UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                               LIND, KRAUSS, and PENLAND
                                  Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                        Private E1 MATTHEW M. DENTICE
                           United States Army, Appellant

                                      ARMY 20130591

                               Headquarters, Fort Riley
                           Jeffery R. Nance, Military Judge
                  Colonel Daniel G. Brookhart, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Vincent T. Shuler, JA; Captain Brian D. Andes, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan, JA (on brief).


                                       15 August 2014

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

LIND, Senior Judge:

      A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of attempted larceny of military property of a value more than
$500.00; absence without leave terminated by apprehension; damage to non-military
property; and assault consummated by a battery in violation of Articles 80, 86, 109,
and 128, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 880,
886, 909, 928 (2012). The military judge sentenced appellant to a bad-conduct
discharge and seven months confinement. The convening authority approved the
adjudged sentence and credited appellant with 95 days against the sentence to
confinement.

       This case is before the court for review pursuant to Article 66, UCMJ.
Appellant argues that the Specification of Charge III (damaging non-military
property in violation of Article 109, UCMJ) fails to state an offense and that there is
a substantial basis in law and fact to question appellant’s plea of guilty to the same
DENTICE — ARMY 20130591
 
specification. We agree that there is a substantial basis in law and fact to question
appellant’s plea of guilty to the Specification of Charge III and will grant relief in
our decretal paragraph. We have also considered those matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
find they are without merit.

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (citing United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). A guilty plea will only be
set aside if we find a substantial basis in law or fact to question the plea. Id. (citing
Inabinette, 66 M.J. at 322). The court applies this “substantial basis” test by
determining whether the record raises a substantial question about the factual basis
of appellant’s guilty plea or the law underpinning the plea. Inabinette, 66 M.J. at
322; see also UCMJ art. 45(a); Rule for Courts-Martial [hereinafter R.C.M.] 910(e);
United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012) (“It is an abuse of discretion
for a military judge to accept a guilty plea without an adequate factual basis to
support it . . . [or] if the ruling is based on an erroneous view of the law.”).

       “The providence of a plea is based not only on the accused’s understanding
and recitation of the factual history of the crime, but also on an understanding of
how the law relates to those facts.” United States v. Medina, 66 M.J. 21, 26
(C.A.A.F. 2008) (citing United States v. Care, 18 U.S.C.M.A. 535, 538-39,
40 C.M.R. 247, 250-51 (1969)). An accused must understand “the nature of the
charges brought against him . . . .” Id. This is due to the fact that “an accused has a
right to know to what offense and under what legal theory he or she is pleading
guilty.” Id. “An essential aspect of [accurately] informing [a]ppellant of the nature
of the offense is a correct definition of legal concepts. The judge’s failure to do so
may render the plea improvident.” United States v. Negron, 60 M.J. 136, 141
(C.A.A.F. 2004).

       Article 109, UCMJ, states: “Any person subject to this chapter who willfully
or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys or
damages any property other than military property of the United States shall be
punished as a court-martial may direct.” Manual for Courts-Martial, United States
(2012 ed.) [hereinafter MCM], pt. IV, ¶ 109.a.

       The Specification of Charge III alleged appellant: “did, at or near Fort Riley,
Kansas, on or about 27 February 2013, willfully and wrongfully damage by striking
with a knife the interior walls of his assigned on-post quarters, the amount of the
said damage being in the sum of less than $500.00, the property of Picerne Military
Housing.” When describing the charge, the military judge told appellant:

             [In] Charge III and its Specification . . . you are charged
             with willfully and wrongfully damaging personal property
             in violation of Article 109, UCMJ. By pleading guilty to

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DENTICE — ARMY 20130591
 
                             this offense, you are admitting that the following elements
                             are true and accurately describe what you did on this
                             occasion.

                             Element (1) That on or about 27 February 2013, at or near
                             Fort Riley, Kansas, you willfully and wrongfully damaged
                             certain personal property, that is, the interior wall[s] of
                             your assigned on-post quarters by striking them with a
                             knife.

(Emphasis added). The judge then described the remaining elements and also
explained to appellant: “property may be considered damaged if it has been
physically injured in any way.” *

       As our predecessor court acknowledged, “the root of the problem is the fact
that Article 109, UCMJ, proscribes two related but different offenses . . . . One
offense relates to the willful or reckless waste or spoliation of the real property of
another. The other offense relates to the willful and wrongful destruction of the
personal property of another.” United States v. Weaver, 48 C.M.R. 856, 856
(A.C.M.R. 1974) (partial emphasis omitted). Article 109, UCMJ, therefore provides
two different theories of liability for prosecution, each dependent on the nature of
the property at issue: real property or personal property.

