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

                              UNITED STATES, Appellee
                                           v.
                              Private E1 BRIAN E. KOCH
                             United States Army, Appellant

                                      ARMY 20110922

                       Headquarters, III Corps and Fort Hood
                          Patricia H. Lewis, Military Judge
                    Colonel Stuart W. Risch, Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA; Captain Kevin F. Sweeney, JA (on
brief).

For Appellee: Colonel John P. Carrell, JA; Major Elisabeth A. Claus, JA; Major
Robert A. Rodrigues, JA; Captain Benjamin W. Hogan, JA (on brief).


                                     23 December 2013

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

Senior Judge COOK:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of one specification of desertion, two specifications of absence
without leave, one specification of breaking arrest, one specification of larceny,
three specifications of forgery and two specifications of uttering checks without
sufficient funds, in violation of Articles 85, 86, 95, 121, 123 and 123a, Uniform
Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 885, 886, 895, 921, 923
and 923a (2006). The military judge sentenced appellant to a dishonorable
discharge, two years of confinement, total forfeiture of pay and allowances, and
reduction to E-1. The convening authority, pursuant to a pretrial agreement,
KOCH—ARMY 20110922

approved only 18 months of confinement but otherwise approved the adjudged
sentence. 1

      This case is before us pursuant to Article 66, UCMJ. Appellant raises three
assignments of error. Two merit discussion and one merits relief.

                                   BACKGROUND

                         Article 123, UCMJ Forgery Charge

       In October and November of 2010 and in March of 2011, appellant forged a
series of checks by falsely signing the name s of various people on multiple checks
and then offering these checks with the intent to defraud. These offenses are the
basis for Charge I’s three specifications of Article 123, UCMJ, forgery, specifically
“forgery by uttering,” one of two possible offenses under Article 123, UCMJ (the
other being “forgery by making or altering”).

       During the providence inquiry for the first t wo specifications of Charge I, the
military judge mistakenly listed the three elements associated with a forgery by
making or altering offense, instead of the five elements associated with the charged
offense of forgery by uttering. As a result, she failed to initially apprise the
appellant of two elements: that the appellant offered the checks and that at the time
the appellant offered the checks he knew the checks were falsely made. While
listing the elements for Specification 3 of Charge I, the military judge c overed the
five elements for a forgery by uttering offense, albeit awkwardly and out of order.

      During the colloquy with the military judge, despite the judge’s omission, the
appellant covered all five elements of each of the three specifications as charged,
admitting that he was guilty of each element. In addition, in the stipulation of fact
agreed to by the appellant and entered into evidence, the appellant admitted that he
was guilty of each of the five elements.

                      Article 95, UCMJ Breaking Arrest Charge

       On 22 April 2011, appellant, while in a deserter status, was apprehended by
local law enforcement officials in Princeton, Illinois. On 2 May 2011, the Princeton
police turned appellant over to Fort Leonard Wood Military Police who, in an effo rt
to facilitate appellant’s return to his Fort Hood unit, promptly placed appellant on a
plane in St. Louis, with a final destination of Killeen, Texas. The appellant’s flight
was not a direct one, however, and included a connecting flight through Dallas ,

1
 Appellant was credited with 173 days of credit against his sentence to confinement.
We also note that at the time of his court-martial, appellant already held the rank of
E-1.


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KOCH—ARMY 20110922

Texas. Rather than board his connecting flight, appellant deliberately missed this
flight and spent the weekend in Dallas. He then turned himself into a local
recruiting station the following Monday. This two-day frolic and detour formed the
basis for the Article 95, UCMJ breaking arrest charge.

      During the providence inquiry, the military judge listed the following
elements for the Article 95, UCMJ offense:

             That you were placed in arrest in Princeton, Illinois,
             by an individual authorized to order you into arrest; and
             That you went beyond the limits of your arrest before
             being released from that proper authority; and
             That this occurred at or near Dallas, Texas, on or
             about 30 April 2010, when you did break arrest.

The military judge defined “arrest” and further advised appellant that he could not
be convicted of breaking arrest unless the person who placed him in arrest was
authorized to order him into arrest.

       Appellant specifically stated during the colloquy with the mili tary judge that
the “person” who was authorized to place him under arrest and who actually placed
him under arrest was the Princeton Police. Government counsel later offered an
alternative theory, arguing that appellant had been placed under arrest by the Fort
Leonard Wood Military Police and had broken arrest by not boarding the flight to
Killeen. However, the military judge did not inquire into how the Princeton Polic e
Department or the Fort Leonard Wood Military Police qualified as a person
authorized to order the accused into arrest.

                              LAW AND DISCUSSION

         Sufficiency of Providence Inquiry Concerning Forgery by Uttering

       To find a guilty plea to be knowing and voluntary, “the record of trial ‘must
reflect’ that the elements of ‘each offense ch arged have been explained to the
accused’ by the military judge.” United States vs. Redlinski, 58 M.J. 117, 119
(C.A.A.F. 2003) (citing United States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247
(1969)). A military judge’s failure to explain the relevant elements is reversible
error, unless “it is clear from the entire record that the accused knew the elements,
admitted them freely, and pleaded guilty because he was guilty.” Id. (quoting
United States v. Jones, 34 M.J. 270, 272 (C.M.A. 1992)). However, instead of
merely focusing on a military judge’s mechanical listing of offense elements, we
review the “entire record to determine whether an accused is aware of the elements,
either explicitly or inferentially.” Id. (citing Jones, 34 M.J. at 272) (additional
internal citations omitted.)



