                         UNITED STATES, Appellee

                                         v.

                       Bryce M. PHILLIPS, Private
                          U.S. Army, Appellant

                                  No. 14-0199
                         Crim. App. No. 20120585

       United States Court of Appeals for the Armed Forces

                         Argued October 20, 2014

                         Decided January 6, 2015

STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., and ERDMANN, RYAN, and OHLSON, JJ., joined.


                                     Counsel


For Appellant: Captain Patrick A. Crocker (argued); Colonel
Kevin M. Boyle and Captain Aaron R. Inkenbrandt (on brief);
Lieutenant Colonel Jonathan F. Potter, Major Amy E. Nieman, and
Captain Robert N. Michaels.

For Appellee: Captain Daniel M. Goldberg (argued); Colonel John
P. Carrell and Lieutenant Colonel James L. Varley (on brief);
Captain Samuel Gabremariam.

Military Judges:    Mark A. Bridges and Craig S. Denney


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Phillips, No. 14-0199/AR


     Judge STUCKY delivered the opinion of the Court.

     A military judge accepted Appellant’s unconditional guilty

plea and convicted him, inter alia, of disobeying the order of

his superior commissioned officer restricting him to the

confines of the military installation.       We granted review to

consider whether the military judge should have rejected the

guilty pleas because the ultimate offense was breaking

restriction, a substantially less serious offense.       We hold that

there is no substantial basis in law or fact to question

Appellant’s guilty pleas.

                     I.     Posture of the Case

     In a pretrial agreement, the convening authority agreed to

refer Appellant’s case to a special court-martial and to

disapprove any adjudged confinement in excess of ten months, in

exchange for Appellant’s agreement to waive all waivable motions

and plead guilty to absence without leave, disobeying the order

of his superior commissioned officer, and using cocaine.

Articles 86, 90, 112a, Uniform Code of Military Justice (UCMJ),

10 U.S.C. §§ 886, 890, 912a (2012).       The military judge accepted

Appellant’s guilty pleas and sentenced him to a bad-conduct

discharge and confinement for nine months.       The convening

authority approved the sentence.       A panel of the United States

Army Court of Criminal Appeals (CCA) set aside the conviction

for disobeying the order of his superior commissioned officer


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under the ultimate offense doctrine but affirmed the approved

sentence.   United States v. Phillips, No. 20120585, 2013 CCA

LEXIS 779, at *2–*4, 2013 WL 5402231, at *1 (A. Ct. Crim. App.

Sept. 23, 2013).    The CCA granted the Government’s motion for

reconsideration and suggestion for reconsideration en banc.

United States v. Phillips, No. 20120585 (A. Ct. Crim. App. Nov.

8, 2013) (order).    Sitting en banc, the CCA held there was

nothing in the plea inquiry that would provide “a substantial

basis in law and fact to reject appellant’s plea of guilty,” and

affirmed the approved findings and sentence.    United States v.

Phillips, 73 M.J. 572, 574 (A. Ct. Crim. App. 2014) (en banc).

                           II.   Background

     Appellant absented himself from his unit, which he knew was

about to deploy, from about February 20, 2008, until March 3,

2010, when he turned himself in to military control.    After

returning to his unit, Appellant used cocaine in his barracks

room.   Appellant was charged with desertion and possession and

use of cocaine.    After arraignment, and at approximately the

date his trial was scheduled to begin (November 8, 2010),

Appellant again absented himself from his unit.    In the

stipulation of fact accompanying his guilty plea, Appellant

admitted that, among other reasons, he deserted to “impede the[]

criminal proceedings.”    During this second absence, Appellant

was incarcerated by civilian authorities after being convicted


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of two misdemeanor counts of exposing his genitals to a child.

Appellant returned to military control for the second time on

about March 2, 2012.

     On March 14, 2012, Appellant’s company commander personally

gave Appellant a written order restricting him to the confines

of the military installation.   Appellant signed an

acknowledgment that he received the order.   On about April 11,

2012, in violation of the order, Appellant drove off the

installation to visit and reside with his girlfriend.

