                                     CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                              Before
                                    YOB, LIND, and KRAUSS 1
                                     Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                         Staff Sergeant BENJAMIN D. BARNES
                              United States Army, Appellant

                                        ARMY 20110361

                         Headquarters, United States Army Alaska
                             Mark A. Bridges, Military Judge
                     Colonel Randall J. Bagwell, Staff Judge Advocate


For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Lieutenant Colonel
Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on
brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Elisabeth A. Claus, JA; Captain T. Campbell Warner, JA (on brief).


                                         9 January 2014
                                   ----------------------------------
                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

YOB, Senior Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of absence without leave for a period of thirteen hours
terminated by apprehension (the Specification of Additional Charge II) and a
violation of a lawful general regulation for wrongful use of a government credit card

1
 Senior Judge YOB took final action on this case prior to his permanent change of
duty station.
BARNES — ARMY 20110361

(the Specification of Additional Charge I) in violation of Articles 86 and 92,
Uniform Code of Military Justice, 10 U.S.C. §§ 886, 892 (2006) [hereinafter UCMJ].
Contrary to appellant’s pleas, the military judge convicted appellant of a violation of
a lawful general regulation for misuse of a government telephone (the Specification
of Charge I), larceny of prepared food of a value of $8.78 (Specification 1 of Charge
II), and larceny of gasoline of a value of $205.97 (Specification 2 of Charge II) in
violation of Articles 92 and 121, UCMJ, 10 U.S.C. §§ 892, 921 (2006). 2 The
military judge sentenced appellant to a bad-conduct discharge, confinement for three
months, and reduction to the grade of E-1. The convening authority approved the
adjudged sentence and credited appellant with ten days against the sentence to
confinement.

       This case is before the court for review under Article 66, UCMJ. Appellant
raises three assignments of error, one of which alleges the military judge erred when
he refused to accept appellant’s guilty pleas to Charges I, II, and III and their
specifications. The government concedes the judge’s actions constituted prejudicial
error and that the proper remedy is for this court to apply the terms of appellant’s
pretrial agreement by approving a sentence consistent with its terms . We agree with
the parties and will provide relief in our decretal paragraph . Our action in response
to this assignment of error renders it unnecessary to address the remaining two
assigned errors.

                                     Background

       Charges I, II, and III arose from appellant’s alleged theft of mail from another
soldier while appellant was on staff duty for his unit on 1 July 2010. The stolen
mail contained a credit card, which was intended for the recipient as a replacement
for another card that had expired. Appellant took the credit card and entered his
unit’s command suite. Appellant was able to access the command suite after -hours
because he possessed a master key by virtue of being the staff duty non -
commissioned officer. Once inside the suite, appellant used one of the telephones to
call the company that issued the credit card and activate the card. In the days
following, appellant used the card several times to purchase fast food and gasoline.
Appellant also used his cellular phone to make a payment of $152.14 to a company
called Network Telephone Services with the stolen credit card.



2
 The military judge found appellant not guilty of two other specifications of larceny
of prepared food (Specifications 3 and 4 of Char ge II), one specification of stealing
mail matter (Specification 1 of Charge III), and one specification of obtaining
services under false pretenses (Specification 2 of Charge III).




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       All of the charges made by appellant with the stolen card occurred between
2 July and 12 July 2010. The true owner of the credit card had a habit of monitoring
his credit card purchases via the int ernet. When the owner noticed unauthorized
charges appearing on his account during the first part of July 2010, he contacted the
credit card issuer who deactivated the card, rendering it useless.

        After preferral of the charges related to the stolen mail and credit card,
appellant committed additional offenses by using his government issued credit card
for unofficial, personal purchases during January and February 2011. At that time,
appellant knew this card was only authorized for purchases related to his official
duties. Furthermore, on 24 February 2011, appellant was not present for duty on
post at 0800 as required. Instead, he had traveled to a remote area wh ere he
intended to commit suicide. Thirteen hours later, prior to attempting to take his own
life, he was apprehended by civilian law enforcement and returned to military
control. These later offenses of violating a lawful general regulation by misusing
his official credit card and unauthorized absence without leave were included as the
Additional Charges in appellant’s court-martial.

      Appellant entered into a pretrial agreement with the convening authority to
plead guilty to all charges and specificatio ns. In exchange, the convening authority
agreed to disapprove any adjudged punitive discharge and any reduction in grade
below E-4.

       During the providence inquiry, appellant told the military judge he had no
recollection of committing the offenses related to the mail theft and stolen credit
card, including no recollection of ever using the card. Appellant stated he did
remember his actions that constituted the Additional Charges concerning wrongful
use of his government-issued credit card and the thirteen-hour absence without leave
terminated by apprehension. Appellant did not assert any defense based on lack of
mental responsibility. In fact, he specifically disclaimed any such defense, and
explained to the military judge that he was certain after talking to his treating
physicians that he did not commit the acts alleged in an unconscious state, but
instead committed them with full consciousness and understanding, only to have
later forgotten what he did. He described this as a situ ation similar to having
amnesia.

