                             UNITED STATES, Appellee

                                            v.

                       Franklin M. BARTON, Hospitalman
                             U.S. Navy, Appellant


                                      No. 03-0272
                            Crim. App. No. 200100732


       United States Court of Appeals for the Armed Forces

                            Argued November 18, 2003

                              Decided June 28, 2004

BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, and EFFRON, JJ., joined. ERDMANN, J.,
filed a dissenting opinion.


                                         Counsel

For Appellant:       Lieutenant Rebecca S. Snyder, JAGC,
USNR (argued).



For Appellee: Lieutenant Christopher J. Hajec, JAGC, USNR
(argued); Commander Robert P. Taishoff, JAGC, USN, and
Lieutenant Lori McCurdy, JAGC, USNR (on brief); Colonel Rose M.
Favors, USMC.




Military Judge:        E. B. Stone



        THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Barton, No. 03-0272/NA


    Judge BAKER delivered the opinion of the Court.

    On August 4, 2000, at Okinawa, Japan, Appellant was tried by

a general court-martial composed of a military judge alone.

Consistent with his pleas, Appellant was convicted of three

specifications of conspiracy to commit larceny, two

specifications of failure to obey a lawful general order, three

specifications of larceny, and four specifications of

housebreaking, in violation of Articles 81, 92, 121, and 130,

Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C.

§§ 881, 892, 921, and 930 (2000), respectively.   He was

sentenced to a bad-conduct discharge, confinement for two years,

total forfeiture of all pay and allowances, and reduction to the

lowest enlisted grade.   On April 5, 2001, in accordance with a

pretrial agreement, the convening authority approved the

sentence but suspended all confinement in excess of twelve

months.   On October 31, 2002, the Navy-Marine Corps Court of

Criminal Appeals affirmed the findings of guilty and the

sentence in an unpublished opinion.   United States v. Barton,

NMCM 200100732 (N-M. Ct. Crim. App. 2002).

     This Court granted review of the following issue:

           WHETHER THE LOWER COURT ERRED IN FINDING
           APPELLANT’S PLEA OF GUILTY TO SPECIFICATION
           2 OF CHARGE I PROVIDENT WHERE THE MILITARY
           JUDGE FAILED TO ELICIT A FACTUAL BASIS FROM
           THE   ACCUSED  THAT   THE  OBJECT  OF   THE
           CONSPIRACY WAS LARCENY OF MERCHANDISE OF A



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United States v. Barton, No. 03-0272/NA


            VALUE OF MORE THAN $100 (AS OPPOSED        TO
            LARCENY OF MERCHANDISE OF SOME VALUE).


                                Facts

     The stipulated facts pertinent to the granted issue reveal

that Appellant and several other enlisted men engaged in a

series of break-ins at Kadena Air Force Base and Camp Hansen on

the island of Okinawa.   Two of these break-ins included the

Powerzone, an electronics store on Camp Hansen.   On June 21,

2000, Appellant along with two other enlisted men broke into the

Powerzone with the intent to steal merchandise.   The theft was

unsuccessful, however, since one of the internal building doors

was locked.   Appellant and his co-conspirators returned to the

Powerzone on June 22, 2000, broke in, and stole approximately

$10,000 worth of electronic equipment including watches,

camcorders, compact discs, video games, and DVDs.

     These events gave rise to Charge I, which contained three

specifications of conspiracy.   Each of the three specifications

alleged that the object of the conspiracy was larceny of goods

with a value in excess $100.    Prior to explaining each of the

offenses, the judge requested that Appellant keep the charge

sheet in front of him so Appellant could “follow along on your

copy of the charge sheet as I list the elements of the offenses

for you.”   During the Care inquiry of Charge I, Specification 1,

the judge defined and explained the four elements of larceny as


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United States v. Barton, No. 03-0272/NA


they pertained to Appellant’s specification, including the

required dollar amount.   See United States v. Care, 18 C.M.A.

535, 40 C.M.R. 247 (1969).   After describing the elements

involved in Specification 1, the judge asked Appellant, “Do you

understand the elements of the offense of larceny[?]”   Appellant

responded, “Yes, sir.”    The judge further questioned Appellant

about the elements.

