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

                           UNITED STATES, Appellee
                                         v.
                     Private First Class ANTONIO V. SHINE
                          United States Army, Appellant

                                   ARMY 20140101

          Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
                  Wade N. Faulkner, Military Judge (arraignment)
                      Gregory A. Gross, Military Judge (trial)
        Lieutenant Colonel Mary E. Card-Mina, Acting Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Captain J. David Hammond, JA.

For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed.


                                  22 December 2014

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                               SUMMARY DISPOSITION
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PENLAND, Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of three specifications of absence without leave from his unit,
one specification of failure to go to his appointed place of duty, and one
specification of fleeing apprehension in violation of Articles 86 and 95, Uniform
Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 886, 895 (2012). The
military judge sentenced appellant to a bad-conduct discharge, confinement for
180 days, forfeiture of $1,021.00 pay per month for six months, and reduction to the
grade of E-1. The convening authority approved only so much of the sentence as
provided for a bad-conduct discharge, confinement for 180 days , and reduction to
the grade of E-1 and credited appellant with 154 days against the sentence to
confinement.

       This case is before the court for review under Article 66, UCMJ. Appellant
submitted the case on its merits. Upon our review of the record, we hold the
military judge abused his discretion by accepting appellant’s pleas of guilty to
SHINE — ARMY 20140101

Specification 3 of Charge I (absence without leave from his unit) and the
Specification of Charge II (fleeing apprehension). We will provide relief in our
decretal paragraph.

       Appellant was convicted of, inter alia, the following charges and
specifications:

                Charge I: Violation of the UCMJ, Article 86.

                Specification 3: In that [appellant], did, at or near Fort
                Sill, Oklahoma, on or about 4 July 2013, without
                authority, absent himself from his unit, to wit:
                Headquarters Detachment, 75th Fires Brigade, located at
                Fort Sill, Oklahoma, and did remain so absent until on or
                about 9 July 2013.

                Charge II: Violation of the UCMJ, Article 95.

                The Specification: In that [appellant], did, at or near Fort
                Sill, Oklahoma, on or about 16 July 2013, flee
                apprehension by running from a noncommissioned officer,
                a person authorized to apprehend the accused.

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. 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 United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). The
court applies this “substantial basis” test by determining whether the re cord raises a
substantial question about the factual basis of appellant’s guilty plea or the law
underpinning the plea. Id.; see also UCMJ art. 45(a); Rule for Courts-Martial
[hereinafter R.C.M.] 910(e).

         During the providence inquiry involving Specification 3 of Charge I
(absence without leave from his unit), the military judge and appellant engaged in
the following exchange: 1

                ACC: 4 July was simple-- it was a weekend, I remember
                that. I was--this was my first time ever serving extra duty.



1
    There was no stipulation of fact in this case.




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SHINE — ARMY 20140101

             I had not known--I did not know that I was supposed to
             report.

             MJ: Now, this isn’t an FTR. This is another AWOL
             where you actually left your unit.

             ACC: On 4 July--it was the 4 July and I had assumed, at
             that time, no one had instructed me that I had to repo rt
             that day. So, I had taken in to my own accord that I didn’t
             have to show up that day.

             MJ: On the 4 July because it’s a holiday?

             ACC: Yes, sir.

             ...

             MJ: So you live on post?

             ACC: No, I lived off post, sir.

       Appellant apparently believed that during the 2013 Independence Day
weekend—beginning on Thursday, 4 July and ending on Sunday, 7 July—all soldiers
in his unit were in a non-duty status, consistent with Army custom. Appellant
considered himself similarly at liberty during this period. The military judge did not
explore the sincerity and reasonableness of this mistaken belief. If an appellant
“‘sets up a matter inconsistent with the plea’ . . . the military judge must either
resolve the apparent inconsistency or reject the plea.” United States v. Garcia, 44
M.J. 496, 498 (C.A.A.F. 1996) (quoting UCMJ art. 45(a)). The types of
inconsistencies contemplated by Article 45(a) , UCMJ, include matters that
reasonably raise the question of a defense. See United States v. Goodman, 70 M.J.
396, 399 (C.A.A.F. 2011) (citing United States v. Roane, 43 M.J. 93, 98 (C.A.A.F.
1995)). Appellant’s apparent understanding that he was authorized to be absent
between 4 July and 7 July, left unresolved by the judge, was inconsistent with his
guilty plea to an unauthorized absence from his unit .

       With regard to the period from Monday, 8 July to Tuesday, 9 July, we
recognize that these may have been duty days for appellant and that appellant may
have been absent without authority on these dates . However, while the military
judge elicited some evidence that appellant was absent from his place of duty on 8-9
July, the judge did not elicit sufficient facts to establish appellant absented himself
from his unit.




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SHINE — ARMY 20140101

      The military judge also accepted appellant’s gui lty plea to fleeing
apprehension; however, the providence inquiry established instead that appellant
escaped custody.

      Escape from custody is substantively different from fleeing apprehension.
Compare MCM, pt. IV, ¶ 95.b(4) (escape from custody), with ¶ 95.b(2) (fleeing
apprehension). See also United States v. Martucci, ARMY 20090572, 2012 CCA
LEXIS 44 (Army Ct. Crim. App. 27 Jan 2012) (summ. disp.) (per curiam).
“Custody” is defined as:

             restraint of free locomotion imposed by lawful
             apprehension. The restraint may be physical or, once
             there has been a submission to apprehension or a forcible
             taking into custody, it may consist of control exercised in
             the presence of the prisoner by official acts or orders.
             Custody is temporary restraint intended to c ontinue until
             other restraint (arrest, restriction, confinement) is imposed
             or the person is released.

MCM, pt. IV, ¶ 95.c(4)(a).

       On the alleged date, appellant was ordered into pretrial confinement. In
furtherance of that order, two non-commissioned officers (NCOs) escorted appellant
during the execution of prerequisite tasks. After the NCOs informed him that he was
going to pretrial confinement, appellant decided to run away and subsequently did
so, escaping their custody. 2

                                   CONCLUSION

       The findings of guilty of Specification 3 of Charge I and of Charge II 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, and in accordance
with the principles of United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013) and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986), we are
confident the military judge would have adjudged the same sentence. The sentence
is AFFIRMED. All rights, privileges, and property, of which appellant has been
2
 Even assuming, arguendo, that appellant was not in custody and that fleeing
apprehension was the correct legal description of appellant’s misconduct, the
military judge did not elicit a factual basis from appellant to establish that anyone
attempted to apprehend him.




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deprived by virtue of that portion of the findings set aside by this decision, are
ordered restored.

      Senior 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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