            U NITED S TATES N AVY –M ARINE C ORPS
                C OURT OF C RIMINAL A PPEALS
                           _________________________

                               No. 201600144
                           _________________________

                    UNITED STATES OF AMERICA
                                    Appellee
                                        v.
                            TREVOR M. STOUT
                  Lance Corporal (E-3), U.S. Marine Corps
                                Appellant
                         _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

       Military Judge: Colonel James K. Carberry, USMC.
         For Appellant: Major Jason L. Morris, USMCR .
For Appellee: Commander C. Eric Roper, JAGC, USN; Captain Cory
                        A. Carver, USMC.
                    _________________________

                         Decided 20 September 2016
                          _________________________

  Before CAMPBELL, RUGH, and HUTCHISON, Appellate Military
                            Judges
                   _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

PER CURIAM:

    A military judge sitting as a special court-martial convicted the appellant,
consistent with his pleas, of three specifications of violating the Marine Corps
hazing instruction1, and one specification each of assault consummated by
battery, drunk and disorderly conduct, and communicating a threat in
violation of Articles 92, 128, and 134, Uniform Code of Military Justice , 10
U.S.C. §§ 892, 928, and 934. The military judge sentenced the appellant to


   1   Marine Corps Order 1700.28B, dtd 20 May 2013.
                          United States v. Stout, No. 201600144


three months’ confinement, reduction to pay grade E-1, forfeiture of $900.00
pay per month for three months, and a bad-conduct discharge. The convening
authority (CA) approved the sentence and, pursuant to a pretrial agreement ,
suspended all confinement in excess of two months.
   In his sole assignment of error, the appellant contends that his plea to
communicating a threat on divers occasions was partially improvident
because the military judge failed to elicit any facts that established the
appellant communicated a threat on more than one occasion. We agree, and
order relief in our decretal paragraph. Following our corrective action we find
the findings and sentence are correct in law and fact and that no error
materially prejudicial to a substantial right of the appellant remains.
                                   I. BACKGROUND
    In October 2015, the appellant, as a squad leader, conducted unit training
in Yuma, Arizona. During the training evolution, he required his squad
members to hold their rifles by the front sight post and charging handle and
to carry serialized rocks in their pockets. He required one Marine to “plank”2
at parade rest on top of a rock.3 Threatening his Marines, he told the squad,
“I am not afraid to put my hands on you, I am gonna kill you, and I will beat
your ass.”4 Finally, after consuming a large quantity of alcohol, he got into a
loud, heated argument with the duty Marine and punched another Marine.
    The military judge did not define “divers” during the providence inquiry
for the appellant’s plea to communicating a threat5 before the following
exchange:
         MJ: Okay. So you said those things to the persons listed in the
         specification?
         ACC: Yes, sir.
         MJ: All of them?
         ACC: Yes, sir.
         MJ: Okay. Did you say that at the same time to all of them?

   2 The  plank position described required the Marine to lay his chest on a rock with
his hands folded behind his back in a horizontal “parade rest” position, so that only
the tips of the Marine’s feet touched the ground. Record at 20-30.
   3   Id.
   4   Charge Sheet, Specification 1, Charge III.
   5  Record at 36-37. The military judge had previously defined the term divers
while discussing the order violations. During inquiry into those offenses, it became
clear that each violation occurred only once, and the Government agreed to strike “on
divers occasions” from those specifications.