     Numerous specifications on this charge sheet would
     normally require me to advise you again and again of
     the crime—the elements of the crime of larceny and the
     definitions associated with that crime. In the
     interest of time, we could dispense with me reading
     that to you over and over again if you can assure me
     that you understand the elements of the crime of
     larceny and the definitions that I have given you. Do
     you understand all of those elements for sure and
     those definitions?

     At the completion of the judge’s question, Appellant once

again responded, “Yes, sir.”   The judge also advised Appellant

that if he got confused about any of the elements or definitions

he should stop the judge.

     The military judge asked Appellant if he would like to have

the elements of larceny restated prior to his inquiry with

respect to Specification 2, which concerned the alleged

conspiracy to commit larceny of goods with a value in excess of

$100 from Powerzone on June 21, 2000.   The judge noted, “The

only difference between that set of elements that I gave you

earlier and the elements that apply to this offense is the owner



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United States v. Barton, No. 03-0272/NA


of the property alleged.   In this specification, the owner of

the property is alleged to be the Power Zone (sic).”   At that

time, Appellant once again acknowledged that he understood the

elements of larceny as they applied to his case.   The same

procedure was followed regarding the third specification of

conspiracy in Charge I, which resulted in the larceny of goods

valued over $10,000 from Powerzone.   At the close of the Care

inquiry, the judge ultimately asked Appellant whether Appellant

believed and admitted that “taken together” the elements,

stipulation of fact, and the Care discussion described what

Appellant had done “on each occasion?”    Appellant responded,

“Yes, Sir.”

     Appellant argues that his plea to Specification 2 of Charge

1 lacks a factual basis substantiating each element of the

offense.   In particular, Appellant argues that nowhere in the

Care inquiry did he admit to conspiring to steal property of a

value more than $100 on June 21, 2000.    Nor can such a factual

predicate be inferred from the elements of other offenses for

which Appellant was charged and to which he providently pleaded.

According to Appellant, the fact that he stole $10,000 in

merchandise from the store on June 22, 2000, does not establish

that he conspired to steal over $100 in merchandise from the

same store one day earlier.   In short, a plea must stand on its




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United States v. Barton, No. 03-0272/NA


own four legs, with a factual basis for each element of each

offense.

     The Government responds that the record as a whole

establishes each element of the offense.   Further, there is

nothing in the record that suggests Appellant’s plea to this

offense was not knowing, voluntary, or complete.   Appellant

understood the value of the merchandise in question and admitted

to this element of the offense.   Thus, the purpose of Care and

its progeny are satisfied.

                             Discussion

     “[A] guilty plea is an admission of all the elements of a

formal criminal charge[.]”   Id. at 539, 40 C.M.R. at 251

(quoting McCarthy v. United States, 394 U.S. 459, 466 (1969)).

Therefore, before accepting a guilty plea, a military judge must

explain the elements of the offense and ensure that a factual

basis for each element exists.    United States v. Faircloth, 45

M.J. 172, 174 (C.A.A.F. 1996).    “It is not enough to elicit

legal conclusions.   The military judge must elicit facts to

support the plea of guilty.”   United States v. Jordan, 57 M.J.

236, 238 (C.A.A.F. 2002)(citing United States v. Outhier, 45

M.J. 326, 331 (C.A.A.F. 1996)).   This factual predicate is

sufficiently established if “the factual circumstances as

revealed by the accused himself objectively support that plea .

. . .”   United States v. Davenport, 9 M.J. 364, 367 (C.M.A.


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United States v. Barton, No. 03-0272/NA


1980).    As a result, “the issue must be analyzed in terms of

providence of his plea not sufficiency of the evidence.”

Faircloth, 45 M.J. at 174.

        When considering the adequacy of the plea, this Court

considers the entire record to determine whether the dictates of

Article 45, UCMJ, 10 U.S.C. § 845 (2000), Rule for Courts-

Martial 910, and Care and its progeny have been met.      Jordan, 57

M.J. at 239.     We will not overturn the acceptance of a guilty

plea unless there is a “substantial basis in law and fact for”

doing so.     United States v. Prater, 32 M.J. 433, 436 (C.M.A.

1991).