       For offenses involving real property, “[t]he terms ‘wastes’ and ‘spoils’ as
used in this article refer to such wrongful acts of voluntary destruction of or
permanent damage to real property . . . .” MCM, pt. IV, ¶ 109.c(1) (emphasis
added). “To be destroyed, the property need not be completely demolished or
annihilated, but must be sufficiently injured to be useless for its intended purpose.
Damage consists of any physical injury to the property.” MCM, pt. IV, ¶ 109.c(2).
Whereas personal property need only be (intentionally) damaged or destroyed to
constitute an offense under Article 109, UCMJ, real property must be (intentionally
or recklessly) permanently damaged or destroyed to constitute an offense under
Article 109, UCJM. MCM, pt. IV, ¶ 109.c.

       We need not address the issue of whether the Specification of Charge III
states an offense because we find that appellant misunderstood the nature of the

                                                            
*
 The military judge instructed appellant in accordance with paragraph 3-33-2
(Nonmilitary Property—Personal Property—Destroying or Damaging (Article 109))
of the Military Judges’ Benchbook. Dep’t of Army, Pam. 27-9, Legal Services:
Military Judges’ Benchbook [hereinafter Benchbook], para. 3-33-2 (1 Jan. 2010).
He did not instruct appellant in accordance with paragraph 3-33-1 (Nonmilitary
Property—Real Property—Wasting or Spoiling (Article 109)) of the Benchbook.
Benchbook, para. 3-33-1.


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DENTICE — ARMY 20130591
 
offense to which he pleaded guilty. See Medina, 66 M.J. at 26. Thus, his plea was
not provident.

       The military judge erred by instructing appellant that he was pleading guilty
to damaging “personal property.” As the government now concedes, an interior wall
of on-post quarters is real, not personal, property. See Black’s Law Dictionary 1337
(9th ed. 2009) (defining “real property” as “[l]and and anything growing on,
attached to, or erected on it, excluding anything that may be severed without injury
to the land” and “personal property” as “[a]ny movable or intangible thing that is
subject to ownership and not classified as real property”). By defining a wall as
“personal property” rather than “real property,” the military judge did not inform
appellant that his “damage” to the wall must have been “permanent” to be convicted
under Article 109, UCMJ.

       As a result of these errors, we are not confident appellant understood the
nature of the offense of which he was charged and pleaded guilty. We therefore find
a substantial basis in law and fact to question appellant’s plea to the Specification of
Charge III.

                                   CONCLUSION

      The findings of guilty of Charge III and its Specification are set aside and
dismissed. The remaining findings of guilty are AFFIRMED.

      Reassessing the sentence on the basis of the errors noted, the entire record,
and applying the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986) and the factors set forth in United States v. Winckelmann, 73 M.J. 11, 15-16
(C.A.A.F. 2013), we are confident the military judge would have adjudged the same
sentence.

       There is no dramatic change in the penalty landscape or exposure. See
Winckelmann, 73 M.J. at 15-16; MCM, pt. IV, ¶ 33.e(1). Appellant’s maximum
sentence remains that of the jurisdictional limit of a special court-martial. See
MCM, pt. IV, ¶¶ 4.e, 10.e(2)(b), 46.e(1)(c), 54.e(2); UCMJ art. 19; R.C.M.
201(f)(2)(B). The gravamen of the offenses and the aggravating circumstances have
not changed. See Winckelmann, 73 M.J. at 16. Appellant remains convicted of an
assault consummated by a battery, absence without leave terminated by
apprehension, and attempted larceny of military property. The res gestae of the
assault offense demonstrates the aggravating conduct of appellant stabbing the wall
with a knife during the attack on his pregnant girlfriend. Because appellant was
tried by a judge alone, we are also more confident of the sentence the military judge
would have imposed for the remaining offenses. Id. Finally, this court reviews the
records of a substantial number of courts-martial involving larcenies, absences
without leave, and assaults, and we have extensive experience with the level of
sentences imposed for such offenses under various circumstances. See id.

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DENTICE — ARMY 20130591
 
       The sentence is AFFIRMED. 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 ordered restored.

      Judge KRAUSS and Judge PENLAND concur.

                                        FOR THE
                                        FOR  THECOURT:
                                                 COURT:




                                        MALCOLM
                                        MALCOLMH.H.SQUIRES,   JR.JR.
                                                        SQUIRES,
                                        Clerk
                                        ClerkofofCourt
                                                  Court




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