UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             COOK, GALLAGHER, and HAIGHT
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                          v.
                        Private First Class DEREK J. FORIT
                           United States Army, Appellant

                                      ARMY 20110537

                             Headquarters, Fort Drum
                           Paul Almanza, Military Judge
           Lieutenant Colonel Robert L. Manley III, Staff Judge Advocate


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain Barbara A. Snow-Martone, JA (on brief).

For Appellee: Major Thomas E. Brzozowski, JA; Major Robert A. Rodrigues, JA
(on brief).


                                         29 May 2013

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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

GALLAGHER, Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of absence without leave terminated by apprehension, absence
without leave, and wrongful use of a controlled substance in violation of Articles 86
and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 912a (2006)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement 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 five months, and reduction to the grade of E-1.

       This case is before us for review under Article 66, UCMJ. Appellate counsel
raised one issue to this court and appellant personally raised matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find the issue raised by
FORIT— ARMY 20110537

appellate counsel and the matters personally raised by appellant are without merit.
However, we find an additional matter is worth discussion and relief.

                                  BACKGROUND

       In the Specification of Charge I, appellant was charged with desertion with
the intent to remain away permanently. Prior to trial, appellant entered into a
pretrial agreement wherein he agreed to plead guilty to the lesser-included offense
of absence without leave terminated by apprehension and to the remaining charged
offenses in exchange for a cap on a sentence to confinement. In accordance with
this pretrial agreement, appellant entered into a stipulation of fact. As part of the
stipulation of fact, appellant agreed the facts contained in the stipulation could be
considered:

             a. by the military judge and on appeal to determine the
             providence of the accused’s guilty pleas;

             b. by the military judge and on appeal to determine the
             appropriate sentence, even if the evidence of such facts is
             deemed otherwise inadmissible; and

             c. by the convening authority to support a decision to
             grant or deny clemency, as appropriate.

Appellant further agreed that each enclosure attached to the stipulation of fact would
be incorporated into the stipulation and considered for the same purposes.

      At trial, consistent with the pretrial agreement, appellant pleaded guilty to
being absent without leave from 27 January 2008 until his absence was terminated
by apprehension on 28 April 2011. As part of the guilty plea inquiry, the military
judge ensured appellant understood the stipulation of fact, as well as its enclosures,
could be used to determine appellant’s guilt to the charged offenses and in
determining an appropriate sentence. Additionally, the military judge ensured
appellant admitted the contents contained in the stipulation of fact and its enclosures
were true, accurate, and uncontradicted. The military judge engaged in the
following dialogue with appellant:

             MJ: [Appellant], a stipulation of fact ordinarily cannot be
             contradicted. If it should be contradicted after I have
             accepted your guilty plea then I will reopen this inquiry.
             You should therefore let me know if there is anything
             whatsoever you disagree with or feel is untrue. Do you
             understand that?




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FORIT— ARMY 20110537

             ACC: Yes, sir.

             MJ: At this time I want you to read your copy of the
             stipulation silently to yourself, as I read it to myself.

             ACC: Yes, sir.

             MJ: And please look up when you are done. Also, make
             sure you read the entire document with all the enclosures.

Appellant then read Prosecution Exhibit 1 and its enclosures. Following his
acknowledgment of two administrative mistakes in the enclosures, the dialogue
continued as follows:

             MJ: [appellant] have you read Prosecution Exhibit 1 for
             identification?

             ACC: Yes, Sir.

             MJ: And is everything in that stipulation of fact true?

             ACC: Yes, it is, sir.

             MJ: Is there anything in the stipulation that you do not
             wish to admit is true?

             ACC: No, sir.

       A sworn statement provided by appellant on 9 May 2011 was attached to the
stipulation of fact as an enclosure. Within the sworn statement, appellant described
the circumstances surrounding his return to military control. He stated:

             I found out the sheriff had a warrant for me from the Army
             by my fiance’s [sic] aunt. She drove over to my house to
             tell me and I told her to send him to my house. So she
             called him back while I was with her and I waited for him
             to show up. He took me to jail and I was released the next
             night with orders to report back here.

      The military judge then, separately, questioned appellant on his guilt to the
charged offenses. At the outset of the questioning, the military judge listed the
elements for absence without leave terminated by apprehension but did not provide
any definitions for the offense. Appellant acknowledged he understood and admitted




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FORIT— ARMY 20110537

the elements as set forth by the military judge. In regards to his absence being
terminated by apprehension, appellant stated:

             I had just gotten off work and I came home, and a sheriff
             knocked on my door about an hour later saying I had an
             arrest warrant for desertion from the military, and they
             took me to jail and I was confined for 1 day, and I was
             released and I bought my own plane ticket and came back
             up here, sir.