        In the specification at issue, Appellant was charged with

conspiracy to commit larceny of property with value more than

$100.    The specific elements of larceny are specified in the

Manual for Courts-Martial, United States (2002 ed.) [hereinafter

MCM], Part IV, para. 46.b.(1):

        (a)   That the accused wrongfully took, obtained, or
              withheld certain property from the possession of the
              owner or of any other person;
        (b)   That the property belonged to a certain person;
        (c)   That the property was of a certain value, or of some
              value; and
        (d)   That the taking, obtaining, or withholding by the
              accused was with the intent permanently to deprive or
              defraud another person of the use and benefit of the
              property or permanently to appropriate the property
              for the use of the accused of for any person other
              than the owner.




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United States v. Barton, No. 03-0272/NA


Article 121 provides for gradations in the maximum sentence

depending on the value and type of the property in question.∗

     Appellant was charged with three specifications of larceny

and conspiracy to commit larceny.    “In the interest of time,”

the judge elected not to repeat the elements for each offense

during his Care inquiry, but rather established the relationship

of fact to law by cross-referencing his predicate statement of

elements.   As a result, at no point during the Care inquiry

regarding Specification 2 did Appellant admit in declaratory

fashion that he intended to steal more than $100 in merchandise.

Nor did the stipulation of fact specify the value in question.

Rather, any such admission must be found in Appellant’s

acknowledgement that he understood the elements of Specification

2, which included a value of more than $100, and that his

conduct fit the elements of larceny.

     Although we may have doubts that a similar methodology of

cross-reference will work generally, it did not amount to error

in this case.   Reviewing the Care inquiry in whole, we are

satisfied that Appellant understood the elements of conspiracy

to commit larceny, understood that the elements included a

∗
 At the time of trial, Article 121 allowed increased punishment
for the larceny of property in excess of $100. Manual for
Courts-Martial, United States (2000 ed.), Part IV, para.
46.e.(1). Article 121 now provides increased punishment for
property in excess of $500. MCM, (2002 ed.), Part IV, para.
46.(e).(1)(a).


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United States v. Barton, No. 03-0272/NA


property valuation of over $100, and affirmatively admitted to

the military judge that his actions satisfied this element of

the offense.   First, when the judge listed the elements at the

outset, Appellant told the judge that he understood the elements

of larceny, including the $100 value requirement.    Moreover, the

judge did not take “yes” for an answer, but took care to test

the answer and asked Appellant whether he in fact understood the

elements and understood that he could ask for them to be

repeated at any time.   Further, the judge required Appellant to

follow along during the Care inquiry using his charge sheet.

Because Specification 2 contained the phrase “of a value more

than $100.00,” and the judge informed Appellant of this element,

it is reasonable to conclude that Appellant was aware of the

elements to which he was pleading.

     In reaching this conclusion, we are cognizant that we are

considering element (c), property of a value more than $100.

See MCM, Part IV, para. 46.b.(1)(c).     This is not a complex

legal element.   An understanding of this element does not

require an intricate application of law to fact.    Moreover,

Appellant’s admission to this element involved more than simply

his agreement with a legal conclusion, as the element itself

contains a specific factual threshold.    Therefore, Appellant’s

admission to this element was an admission to law and fact.

Thus, this case is distinguishable from Jordan, where the


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United States v. Barton, No. 03-0272/NA


Appellant was asked for a legal conclusion as to whether his

conduct was service discrediting, without explanation as to why

leaning on a boat might fit that legal element.   57 M.J. at 239.

This case is also distinguishable from United States v.

Hardeman, for Appellant did not say anything during the Care

inquiry that was factually inconsistent with the charged offense

or an admission of guilt to that offense.   59 M.J. 389 (C.A.A.F.

2004).   Nor is this a case where Appellant has pleaded guilty to

something he factually did not do as was the case in United

States v. Pinero,      M.J. ___ (C.A.A.F. 2004)(attempting to

plead to a continuous unauthorized absence when the record

established an interrupted period of absence).    The question

here, is whether the record says enough to objectively support

an admission to each element of the offense.

     We cannot lose sight that this is a guilty plea case. As

this Court indicated in Jordan, “a guilty plea case is less

likely to have developed facts . . . .”   Jordan, 57 M.J. at 238.

With the benefit of appellate hindsight, one might well identify

questions unasked or be tempted to look for the factual

development that only a contested trial might contain.

     At the same time, we cannot lose sight that in a guilty

plea case the Care inquiry is a substitute for a contested

trial.   18 C.M.A. 535, 40 C.M.R. 247.   By pleading guilty, an

accused is relinquishing significant constitutional rights.      He


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United States v. Barton, No. 03-0272/NA


also spares the victim and the government the costs and

consequences of a trial.    As a result, Appellant’s desire to

plead guilty should not obscure the necessity of establishing

each element to each offense; speed and economy must cede to

care.