       During the colloquy, appellant explained that, despite his inability to
remember his actions, he believed he was guilty of the offenses. Appellant reached
this conclusion after reviewing the government’s evidence, which provided reliable
proof to appellant that he alone was in the position to steal the mail; activate the
stolen card using the command suite telephone; use the card for purchases associated
with his phone; and to make the other purchases alleged. In fact, the evidence
included a photograph showing appellant using the stolen card to complete a
purchase at a fast-food restaurant located at a military installation.



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       Throughout the inquiry, appellant maintained his belief that he was guilty of
the offenses. He never offered any statement that would contradict his pleas and he
never raised any defenses that could result in a finding of not guilty in a contested
case. At the conclusion of the inquiry, the military judge commented that “there’s
plenty of circumstantial evidence that suggests [appellant]’s the one who committed
these offense” but that “there is no direct evidence other than potentially one picture
of [appellant] being at the—at the food vendor, when [the] card was used.” Based
on this, the military judge found appellant’s pleas to Charges I , II, III and their
specifications to be improvident. Defense counsel did not formally object to the
military judge’s determination that appellant’s pleas were improvident.

       After a recess, the government informed the military judge the convening
authority was withdrawing from the pretrial agreement. At a later session, the
military judge accepted appellant’s pleas of guilty to the Additional Charges and
their specifications. Appellant pleaded not guilty to all of the specifications of
Charges I, II, and III. The military judge found appellant guilty of the Specification
of Charge I and Specifications 1 and 2 of Charge II . The military judge found
appellant not guilty of the remaining offenses, including Specification 2 of Charge
III, which alleged the theft of services from Network Telephone Services. The
military judge explained the basis for this finding of not guilty was the government’s
failure to present any evidence the credit card charges were for services and not for
some other purpose, such as the purchase of goods. However, the judge added that
he did find appellant’s personal cellular phone number was used in connection with
the stolen credit card, and he considered this as evidence to support his findings of
guilt to the other offenses related to the stolen credit card.

                                  Law and Analysis

       Given appellant’s failure to object to the ruling on providence at trial, we
must conduct a plain error review. United States v. Parker, 62 M.J. 459, 465
(C.A.A.F. 2006) (citing United States v. Powell, 49 M.J. 460, 465 (C.A.A.F. 1998)).
Under plain error review, appellant has the burden of demonstrating that: (1) there
was error; (2) the error was plain or obvious; and (3) the error materially prejudiced
a substantial right of the accused. United States v. Warner,      M.J.    , slip op. at
4-5 (C.A.A.F. 6 Dec. 2013) (citation and quotation marks omitted).

       A military judge has the responsibility to conduct a thorough inquiry to ensure
there is an “adequate basis in law and fact to support the plea before accepting it.”
United States v. Inabinette, 66 M.J. 320, 321-22 (C.A.A.F. 2008) (citing United
States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). In determining whether a guilty
plea is provident, the military judge may consider the stipulation of fact, the
colloquy with appellant, and any reasonable inferences drawn therefrom. United




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States v. Hardeman, 59 M.J. 389, 391 (C.A.A.F. 2004) (citing United States v. Care,
18 U.S.C.M.A. 535, 540, 40 C.M.R. 247, 252 (1969)).

       “The decision of a military judge to reject a guilty plea will not be overturned
unless it is arbitrary.” Parker, 62 M.J. at 460 (citing United States v. Penister, 25
M.J. 148, 152 (C.M.A. 1987)).

      The question in this case hinges on whether the lengthy and detailed
providence inquiry allowed the military judge to conclude appellant established an
adequate factual basis of his guilt and that appellant was convinced of his guilt.

       “A valid guilty plea requires [a]ppellant to admit his guilt and articulate those
facts that objectively establish his guilt.” United States v. Jones, 69 M.J. 294, 299
(C.A.A.F. 2011) (citing United States v. Davenport, 9 M.J. 364, 366-67 (C.M.A.
1980)). “If an accused is personally convinced of his guilt based upon an
assessment of the government’s evidence, his inability to recall the specific facts
underlying his offense without assistance does not preclude his guilty plea from
being provident.” Id. (citing United States v. Moglia, 3 M.J. 216, 218 (C.M.A.
1977)). “A fortiori, reliance on information provided in the stipulation of fact or by
defense counsel does not raise a substantial basis in law or fact to question the
plea.” Id. (citing United States v. Luebs, 20 U.S.C.M.A. 475, 476, 43 C.M.R. 315,
316 (1971)). See also Rule for Courts-Martial [hereinafter R.C.M.] 910(e)
discussion (“The accused need not describe from personal recollection all the
circumstances necessary to establish a factual basis for the plea. Nevertheless the
accused must be convinced of, and able to describe all the facts necessary to
establish guilt.”).

