                       UNITED STATES, Appellee

                                    v.

                       Tye L. EDWARDS, Private
                         U.S. Army, Appellant

                              No. 10-0481

                       Crim. App. No. 20090257

       United States Court of Appeals for the Armed Forces

                       Argued December 14, 2010

                       Decided February 9, 2011

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.

                                 Counsel


For Appellant: Captain Kristin McGrory (argued); Colonel Mark
Tellitocci, Lieutenant Colonel Imogene M. Jamison, Lieutenant
Colonel Jonathan Potter, Major Peter Kageleiry, and Captain
Brent A. Goodwin (on brief); Major Timothy W. Thomas and Captain
Todd Lindquist.

For Appellee: Captain Nathan S. Mammen (argued); Colonel
Michael E. Mulligan, Major Christopher B. Burgess, and Captain
Stephen E. Latino (on brief).

Military Judge:   Patrick J. Parrish


       This opinion is subject to revision before final publication.
United States v. Edwards, No. 10-0481/AR

     Judge ERDMANN delivered the opinion of the court.

     Private Tye L. Edwards entered guilty pleas to a number of

offenses including escape from confinement in violation of

Article 95, Uniform Code of Military Justice (UCMJ).1    A military

judge sitting as a general court-martial found him guilty of all

charges and sentenced him to eighteen months confinement and a

bad-conduct discharge.   In accord with the pretrial agreement,

the convening authority approved four months of the confinement

and the punitive discharge.   The United States Army Court of

Criminal Appeals (CCA) summarily affirmed the findings and the

sentence.   United States v. Edwards, No. ARMY 20090257 (A. Ct.

Crim. App. Apr. 30, 2010).

     Whether an accused is guilty of escape from custody or

escape from confinement logically depends upon the accused’s

status at the time of the escape.    Article 95, UCMJ, 10 U.S.C. §

895 (2006).   We granted review in this case to determine whether

the military judge erred in accepting Edwards’ guilty plea to




1
  In addition to the offense of escape from confinement, Edwards
entered guilty pleas to the following offenses: failure to go
his appointed place of duty; absence without leave (AWOL);
willfully disobeying an officer; assaulting an officer;
willfully disobeying a noncommissioned officer; assaulting a
noncommissioned officer; wrongful use of marijuana; and unlawful
entry, in violation of Articles 86, 90, 91, 112a, and 134, UCMJ.



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United States v. Edwards, No. 10-0481/AR

escape from confinement.2    We hold that Edwards was in custody

rather than confinement at the time of his escape and his guilty

plea to escape from confinement was therefore not provident.

                              Background

       As a result of a series of misconduct incidents, Edwards

was brought to meet with his company commander.     His commander

ordered him to surrender his military identification card to

restrict his freedom of movement.      Edwards refused and his

commander instructed the company first sergeant to call the

military police.    Edwards then attempted to leave the company

headquarters and after grabbing his commander and scuffling with

three senior noncommissioned officers, he was eventually

subdued.    His company commander ordered him into pretrial

confinement and he was placed in hand and leg irons.

       Prior to being taken to the confinement facility and prior

to his pretrial confinement hearing, Edwards was taken to see a

trial defense attorney.     Once at the defense attorney’s office,

Edwards’ shackles were removed while he met with his attorney.



2
    We granted review of the following issue:

     Whether there is a substantial basis in law and fact to
     question Appellant’s plea to escape from confinement given
     that at the time of the alleged offense he was neither
     within a confinement facility nor under guard or escort
     after having been placed in a confinement facility.

United States v. Edwards, 69 M.J. 243 (C.A.A.F. 2010) (order
granting review).

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United States v. Edwards, No. 10-0481/AR

After his defense attorney dismissed him to return to the

adjacent waiting area, Edwards left the building without

authorization.   It was this “escape” that resulted in the charge

of “escape from confinement” which Edwards now challenges.3

     Following the entry of Edwards’ guilty pleas, the military

judge conducted the providence inquiry.    In reference to the

offense of escape from confinement the military judge properly

informed Edwards of the elements of the offense and then defined

“confinement,” in part, as “the physical restraint of a person

within a confinement facility or under guard or escort after

having been placed in a confinement facility.”   During the

providence inquiry Edwards admitted that his company commander

had ordered him into confinement and that she was authorized to

do so.   He further admitted that when he left the trial defense

attorney’s office he had not been released from confinement.4

                            Discussion

     This court “review[s] a military judge’s decision to accept

a guilty plea for an abuse of discretion and questions of law

arising from the guilty plea de novo.”    United States v.


3
  Edwards remained AWOL until he was arrested for traffic
violations over two weeks later.
4
  The military judge did not question Edwards to ensure his
understanding of the terms “confinement” and “confinement
status” during the providence inquiry, nor did he note the
conflict between his definition of “confinement” and Edwards’
explanation of his “escape” prior to being taken to a
confinement facility.

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United States v. Edwards, No. 10-0481/AR

Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).    “In doing so, we

apply the substantial basis test, looking at whether there is

something in the record of trial, with regard to the factual

basis or the law, that would raise a substantial question

regarding the appellant’s guilty plea.”    Id.

