

   
   
   
   U.S. v. Nelson



United States, Appellee
v.
Jason E. NELSON, Private
U.S. Army, Appellant
 
No. 98-1109
Crim. App. No. 9601144
 
United States Court of Appeals for the Armed
Forces
Argued June 2, 1999
Decided September 1, 1999
CRAWFORD, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ., joined.

Counsel
For Appellant: Captain Donald P. Chisholm
(argued); Colonel John T. Phelps II, Lieutenant Colonel Adele
H. Odegard, and Captain Kirsten V. Campbell-Brunson (on brief);
Major Holly S.G. Coffey and Captain Paul Fiorino.
For Appellee: Captain Arthur J. Coulter
(argued); Colonel Russell S. Estey, Lieutenant Colonel Eugene
R. Milhizer, and Major Patricia A. Ham (on brief).
Military Judge: Larry R. Dean
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

Judge CRAWFORD delivered the opinion of the
Court.
Contrary to his pleas, appellant was convicted
by officer members of absence without leave (AWOL), larceny (3 specifications),
forgery (6 specifications), altering a military identification card, and
false use of a military identification card, in violation of Articles 86,
121, 123, and 134, Uniform Code of Military Justice, 10 USC §§
886, 921, 923, and 934, respectively. The convening authority approved
the sentence of a dishonorable discharge, 4 years confinement, total forfeitures,
reduction to the lowest enlisted grade, and a reprimand. The Court of Criminal
Appeals affirmed the findings and sentence without an opinion. We granted
review of the following issue:

WHETHER APPELLANT WAS PREJUDICED BY THE MILITARY
JUDGES CLEARLY ERRONEOUS MISSTATEMENT OF THE LAW WHEN THE MILITARY JUDGE
STATED THAT THE GOVERNMENT WOULD BE ALLOWED TO USE STATEMENTS DURING APPELLANTS
CARE INQUIRY TO PROVE UP UNRELATED CHARGES AND, AS A RESULT OF HIS
MISSTATEMENT OF THE LAW, APPELLANT WITHDREW HIS GUILTY PLEA TO THE A.W.O.L.
CHARGE, AND WAS THUS UNABLE TO USE HIS GUILTY PLEA AS A MATTER IN EXTENUATION
AND MITIGATION.

We hold that appellant has not preserved this
issue.1

FACTS
Appellant sought to enter a plea of guilty
to AWOL. However, before entering the plea, appellant made a motion in
limine to preclude the use of his statements made during the providence
inquiry on the merits to prove up the other offenses. The judge denied
this motion, stating that if the evidence was relevant and could be appropriately
proven, he would allow it. As a result of this ruling, appellant withdrew
his plea of guilty to the AWOL charge.
Defense appellate counsel argues that because
of the judges erroneous ruling, appellant could not enter a guilty plea,
which would have been crucial evidence in extenuation and mitigation.

DISCUSSION
The military, not having an Alford2
plea, has a detailed procedure that must be followed before a military
judge can accept a guilty plea, ensuring that an innocent person does not
plead guilty. The judge must inform the accused personally of the nature
of the offenses; of any mandatory minimum punishment; of the maximum punishment;
of the right to representation by counsel; of the right to plead not
guilty; and that the plea is a waiver of certain
important rights, including the rights of confrontation and cross-examination.
RCM 910(c), Manual for Courts-Martial, United States (1998 ed.). To ensure
that there is a factual basis for the plea, the accused must answer questions
under oath in the presence of counsel that satisfy the judge that the plea
is provident. RCM 910(d) and (e). The judge also must determine that the
plea of guilty results from the accused's own willingness to plead guilty
and that he has not been coerced in any way. Id.
After acceptance of the plea, the accused is
entitled to the benefits of such a plea during sentencing by members, that
is, the court members are instructed: "A plea of guilty is a matter in
mitigation which must be considered along with all other facts and circumstances
of the case. Time, effort, and expense to the government (have been) (usually
are) saved by a plea of guilty. Such a plea may be the first step towards
rehabilitation." Military Judges' Benchbook at 101 (Dept. of the Army Pamphlet
27-9)(30 September 1996)).
As to the use in sentencing of an accuseds
statements made during a providence inquiry, we have stated: "[T]here is
no demonstrative right or wrong way to introduce evidence taken during
a guilty plea inquiry.... The judge should permit the parties ultimately
to choose a method of presentation." United States v. Figura, 44
MJ 308, 310 (1996). Since appellant did not enter a plea of guilty here,
there is no record from which to determine whether the Government would
have introduced the evidence, what the evidence would have been, and, assuming
there was a violation of appellants right, how it would have impacted
on appellant. See Luce v. United States, 469 U.S. 38 (1984);
United States v. Gee, 39 MJ 311 (CMA 1994).
Thus, we hold that appellant has not preserved
the issue of whether any statement made during his providence inquiry could
be considered as to unrelated charges. Cf. United States v. Gray,
51 MJ 1, 25 (1999); United States v. Figura, supra.
The decision of the United States Army Court
of Criminal Appeals is set aside. The record of trial is returned to the
Judge Advocate General for remand to that court, which will consider whether
appellant is within the class of persons who were entitled to relief under
United States v. Gorski, 47 MJ 370 (1997). If the court concludes
that appellant is within such class, the court will refer the case to the
Judge Advocate General for determination as to the amount of relief that
is warranted, if any. The decision on remand will be provided directly
to this Court when the decision becomes final. If the court concludes that
appellant is not within such class, the record will be returned directly
to this Court for further review.
FOOTNOTES:
1 The second issue,
however, requires us to remand the case. United States v. Messner,
No. 98-1013, ___ MJ ___ (April 29, 1999).
2
North Carolina v. Alford, 400 U.S. 25 (1970).

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