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KOCH—ARMY 20110922


             The five elements of forgery through uttering are:

             (1) That a certain signature or writing was falsely made
             or altered;
             (2) That the signature or writing was of a nature which
             would, if genuine, apparently impose a legal liab ility on
             another or change another’s legal rights or liabilities to
             that person’s prejudice;
             (3) That the accused uttered, offered, issued or transferred
             the signature or writing;
             (4) That at such time the accused knew that the signature or
             writing had been falsely made or altered; and
             (5) That the uttering, offering, issuing or transferring was
             with the intent to defraud.

Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt. IV, ¶
48.b.2

       The military judge failed to cover the fourth and fifth elements when she
discussed Specifications 1 and 2 of Charge I. She inartfully covered all five
elements of the third specification of this charge. However, based on our review of
the entire record, it is clear the appellant was aware of the requi site elements and
admitted them freely.

       First, the stipulation of fact not only covers the five elements for all three
specifications but contains an explanation concerning appellant’s misconduct for
each offense. A review of this stipulation gives us confidence that appellant was
aware of the requisite elements, admitted them freely, and pleaded guilty because he
was guilty. See Redlinski, 58 M.J. at 119.

      Second, when discussing each offense during the providence inquiry,
notwithstanding the judge’s omission, the appellant included each element in his
explanation of what he had done and why he was guilty of each specification.
Despite the military judge’s initial error in either not listing the proper elements or
doing so in a confusing manner, the appellant exhibited no confusion in personally
covering each of the elements, admitting them freely, and entering a guilty plea
because he was guilty.

      Based on the above, coupled with our review of the entire record, we conclude
appellant’s plea of guilty to forgery through uttering was provident.

           Sufficiency of Providence Inquiry Concerning Breaking Arrest




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KOCH—ARMY 20110922

       Although the military judge correctly listed the relevant elements of a
breaking arrest offense 2, a review of the entire record does not establish a sufficient
factual basis to find appellant’s guilty plea provident. As raised by appellant’s
counsel (and conceded by the government), the military judge abused her discretion 3
in accepting appellant’s guilty plea without eliciting an adequate factual basis
concerning whether the individual who ordered appellant into arrest was authorized
to do so.

       As the government posits in its brief, the military judge likely confused the
concept of “apprehension” 4 with “arrest” when she conducted the providence inquiry
for this offense. For Article 95, UCMJ purposes, an enlisted person, such as the
appellant, may only be ordered into pretrial arrest by a commissioned officer, or a
warrant, noncommissioned, or petty officer when authorized to do so by a
commanding officer with authority over the arrestee. R .C.M. 304(b)(2) and (3).
This definition does not include a civilian entity such as the Princeton, Illinois
Police Department, whom the appellant specifically identified as the arresting
authority.

      When government counsel later argued the Fort Leonard Wood Military Police
had ordered the appellant into arrest, the military judge failed to inquire into
whether this entity had been authorized by appellant’s commanding officer to order
appellant into pretrial arrest. The military judge therefore abused her discretion in
accepting appellant’s guilty plea to Charge VI and it s specification, and we will take
appropriate action in our decretal paragraph.

                                    CONCLUSION

       On consideration of the entire record, the findings of guilty of Charge VI and
its Specification, breaking arrest, are set aside and dismissed. We AFFIRM the
remaining findings of guilty.




2
  (1) That a certain person ordered the accused into arrest; (2) That said person was
authorized to order the accused into arrest; and (3) That the accused went beyond the
limits of arrest before being released from that arrest by proper authority. MCM],
pt. IV, ¶ 19.b.3
3
  A military judge’s acceptance of a guilty plea is reviewed for an abuse of
discretion. U.S. v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).
4
  “Any civilian officer having authority to apprehend offenders under laws of the
United States …” is authorized to apprehend a deserter from the armed forces.
Rules for Courts-Martial [hereinafter R.C.M.] 302 (b)(3) (emphasis added); Article
8, UCMJ. See also United States v. Khamsouk, 57 M.J. 282, 287 n.6 (C.A.A.F.
2002).


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KOCH—ARMY 20110922

       We are able to reassess the sentence on the basis of the error noted, and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated in United States v.
Winckelmann,        M.J.   , slip. op. at 12-13 (C.A.A.F. 18 Dec. 2013) and United
States v. Sales, 22 M.J. 305 (C.M.A. 1986).

      In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape or exposure which might cause us pause in reassessing appellant’s
sentence. Second, appellant pleaded guilty in a judge alone court -martial. Third,
we find the nature of the remaining offenses captures the gravamen of the original
charges and the significant circumstances surrounding appellant’s conduct remains
admissible and relevant to the remaining offenses. Finally, based on our e xperience,
we are familiar with the remaining offenses so that we may reliably determine what
sentence would have been imposed at trial.

       Having concluded we can reassess appellant’s sentence, pursuant to our
analysis, we AFFIRM the sentence as approved by the convening authority. We find
this affirmed sentence has purged the error and is also appropriate. All rights,
privileges and property, of which appellant has been deprived by virtue of that
portion of the findings set aside by this decision, are hereby ordered restored.

      Judge CAMPANELLA and Judge HAIGHT concur.




                                                  FOR THE COURT:




                                                  ANTHONY O. POTTINGER
                                                  Chief Deputy Clerk of Court




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