UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Private E2 WILLIAM J. HELTON
United States Army, Appellant

ARMY 20190094

Headquarters, United States Army Maneuver Center of Excellence
Wendy P. Daknis, Military Judge
Colonel Jackie L. Thompson, Jr., Staff Judge Advocate

For Appellant: Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D.
Pond, JA; Captain Benjamin A. Accinelli, JA; Major Timothy G. Burroughs, JA (on
brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Hannah E. Kaufman, JA; Lieutenant Colonel Teresa T. Phelps,
JA (on brief).

18 December 2019

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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

Appellant claims the military judge erred in accepting appellant’s plea of
guilty to violating a general regulation when the relevant paragraph was not
punitive. We find the military judge erred, set aside and dismiss the specification,
affirm the remaining findings of guilty, and reassess the sentence.

A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification of wrongful use of a controlled substance,
one specification of wrongful distribution of a controlled substance, and three
specifications of violating a lawful general regulation, in violation of Articles 112a
and 92, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 912a and 892. The
military judge sentenced appellant to a bad-conduct discharge, confinement for five
HELTON—ARMY 20190094

months, forfeiture of $1,000 pay per month for five months, and reduction to the
grade of E-1. Pursuant to a pretrial agreement, the convening authority approved
only so much of the sentence extending to a bad-conduct discharge, confinement for
four months, forfeiture of $1,000 pay per month for five months, and reduction to
the grade of E-1.

BACKGROUND
Misconduct

Appellant’s convictions stem from three separate encounters with law
enforcement. During the first incident, appellant failed to stop at a traffic light and
was pulled over by police on post. During the traffic stop, appellant told the police
officer he had a loaded Smith and Wesson .22 caliber pistol under his seat which
was not registered on post. The officer also observed a blue, plastic baggie
containing a white powdery substance on the passenger side floor between the seat
and door of appellant’s vehicle. Appellant consented to a search of his vehicle.
During the search, the officer found the pistol under the driver’s seat, two additional
clear plastic baggies containing a white powdery substance in the glove
compartment, and a folded twenty dollar bill in the console that contained a white
powdery substance later confirmed to be cocaine. Appellant admitted to law
enforcement that he consumed cocaine the day prior, which was confirmed by a
urinalysis. Appellant’s company commander referred him to the Army Substance
Abuse Program (ASAP).

The second incident occurred when appellant sold fifty-five purported ecstasy
pills (later determined to be methamphetamine) to another soldier, Private (E2) CM.
Private CM informed law enforcement of the purchase. Private CM also told law
enforcement about a previous occasion when appellant came to his barracks’ room
smoking a cigar filled with “Spice.”

The third incident occurred when law enforcement was investigating an
intoxicated driver in the parking lot of appellant’s barracks. During the
investigation, appellant was standing outside the barracks smoking a cigarette. One
of the officers noticed appellant smelled of alcohol. Appellant admitted he
consumed alcohol and was under the legal age. A breathalyzer confirmed the
presence of alcohol on appellant’s breath.

Guilty Plea
One of the Article 92, UCMJ specifications to which appellant pleaded guilty

alleged that, “[Appellant] did, at or near Fort Benning, Georgia, on or about 2
September 2018, violate a lawful general regulation, to wit: paragraph 3-2c, Army
HELTON—ARMY 20190094

Regulation (AR) 600-85, The Army Substance Abuse Program, dated 28 November
2016, by wrongfully drinking alcoholic beverages underage.”!

LAW AND DISCUSSION

Appellant asserts the military judge committed error in accepting appellant’s
plea of guilty to disobeying a general order because the relevant paragraph appellant
was charged with disobeying (paragraph 3-2c, AR 600-85), is not punitive. The
government concedes in its brief to this court that the military judge erred. We
agree.

“We review a military judge’s acceptance of a guilty plea for an abuse of
discretion.” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). We will not
overturn a military judge’s acceptance of a guilty plea unless the record of trial
shows a substantial basis in law and fact for questioning the guilty plea. United
States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991). A providence inquiry into a
guilty plea must establish that the accused believes and admits that he is guilty of
the offense, and that the factual circumstances admitted by the accused objectively
support the guilty plea. Untied States v. Garcia, 44 M.J. 496, 497-98 (C.A.A.F.
1996) (citing United States v. Higgins, 40 M.J. 67, 68 (C.M.A. 1994); Rule for
Courts-Martial [R.C.M.] 910(e)).

“(I]f a regulation does not contain language establishing that it is a punitive
regulation, a violation of the regulation is not a criminal offense under Article 92(1)
[UCMJ].” United States v. Shavrnoch, 49 M.J. 334, 336 (C.A.A.F. 1998).
Paragraph 3-2c of AR 600-85 does not contain language stating it is punitive.”
Accordingly, appellant pleaded guilty to a charge “[i]nvolving a legal standard that
does not constitute an offense under Article 92, UCMJ, undermining appellant’s
conviction ‘as a matter of law.’” Jd. at 339 (quoting United States v. Faircloth, 45
M.J. 172, 174 (C.A.A.F. 1996)) (citing Prater, 32 M.J. at 436).

 

' Army Regulation 600-85, The Army Substance Abuse Program, paragraph 3-2c (28
Nov. 2016) [AR 600-85] provides: “Underage drinking is prohibited. Army policy
governing the minimum age for dispensing, purchasing,.consuming, and possessing
alcoholic beverages is found in AR 215-1, chapter 10. Any underage Soldier using
alcoholic beverages will be referred to ASAP for screening within 5 working days
except when permitted by AR 215-1, paragraph 10-1f.”

* Other provisions in AR 600-85 specifically state that violations of that provision
are punishable under the UCMJ. See, e.g., paras. 4-2q, 4-11h, 10-2a, and 10-4a.
HELTON—ARMY 20190094
CONCLUSION

On consideration of the entire record, the finding of guilty as to Specification
3 of Charge II is SET ASIDE and DISMISSED. The remaining findings of guilty are
AFFIRMED.

In accordance with the principles articulated by our Superior Court in 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 able to reliably reassess the
sentence on the basis of the noted error. The remaining offenses capture the
gravamen of appellant’s offenses: using cocaine and “Spice,” distributing
methamphetamine, and failing to register a pistol. We are confident the military
judge would have adjudged a sentence of at least a bad-conduct discharge,
confinement for four months, forfeiture of $1,000 pay per month for five months,
and reduction to the grade of E-1. Accordingly, 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.
See UCM arts. 58b(c), 75(a).

Senior Judge BURTON and Judge FLEMING concur.

FOR THE COURT:

were

MALCOLM H. SQUIRES, JR.
Clerk of Court