     Consistent with his pretrial agreement, Appellant pled

guilty unconditionally to the charge and specification alleging

that he disobeyed the order of his superior commissioned

officer.

                         III.   Discussion

     This Court grants a military judge significant discretion

in deciding whether to accept an accused’s guilty pleas.    United

States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).     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. Finch, 73 M.J. 144, 148 (C.A.A.F. 2014).

     The ultimate offense doctrine has a lengthy military

history.   See William Winthrop, Military Law and Precedents, 573

(2d ed., Government Printing Office 1920) (1895).     It prohibited


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the escalation in severity of minor offenses “by charging them

as violations of orders or the willful disobedience of

superiors.”   United States v. Hargrove, 51 M.J. 408, 409

(C.A.A.F. 1999) (per curiam).

     Since enactment of the UCMJ, the President has recognized

the ultimate offense doctrine as it applies to the offense of

disobeying a superior commissioned officer under Article 90,

UCMJ:   “Disobedience of an order which has for its sole object

the attainment of some private end, or which is given for the

sole purpose of increasing the penalty for an offense which it

is expected the accused may commit, is not punishable under

[Article 90].”   Manual for Courts-Martial, United States (MCM)

ch. XXVIII, ¶ 169.b. (1951 ed.); accord MCM pt. IV,

¶ 14.c.(2)(a)(iv) (2012 ed.).    In a footnote to the Table of

Maximum Punishments, the President noted that the maximum

punishment for failing to obey a lawful order under Article 92,

UCMJ, 1 did not apply in those cases “wherein the accused is found

guilty of an offense which . . . is specifically listed

elsewhere in [the] table.” 2   MCM ch. XXV, ¶ 127.c. n.5 (1951

ed.).   This Court interpreted both of these provisions to permit

the escalated punishments where the superior officer’s order was


1
  Originally 50 U.S.C. § 686 (1950), now 10 U.S.C. § 892 (2012).
2
  Similar language was contained in subsequent MCMs but is not
part of the current MCM. Compare MCM pt. IV, ¶ 16.e. Note (2008
ed.), with MCM pt. IV, ¶ 16.e. (2012 ed.).

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made “with the full authority of his office, [thereby lifting]

it above the common ruck.”    United States v. Loos, 4 C.M.A. 478,

480, 16 C.M.R. 52, 54 (1954) (Article 92, UCMJ); see also United

States v. Ranney, 67 M.J. 297, 300 (C.A.A.F. 2009) (Article 90,

UCMJ); United States v. Byers, 40 M.J. 321, 323 (C.M.A. 1994)

(Article 90, UCMJ).

     Appellant now argues that his conviction for disobeying his

superior commissioned officer is an unwarranted escalation in

the severity of what is really the minor offense of breaking

restriction.   The maximum punishment for disobeying the order of

a superior commissioned officer in other than time of war

(Article 90, UCMJ), is a dishonorable discharge, confinement for

five years, and forfeiture of all pay and allowances.   MCM pt.

IV, ¶ 14.(e)(2) (2012 ed.).    Breaking restriction is a minor

offense endorsed by the President (Article 134, UCMJ, 10 U.S.C.

§ 934 (2012)), which carries a maximum sentence of confinement

for one month and forfeiture of two-thirds pay per month for one

month.   MCM, pt. IV, ¶ 102.e. (2012 ed.).

     During the plea inquiry, the military judge listed the

elements of the offense of disobeying the order of a superior

commissioned officer, defined statutory terms, and explained the

nature of the offense.   His explanation of terms included the

following:




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          “Willful disobedience” means an intentional
     defiance of authority. A superior commissioned
     officer includes the commanding officer of you, even
     if the officer is inferior in rank to you. A superior
     commissioned officer also includes any other
     commissioned officer of the same armed force as you
     who is superior in rank and not inferior in command to
     you.

