UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                             COOK, HAIGHT, and MAGGS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist CARL L. WILSON
                          United States Army, Appellant

                                   ARMY 20110969

                      Headquarters, III Corps and Fort Hood
                          James L. Varley, Military Judge
                   Colonel Stuart W. Risch, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Colonel Edye U. Moran, JA;
Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA
(on brief).

For Appellee: Major Robert A. Rodrigues, JA; Major Catherine L. Brantley, JA;
Captain Edward J. Whitford, JA (on brief).


                                      29 May 2013

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                               SUMMARY DISPOSITION
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MAGGS, Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of six specifications of absence without leave, two
specifications of violating a lawful general regulation, two specifications of
wrongful use of marijuana, and one specification of larceny of property of a value
over $500.00, in violation of Articles 86, 92, 112a, and 121, Uniform Code of
Military Justice, 10 U.S.C. §§ 886, 892, 912a, 921 (2008) [hereinafter UCMJ]. The
convening authority approved the adjudged sentence of a bad-conduct discharge,
confinement for five months, forfeiture of $900.00 pay per month for five months,
and reduction to the grade of E-1.

       This case is before this court pursuant to Article 66, UCMJ. Appellant’s sole
assignment of error is that the military judge erred by accepting appellant’s plea of
guilty to the larceny specification listed above. For the reasons described below, we
agree appellant’s plea of guilty should not have been accepted without further
WILSON—ARMY 20110969

inquiry by the military judge because appellant made inconsistent statements about
whether the stolen property was of a value greater than $500.00. We affirm the
findings and sentence, but only by exceptions and substitutions to the Specification
of Charge IV.

                                   BACKGROUND

       The Specification of Charge IV accused appellant of stealing a video game
console and various identified accessories totaling a value of more than $500.00 in
violation of Article 121, UCMJ. During the providence inquiry, appellant informed
the military judge that another soldier left the items with him while she performed
temporary duty at another location. Appellant unequivocally admitted that, acting
without authority, he took the items and sold them to a pawn shop for $75.00. But
appellant’s statements regarding the value of the property were inconsistent. When
asked about “the value of the property,” he initially said the value “was over 500
dollars.” Then after appellant explained how he had sold the property, the military
judge asked, “[w]hat was the actual value of the property?” Appellant answered,
“[i]t was over 300—about 350—350 dollars, sir.” The military judge later asked,
“So essentially you sold over 500 dollars worth of property for 75 dollars?”
Appellant answered, “Yes, sir.” Shortly afterward, appellant explained that he had
been present when the victim of his theft had originally purchased the property for
“around 550 dollars.” The military judge did not ask appellant to explain the
discrepancy between the $350.00 and $550.00 values that appellant placed on the
property. The stipulation of fact merely states appellant is guilty of the
specification as charged and fails to resolve this issue.

                              LAW AND DISCUSSION

       A guilty plea is not provident if there is “a substantial conflict between the
plea and the accused’s statements or other evidence.” United States v. Garcia, 44
M.J. 496, 498 (C.A.A.F. 1996). In such a case, a military judge abuses his or her
discretion by accepting the guilty plea without making further inquiries regarding
the conflict. See United States v. Watson, 71 M.J. 54, 58 (C.A.A.F. 2012).

       In this case, as described above, appellant’s statements created a substantial
conflict about whether the stolen property was worth more or less than $500.00 at
the time of the larceny. The difference in value is significant because the
specification at issue alleged the property was worth more than $500.00, thereby
increasing the maximum punishment from six months confinement to five years
confinement or, in this case, to the twelve month jurisdictional limitation of the
court. Compare Manual for Courts-Martial, United States (2008 ed.) [hereinafter
MCM] pt. IV, ¶ 46.e.(1)(b), with MCM, pt. IV, ¶ 46.e.(1)(d).




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WILSON—ARMY 20110969

       The government suggests that when appellant said the goods were worth only
$350.00, he was not talking about the value of the items in a legitimate market but
instead was referring to a discounted value in the context of selling stolen items
quickly. The government further argues this explanation eliminates any conflict
between the plea and appellant’s statement because the proper measure of the value
of stolen property for the purpose of Article 121, UCMJ, is the property’s
“legitimate market value at the time and place of the theft.” MCM, pt. IV, ¶
46.g.(1)(i).

      We cannot discern from the record whether the government’s interpretation of
what appellant meant is correct. On the contrary, we conclude that based on what
appellant said, the military judge should have made further inquiries to resolve the
substantial conflict about the value of the stolen property. Under these
circumstances, accepting the plea of guilty to the specification as written was an
abuse of discretion. As we have done in similar cases in which the value of stolen
property is not established, we can affirm the finding of guilty to the specification
only with exceptions and substitutions. See United States v. Harding, 61 M.J. 526,
529-530 (Army Ct Crim. App. 2005); United States v. Sibley, ARMY 20080037,
2008 WL 8104050 (Army Ct. Crim. App. 29 Aug. 2008) (summ. disp.). Specifically,
we affirm with exception to the words and figures “of a value exceeding $500.00,”
and substitute therefor the words “of some value.”

                                  CONCLUSION

      The court amends and affirms only so much of the finding of guilty of the
Specification of Charge IV as finds that:

             In that SPC Carl L. Wilson, U.S. Army, did, at or near
             Fort Hood, Texas, on or about 18 May 2011, steal a Sony
             Playstation 3 (PS3) with accessories to wit: PS3 console,
             two PS3 controllers, two charging cables, one MMA game,
             one Medal of Honor game, power cords, audio cords,
             standard HD cord, all of some value, all the property of
             Private First Class (E3) C.Q.S.

The remaining findings of guilty are AFFIRMED.

       This case involves very substantial misconduct in addition to the larceny of
the game console. Reassessing the sentence on the basis of the modified finding, the
entire record, and in accordance with the principles of United States v. Sales, 22
M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006),
to include the factors identified by Judge Baker in his concurring opinion, the
sentence as approved by the convening authority is AFFIRMED.




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WILSON—ARMY 20110969

    Senior Judge COOK and Judge HAIGHT concur.

                                FOR
                                 FOR THE COURT:
                                     THE COURT:




                                 MALCOLM H.
                                MALCOLM       H. SQUIRES,
                                                 SQUIRES,JR.
                                                           JR.
                                 Clerk of Court
                                Clerk of Court




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