        For the reasons stated above, we are satisfied that each

element of Specification 2 of Charge 1 was established.

Therefore, there is no substantial basis in law and fact to

question Appellant’s guilty plea to Specification 2.

                                 Conclusion

        The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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United States v. Barton, No. 03-0272/NA


     ERDMANN, J. dissenting:

     I respectfully dissent.     In my view, there is an inadequate

factual basis to support Appellant’s plea of guilty to

conspiracy to commit larceny of merchandise of a value of more

than $100.   As I believe that there is an adequate factual basis

to support a plea to conspiracy to commit larceny of merchandise

of some value, I would affirm the guilty plea to that extent.     I

would further find that the error was harmless with respect to

the sentence and affirm the sentence.

     The charges and specifications relating to conspiracy and

larceny include:1 conspiracy to commit larceny and larceny of

merchandise of a value of more than $100 from the Kadena Tennis

Pro Shop on May 27 and 28, 2000; conspiracy to commit larceny of

merchandise with a value of over $100 in regard to an attempted

larceny from the Powerzone on June 21, 2000; and conspiracy to

commit larceny and larceny of merchandise with a value over $100

from the Powerzone on June 22.

     The specification that is the subject of this appeal is the

conspiracy to commit larceny from the Powerzone on June 21.

Although Appellant and his co-conspirators were successful on



1
  Appellant was charged with three specifications of conspiracy
to commit larceny; two specifications of violating a lawful
order (consuming alcohol under the age of 21); three
specifications of larceny; and four specifications of
housebreaking.


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United States v. Barton, No. 03-0272/NA


that date in entering the building in which the Powerzone was

located, they were unable to gain entry to the Powerzone itself.

Therefore, unlike the conspiracy charges relating to the larceny

from the Kadena Tennis Pro Shop and the June 22 larceny from the

Powerzone, there was no successful larceny of the Powerzone on

June 21, 2000 and consequently no merchandise was taken.

     Perhaps because there was no successful completion of this

conspiracy to commit larceny, there was no exchange between the

military judge and Appellant concerning the value of merchandise

that he and his co-conspirators intended to steal from the

Powerzone on June 21.    Indeed the majority recognizes that “at

no point during Appellant’s providence inquiry regarding

Specification 2 did Appellant admit in declaratory fashion that

he intended to steal more than $100 in merchandise.   Nor did the

stipulation of fact specify the value in question.”   ____ M.J.

at (8).

     In order to find a factual basis that Appellant intended to

steal merchandise of a value of more than $100, the majority

notes:    “[A]ny such admission must be found in Appellant’s

acknowledgement that he understood the elements of Specification

2, which included a value of more than $100[.]”   __ M.J. at (9).

     In United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.

2002), this Court set forth a comprehensive overview of the

legal requirements in a providence inquiry:


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United States v. Barton, No. 03-0272/NA


       To guard against improvident pleas under Article 45, RCM
     910(e), Manual, supra, provides: “The military judge shall
     not accept a plea of guilty without making such inquiry of
     the accused as shall satisfy the military judge that there
     is a factual basis for the plea.” In order to establish an
     adequate factual predicate for a guilty plea, the military
     judge must elicit “factual circumstances as revealed by the
     accused himself [that] objectively support that plea[.]”
     United States v. Davenport, 9 MJ 364, 367 (CMA 1980). It
     is not enough to elicit legal conclusions. The military
     judge must elicit facts to support the pleas of guilty.
     United States v. Outhier, 45 MJ 326, 331 (1996). The
     record of trial must reflect not only that the elements of
     each offense charged have been explained to the accused,
     but also “make clear the basis for a determination by the
     military trial judge . . . whether the acts or the
     omissions of the accused constitute the offense or offenses
     to which he is pleading guilty.” United States v. Care, 18
     USCMA 535, 541, 40 CMR 247, 253 (1969).

     Upon appellate review, this Court will not overturn a

guilty plea unless there is a substantial basis in law and fact

for questioning the providence of the plea.    United States v.

Russell, 50 M.J. 99, 100 (C.A.A.F. 1999); United States v.