          The command must be a lawful command. The
     command is illegal if it is unrelated to military duty
     and its sole purpose is to accomplish some private end
     that is arbitrary and unreasonable and/or if it is
     given for the sole purpose of increasing the
     punishment for an offense which is expected you may
     commit. As long as the command is understandable, the
     form of the command the method by which the command
     was communicated to you is not important. The
     combination, however, must amount to a command from
     your superior commissioned officer that is directly
     personal -- personally, to you -- directed personally
     to you. You must know that it is from your superior
     commissioned officer.

Emphasis added.

     The military judge then asked Appellant why he thought he

was guilty.   Appellant said: “Because I was residing off post

when I was clearly given a command to stay on post and not break

restriction, sir.”

     In determining the “ultimate offense,” we consider the

environment in which the order was given.   United States v.

Landwehr, 18 M.J. 355, 357 (C.M.A. 1984).   Appellant had two

lengthy absences, totaling more than three years, one of which

was admittedly undertaken to impede court-martial proceedings,

and a civilian conviction on two counts for exposing himself to

a child.   The order was issued in furtherance of a proper


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United States v. Phillips, No. 14-0199/AR


military function.   See id.    We conclude that, under the

circumstances of this case, Appellant failed to establish that

his commander gave the order of restriction solely to improperly

escalate the punishment.    Furthermore, to the extent our

previous jurisprudence suggests that the ultimate offense

doctrine for Article 90 may be more expansive than the

President’s language in MCM pt. IV, ¶ 14.c.(2)(a)(iv), by

testing to see whether the order was given “with the full

authority of his office, [thereby lifting] it above the common

ruck,” it is overruled. 3   Loos, 4 C.M.A. at 480, 16 C.M.R. at 54.

We bid farewell to that colorfully stated, unclear, standard and

rely solely on that set out in the MCM.     MCM pt. IV,

¶ 14.c.(2)(a)(iv).   In this case, therefore, the ultimate

offense doctrine has no application, and Appellant has failed to

establish a substantial basis in law or fact to question his

guilty pleas.

     Appellant also asserts that the military judge failed

during the plea inquiry to properly advise him of the nature of

the offense and ensure that Appellant established a factual

basis for his guilty plea.     Citing United States v. Castellano,

72 M.J. 217, 222 (C.A.A.F. 2013), and United States v. Hartman,

69 M.J. 467, 468 (C.A.A.F. 2011), Appellant alleges that the


3
  The application of the ultimate offense doctrine to Article 92,
UCMJ, is not currently before us.

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difference between the offenses of disobeying the order of a

superior commissioned officer and breaking restriction amounts

to “an ‘element’ or ‘ingredient’ of the charged offense,” that

the military judge was required to discuss with Appellant.

     Castellano and Hartman are inapposite.       Both cases involved

the military sodomy statute, Article 125, UCMJ, 10 U.S.C. § 925

(2012), that, on its face, prohibited both consensual and

nonconsensual sodomy.    Castellano, 72 M.J. at 218; Hartman, 69

M.J. at 467.   This Court recognized that application of the

sodomy statute to sexual activity between consenting adults

raised constitutional questions.       Hartman involved the failure

of the military judge to explain to an accused during a guilty

plea inquiry the difference between conduct that was

constitutionally protected and conduct that could be

legitimately punished.   69 M.J. at 468-69.     Castellano concerned

the failure of the military judge to instruct court members on

the difference between constitutionally protected conduct and

that which is subject to criminal sanction.      72 M.J. at 222–23.

There is no such constitutional issue in this case, and thus

nothing that would establish a substantial basis in law or fact

to question Appellant’s plea.     The distinction between an

Article 90 and an Article 134 offense does not require a Hartman

discussion at the plea inquiry.




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United States v. Phillips, No. 14-0199/AR


                          IV.   Judgment

  The judgment of the United States Army Court of Criminal

Appeals is affirmed.




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