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         ACC: Yes, sir.
         MJ: Go ahead – so what was – was this a formation, or –
         ACC: I can’t really remember, sir, like what we were doing.
         We were probably doing some sort of training.6
  The military judge conducted no further inquiry regarding when, or how
many times, the threatening statements were made.
                                    II. DISCUSSION
A. Providence of the appellant’s plea
    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
military judge abuses his discretion when accepting a plea if he does not
ensure the accused provides an adequate factual basis to support the plea
during the providence inquiry. See United States v. Care, 40 C.M.R. 247, 253
(C.M.A. 1969). In establishing a factual basis, the military judge must
explain each element of the offense charged and question “the accused about
what he did or did not do, and what he intended[.]” United States v.
Davenport, 9 M.J. 364, 366 (C.M.A. 1980). We will not reject the plea unless
there is a substantial basis in law or fact for questioning the guilty plea.
United States v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014) (citing United States
v. Passut, 73 M.J. 27, 29 (C.A.A.F. 2014)).
    While the providence inquiry allows us to conclude that the appellant
wrongfully communicated the threatening language as alleged, the record
provides no factual basis to find that he did so on divers occasions. Rather,
the appellant admitted that he “said those things . . . at the same time to all
of them.”7 As a result, there is a substantial basis for us to question the guilty
plea with regards to whether the appellant communicated threats on divers
occasions.
   Accordingly, we will affirm only so much of the finding of guilty to
Specification 1 under Charge III that does not include the words “on divers
occasions.”
B. Reassessment of sentence
    Having set aside a part of the appellant’s conviction for communicating a
threat, we must reassess the sentence. Courts of Criminal Appeals (CCAs)
can often “modify sentences ‘more expeditiously, more intelligently, and more
fairly’ than a new court-martial[.]” United States v. Winckelmann, 73 M.J. 11,


   6   Id. at 38.
   7   Id.

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15 (C.A.A.F. 2013) (quoting Jackson v. Taylor, 353 U.S. 569, 580 (1957)). In
such cases, CCAs “act with broad discretion when reassessing sentences.” Id.
    Reassessing a sentence is only appropriate if we are able to reliably
determine that, absent the error, the sentence would have been at least of a
certain magnitude. United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000). A
reassessed sentence must not only “be purged of prejudicial error [but] also
must be ‘appropriate’ for the offense involved.” United States v. Sales, 22 M.J.
305, 308 (C.M.A. 1986).
   We base these determinations on the totality of the circumstances of each
case, guided by the following “illustrative, but not dispositive, points of
analysis”:
   (1) Whether there has been a dramatic change in the penalty landscape or
exposure.
   (2) Whether sentencing was by members or a military judge alone.
    (3) Whether the nature of the remaining offenses captures the gravamen
of criminal conduct included within the original offenses and whether
significant or aggravating circumstances addressed at the court-martial
remain admissible and relevant to the remaining offenses.
   (4) Whether the remaining offenses are of the type with which appellate
judges should have the experience and familiarity to reliably determine what
sentence would have been imposed at trial.
Winckelmann, 73 M.J. at 15-16.
   Under all the circumstances presented, we find that we can reassess the
sentence and that it is appropriate for us to do so. First, the penalty
landscape is unchanged. The maximum punishment for communicating a
threat alone is greater than the special court-martial jurisdictional
maximum, and setting aside “on divers occasions” does not lessen the
appellant’s punitive exposure. Second, the appellant elected to be sentenced
by a military judge, and we are more likely to be certain of what sentence the
military judge, as opposed to members, would have imposed. Third, we have
extensive experience and familiarity with the offenses as modified, as none
presents a novel issue in aggravation. Finally, the modified offenses capture
the gravamen of the criminal conduct at issue, and all of the evidence
remains admissible. Indeed, the military judge sentenced the appellant based
on evidence of a single incident of communicating a threat.
    Taking these facts as a whole, we can confidently and reliably determine
that, absent the error, the military judge would have sentenced the appellant
to at least confinement for three months, reduction to pay grade E-1,
forfeiture of $900.00 pay per month for three months, and a bad-conduct

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discharge. We also conclude that the adjudged sentence is an appropriate
punishment for the modified offenses and this offender—thus satisfying the
Sales requirement that the reassessed sentence not only be purged of error,
but appropriate. Sales, 22 M.J. at 308.
                              III. CONCLUSION
   The guilty finding to Specification 1 of Charge III is affirmed except for
the words “on divers occasions.” The remaining guilty findings and the
sentence as approved by the CA are affirmed.


                                       For the Court


                                          R.H. TROIDL
                                          Clerk of Court




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