     Article 95, UCMJ, provides that “[a]ny person subject to

this chapter who . . . escapes from custody or confinement;

shall be punished as a court-martial may direct.”   While the

UCMJ does not define custody, it does reference the term in

Article 7, UCMJ, which provides that “[a]pprehension is the

taking of a person into custody.”    The Manual for Courts-Martial

(MCM), however, defines “custody” to be the:

     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 continue until other restraint
     (arrest, restriction, confinement) is imposed or the
     person is released.

MCM pt. IV, para. 19.c(4)(a) (2008 ed).

     “Confinement” is defined by Article 9, UCMJ, as “the

physical restraint of a person” and is further defined by the

MCM to be physical restraint imposed under, inter alia, Rule for

Courts-Martial (R.C.M.) 305 (pretrial confinement).   MCM pt. IV,

para. 19.c(5)(a).   Moreover, R.C.M. 304(d) states that

confinement is imposed by an order of competent authority “by



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United States v. Edwards, No. 10-0481/AR

the delivery of a person to a place of confinement.”      The UCMJ

and the MCM establish a continuum from custody to other forms of

restraint, i.e., arrest, restriction, and confinement.      On

several occasions over the years, this court has dealt with the

question as to where an accused was located on this continuum

when he escaped.

     In United States v. Ellsey, 37 C.M.R. 75, 78 (C.M.A. 1966),

this court determined that custody and confinement are entirely

different in nature.   In Ellsey an accused who had been ordered

into confinement was taken into custody for delivery to the

confinement facility, but escaped before “delivery could be

effected and confinement actually imposed upon him.”      Id. at 79.

Under those circumstances the court held that the proper offense

to charge was escape from custody rather than escape from

confinement.   Id.   In United States v. Felty, 12 M.J. 438

(C.M.A. 1982), overruled on other grounds by United States v.

Morton, 69 M.J. 12 (C.A.A.F. 2010), Felty had been placed in a

correctional facility but later was taken out and escorted by a

“chaser” to attend his pretrial confinement hearing before a

magistrate.    Following the hearing Felty misrepresented the

magistrate’s decision to the chaser and informed the chaser that

the magistrate had released him.       When the two stopped for chow,

Felty walked out the door.   Id. at 439-40.      He was subsequently

charged with unauthorized absence and escape from custody.       Id.



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United States v. Edwards, No. 10-0481/AR

at 440.   The court noted that once Felty had been confined in

the military confinement facility, he remained in a confinement

status until released by a proper authority.    Id. at 440-41.

Under those circumstances the court held that Felty should have

been charged with escape from confinement rather than escape

from custody.   Id. at 441.

      Before this court Edwards argues that since he was neither

“within a confinement facility” nor “under guard or escort after

having been placed in a confinement facility,” he was not in a

confinement status at the time of his escape.   He asserts that

his conviction for escape from confinement must be set aside

pursuant to this court’s decision in Ellsey.

      The Government relies on the Army Court of Criminal Appeals

decision in United States v. McDaniel, 52 M.J. 618 (A. Ct. Crim.

App. 1999), and argues that once Edwards was lawfully ordered

into confinement by his company commander and physical restraint

imposed, he was in a confinement status for purposes of Article

95, UCMJ.   In McDaniel, the Army court held that this court’s

decision in Felty, “blurred the distinction between confinement

and custody.”   Id. at 620.   The Army court found no specific

requirement in the MCM that a prisoner must be placed in a

confinement facility in order to be in a “confinement” status.

Id.   Notwithstanding Ellsey, the Army court held that placement




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United States v. Edwards, No. 10-0481/AR

in a confinement facility is unnecessary for the offense of

escape from confinement under Article 95, UCMJ.     Id. at 621.

     The issue as to whether “confinement” is effected by an

order to confinement and the imposition of some restraint as

urged by the Government, or by the actual imposition of

confinement, was settled by Ellsey and we see no need to alter

that holding.   Ellsey held that confinement must be actually

imposed to initiate confinement status, a holding that was not

altered by Felty.    Felty simply recognized that once an accused

is placed in a confinement status, he is in that status until

released by an authorized person.     If an accused escapes while

in a confinement status, even if he or she is being escorted

outside of a confinement facility, he has escaped from

confinement.    Felty, 12 M.J. at 441-42.   Ellsey remains good law

and McDaniel, to the extent it is inconsistent with Ellsey, was

wrongly decided.    Edwards had not been placed in a confinement

facility prior to his escape and his status remained that of

“custody” rather than “confinement.”5     Therefore his plea to

escape from confinement was not provident.

                             Conclusion

     The United States Army Court of Criminal Appeals decision

affirming Charge VI and its specification is reversed and Charge


5
  We reserve for another day the issue, raised in McDaniel but
not in this case, as to what constitutes a confinement facility
for purposes of Article 95, UCMJ.

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United States v. Edwards, No. 10-0481/AR

VI and its specification are dismissed.    The remaining findings

of guilt and the sentence are affirmed.




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