victim in one specification and did not go to whether appellant, in
fact, committed larceny or to the amount stolen. In other words, the gravemen of the
offense retained its essential character.

       Moreover, appellant entered into a very favorable pretrial agreement with the
convening authority that limited his maximum punishment to that allowed by a
special court-martial, which included twelve months confinement, a bad-counduct
discharge, forfeiture of two thirds pay per month for twelve months, and reduction to
Private E1. The military judge, however, only sentenced appellant to a bad-conduct

                                          10
STOKES – ARMY 20041348

discharge, eight months confinement and reduction to Private E1. To conclude that
the convening authority would have reduced appellant’s sentence or granted other
clemency based on the victim in question being Bank of America as opposed to the
military defies common sense. Although the maximum permissible confinement for
larceny of military property is twice that of non-military property, it is clear from
the pretrial agreement and referral to a special court-martial, as well as from the
sentence adjudged and approved, that this difference had no material effect on the
outcome of the case. Appellant was not prejudiced by a mischaracterization of the
property. We determine, therefore, that appellant was not denied effective
assistance of counsel.

                                   CONCLUSION

      The findings of guilty and the sentence are affirmed. To the extent appellant
has not already received the confinement credit awarded by the military judge,
appellant will be credited with two days of confinement credit.

      Senior Judge OLMSCHEID and Judge KIRBY concur.

                                        FOR THE COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        Clerk of Court




                                         11