      As this court stated in United States v. Axelson:

              As long as amnesia does “not preclude him from
              intelligently cooperating in his defense or taking the stand
              on his own behalf . . . [and] his amnesic condition [does
              not] impair[] his ability to rationally examine and assess
              the strength of the [g]overnment’s evidence against him,”
              an accused may knowingly and voluntarily plead guilty. *

65 M.J. 501, 511 (Army Ct. Crim. App. 2007) (quoting United States v. Barreto, 57
M.J. 127, 130 (C.A.A.F. 2002)). This is true even for specific intent crimes, such as
larceny. See Penister, 25 M.J. at 152 (citing Luebs, 20 U.S.C.M.A. 475, 43 C.M.R.
315; United States v. Butler, 20 U.S.C.M.A. 247, 43 C.M.R. 87 (1971)).



* Corrected



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BARNES — ARMY 20110361

       After our review of the providence inquiry, we find the judge’s rejection of
the plea under the standards he articulated to be arbitrary. The judge appeared to
require direct or independent evidence to support the pleas. However, appellant
based his plea on reliable circumstantial and direct evidence. The evidence
appellant reviewed included his cellular phone records which showed appellant made
purchases with the credit card using his phone; phone logs which showed the card
was activated using the command suite phone on the night appellant was assigned to
staff duty; the fact that appellant was the only person present who had access to the
command suite on the night the card was activated; and a photograph showing
appellant making a purchase at a fast -food restaurant. During the colloquy,
appellant also continuously expressed his belief that he was guilty of the charged
offenses. “When, as here, an accused cannot recall all of the circumstan ces
surrounding his crimes, he may still plead guilty so long as he or she is personally
convinced of his guilt and is willing to admit that guilt to the military judge.”
Axelson, 65 M.J. at 511 (citations omitted). The misapplication of this standard, and
the failure of the military judge to articulate a reasonable basis to reject the plea,
rendered the judge’s decision arbitrary. 3

       We therefore find the military judge’s refusal to accept appellant’s guilty
pleas constitutes plain and obvious error. We also find this error materially
prejudiced the substantial rights of appellant by denying him the benefit of the
pretrial agreement. The agreement would have limited appellant’s approved
reduction in grade to only E-4 and also precluded the punitive discharge approved by
the convening authority as punishment .

       Having found appellant met his burden to prove plain error, we now turn to
the appropriate remedy. Prior to conducting a providence inquiry for the Additional
Charges and their specifications, the military judge stated that he recognized
appellant, at the previous session, “did want to plead guilty and tried to plead guilty
to those offenses [Charges I, II, and III and their specifications], although I wouldn’t
allow him to do that.” Given this statement by the military judge and our conclusion
concerning the error in failing to accept appellant’s pleas, it cannot be said that
appellant failed to fulfill any material promise or condition under the terms of the
pretrial agreement that would allow the convening authority to withdra w from the

3
 We nonetheless commend the military judge for conducting a thorough, lengthy,
and detailed providence inquiry. We also recognize, as our superior court did in
Penister: “In light of this Court’ s opinions emphasizing this responsibilit y [to
ensure a plea is provident] , it is understandable that a judge may err on the side
of caution and not accept a guilt y plea when there is any question as to its
providence.” 25 M.J. at 152.




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agreement. R.C.M. 705(d)(4)(B). See Penister, 25 M.J. at 152 (“[I]f a guilty plea is
arbitrarily rejected, we doubt that such an event can be considered failure by the
accused to fulfill any material promise or condition in the agreement. Likewise, if
the military judge rejects a provident guilty plea because of a misapplication or
misunderstanding of the law, this can hardly be deemed failure by the accused. ”)
(internal citations and quotation marks omitted). The Government concedes that the
convening authority should have been bound by the agreement and that appellant
should now retain the benefit of the agreement. See United States v. Clayton, 25
M.J. 888 (A.C.M.R. 1988).

       We recognize appellant originally agreed to plead guilty to all charges and
specifications, but was ultimately found guilty of only some of these offenses.
However, we are confident after review of the entire record, to include appellant’s
requested relief and the government’s concessio n, that enforcement of the maximum
punishment available under the terms of the plea agreement cures the prejudicial
error in this case. See United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986);
United States v. Winckelmann,      M.J.     , slip op. at 12-13 (C.A.A.F. 18 Dec.
2013).

                                    Conclusion

       The findings of guilty are AFFIRMED. Reassessing the sentence on the basis
of the error noted, the entire record, and in accordance with the principles of Sales
and Winckelmann, the court affirms only so much of the sentence as provides for
confinement for three months and reduction to the grade of E -4. We also find such a
sentence to be appropriate in light of the entire record. See UCMJ art. 66(c). All
rights, privileges, and property, of which appellant has been deprived by virtue of
that portion of his sentence set aside by the decision, are ordered restored. See
UMCJ arts. 58a(b), 58b(c), and 75(a).

      Judge LIND and Judge KRAUSS concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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