       Based on his questions and appellant’s responses, the military judge found
appellant’s plea provident and accepted it. The military judge did not question
appellant on the apparent inconsistency between the attached enclosure and
appellant’s statements during the Care inquiry concerning appellant’s return to
military control.

                              LAW AND DISCUSSION

       For the reasons set forth below, we find a substantial basis in law and fact for
questioning the military judge’s acceptance of appellant’s guilty plea to absence
without leave terminated by apprehension. However, we find the guilty plea inquiry
establishes appellant’s guilt to the lesser-included offense of absence without leave.

        We review a military judge's acceptance of an accused's guilty plea for an
abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008);
United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). “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.” Inabinette, 66 M.J. at 322. “The military
judge shall not accept a plea of guilty without making such inquiry of the accused as
shall satisfy the military judge that there is a factual basis for the plea.” In order to
establish an adequate factual predicate for a guilty plea, the military judge must
elicit “factual circumstances as revealed by the accused himself [that] objectively
support that plea[.]” United States v. Davenport, 9 M.J. 364, 367 (CMA 1980).

       If an accused sets up a matter inconsistent with the plea at any time during a
guilty plea proceeding, the military judge must resolve the conflict or reject the plea.
UCMJ art. 45(a); see also Rule For Courts-Martial [herinafter R.C.M.] 910(h)(2).
Moreover, this court has held that “[t]o resolve a matter inconsistent with a guilty
plea, the military judge must, therefore, identify the particular inconsistency at issue
and explain its legal significance to the accused who must then retract, disclaim, or
explain the matter.” United States v. Rokey, 62 M.J. 516, 518 (Army Ct. Crim. App.
2005).




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FORIT— ARMY 20110537

       To sustain appellant’s plea of guilty to absence without leave terminated by
apprehension, the facts, as provided by appellant, must unequivocally establish
appellant’s absence was terminated by apprehension. The Manual for Courts-
Martial defines apprehension by civilian authorities at the request of the military as
requiring an absentee to be “taken into custody by civilian authorities at the request
of military authorities.” Manual for Courts-Martial, United States (2008 ed.)
[hereinafter MCM], pt IV, ¶ (c)(10)(a). To establish an absence was terminated by
apprehension, for purposes of Article 86, UCMJ, “the facts on the record must
establish [the] return to military control was involuntary.” United States v. Gaston,
62 M.J. 404, 405 (C.A.A.F. 2006). “Apprehension contemplates termination of the
accused’s absence in an involuntary manner; and termination otherwise is an absence
ended freely and voluntarily.” Id., citing United States v. Fields, 13 U.S.C.M.A.
193, 196, 32 C.M.R. 193, 196 (1962).

       During the colloquy with the military judge, appellant admitted his return to
military control was initiated by the local sheriff following a request by military
authorities. Specifically, appellant informed the military judge that the sheriff,
pursuant to a deserter warrant, knocked on appellant’s door, informed him of the
warrant, and took him to jail. However, in appellant’s sworn statement, dated 9 May
2011, which was attached to the stipulation of fact as an enclosure, appellant
maintains he initiated contact with the local sheriff after learning about a warrant for
his arrest from a friend. The mere fact that a deserter warrant exists does not
resolve the nature of the eventual apprehension. An inconsistency exists in the
record between whether appellant was apprehended or voluntarily surrendered to
military control. This inconsistency should have been resolved by the military
judge. See UCMJ art. 45(a) (the military judge must resolve any inconsistency
raised or reject the plea).

       Accordingly, we find there is a substantial basis in law and fact to question
appellant’s plea of guilty to absence without leave terminated by apprehension. We
are, however, confident appellant’s Care inquiry establishes appellant’s guilt to the
lesser-included offense of absence without leave. See United States v. Care, 40
C.M.R. 247, 253 (C.M.A. 1969). As such, we will take appropriate action in our
decretal paragraph.

                                   CONCLUSION

       Upon consideration of the entire record, including those matters personally
raised by appellant pursuant to Grostefon, in regards to Charge I and its
Specification, we affirm only a conviction for the lesser-included offense of absence
without leave. The remaining 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 United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v.
Moffeit, 63 M.J. 40 (C.A.A.F.2006), to include the factors identified by Judge Baker



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in his concurring opinion, the court affirms only so much of the sentence as provides
for a bad-conduct discharge, confinement for four months, and reduction to the grade
of E-1.

      Senior Judge COOK and Judge HAIGHT concur.


                                       FOR THE COURT:




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




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