Prater, 32 M.J. 433, 436 (C.M.A. 1991).   We will consider the

whole record, including references to a stipulation of fact, to

find that a guilty plea inquiry is adequate.    See, e.g., United

States v. Sweet, 42 M.J. 183 (C.A.A.F. 1995).

     Looking at the entire record in this case, there is no

discussion with Appellant as to whether he intended to steal

more than $100 in merchandise from the Powerzone on June 21.

There is no reference to the value of this merchandise in the

stipulated facts.   The only basis that can be found is the




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United States v. Barton, No. 03-0272/NA


following statement of the military judge, after he listed the

elements of larceny in regard to Charge 1, Specification 1:2

     Okay, Numerous specifications on this charge sheet would
     normally require me to advise you again and again of the
     crime -- - the elements and the definitions associated with
     that crime. In the interest of time, we could dispense
     with me reading that to you over and over again if you can
     assure me that you understand the elements of the crime of
     larceny and the definitions that I have given you.

Appellant responded, “Yes, Sir.” to the military judge’s

question as to whether he understood the elements and

definitions.   The mere recitation of the elements of a crime,

however, and an accused’s rote response is simply not sufficient

to meet the requirements of Article 45, Uniform Code of Military

Justice, 10 U.S.C. § 845 (2000), United States v. Care, 18

C.M.A. 535, 40 C.M.R. 247 (1969) and its progeny, or Rule for

Courts-Martial 910 [hereinafter R.C.M.].   In recognition of this

requirement, the military judge revisited Charge I,

Specification 1 and specifically elicited Appellant’s response

to each element, including that the merchandise had a value of

more than $100.   The military judge failed to conduct a similar

inquiry for Specification 2.

     Because of the requirement for notice pleading in military

practice, the specifications of charged offenses must contain

factual allegations.   See R.C.M. 307(c)(3).   In turn, a military


2
  Charge I, Specification 1 charged conspiracy to commit larceny
of the Kadena Tennis Pro Shop on May 27, 2000.


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United States v. Barton, No. 03-0272/NA


judge recites these factual allegations within the elements of

offenses during a guilty plea inquiry.    I am not aware of a post

Care case that found an adequate factual basis for a guilty plea

solely from an accused’s acknowledgement of the elements of an

offense.   “[T]he military judge must elicit ‘factual

circumstances as revealed by the accused himself’[.]”    Jordan,

57 M.J. at 238 (quoting United States v. Davenport, 9 M.J. 364,

367 (C.M.A. 1980)).    Appellant himself revealed nothing about

value and nothing about his specific intent to steal items of a

value of over $100.3

     Appellant’s specific intent to steal merchandise of a value

of more than $100 related directly to the maximum punishment.

At the time of Appellant’s trial, the maximum sentence for

larceny of property of a value of more than $100 included five

years confinement, whereas larceny of property of a value of

$100 or less included confinement for only six months.      See

Manual for Courts-Martial, United States (2000 ed.), Part IV,

para. 46.e.(1)(a)-(b).    This distinction in the maximum



3
  A common sense review would lead one to the conclusion that
Appellant was unlikely to conspire to steal less than $100 from
the Powerzone – a conclusion that is supported by the fact that
when Appellant was ultimately successful in breaking into the
Powerzone, he and his co-conspirators stole approximately
$10,000 in merchandise. Common sense, however useful as it is
in approaching a variety of legal issues, is not a substitute
for the requirement that the record must contain the factual
basis for a guilty plea.


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United States v. Barton, No. 03-0272/NA


punishment applies also to the offense of conspiracy to commit

larceny.   Manual for Courts-Martial, United States (2002 ed.),

Part IV, para. 5.e.   The issue on appeal in this case did not

merely involve a simple fact, but rather involved a distinction

of consequence that was not developed properly on the record of

trial.

     This providence inquiry fails to meet the requirements of

Article 45, Care and its progeny or R.C.M. 910.   There is simply

no factual predicate based upon questioning of the accused, the

stipulation, or other facts in the record that establishes

Appellant intended to steal property of a value over $100.   The

omission here is substantial.

     I would affirm only so much of the finding of guilty of

Specification 2 of Charge I as provides that Appellant conspired

to commit larceny of merchandise of some value.   However, as I

am convinced that Appellant suffered no substantial prejudice

with respect to sentencing, I would affirm the sentence.




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