Air Force Court of Criminal Appeals

Greer is back again after a remand to correct post-trial errors. Appellant pled guilty to one A&B and was sentenced to 60 days, RiR, BCD, and a reprimand. The court now takes up one of four errors and grants relief: is there "a substantial basis in law or fact to question Appellant’s plea of guilty to striking CG with his “hands.”"

The question arises because there are some inconsistency in whether Appellant was admitting to assault with one hand or both--singular or plural. During providency the Appellant asserted he lacked a memory of what he did or said due to alcohol. But he agreed he did commit an A&B based on his review of the evidence against him.

(A "drunk" plea is OK, with the proper statements during providency. See, e.g., United States v. Moglia, 3 M.J. 216, 218 (C.M.A. 1977) (inability to recall the facts relating to an offense does not preclude entering a plea of guilty if is convinced of guilt); United States v. Luebs, 20 U.S.C.M.A. 475, 43 C.M.R. 315 (1971); United States v. Butler, 20 U.S.C.M.A. 247, 43 C.M.R. 87 (1971); United States v. Wiles, 30 M.J. 1097, 1100 (N.M.C.M.R. 1989).)

​We find the military judge’s colloquy with Appellant did raise a substantial basis to question the providency of Appellant’s guilty plea to striking CG with his “hands” rather than one hand, and that the military judge abused his discretion by accepting Appellant’s plea without modification. In order to find the guilty plea provident, a military judge must establish that the accused believes he is guilty of the offense to which he pleaded. See Murphy, 74 M.J. at 308. In this case, Appellant told the military judge that he could not remember the offense, but he believed he used one hand to strike CG, rather than both hands as charged and pleaded. Having developed this discrepancy, the military judge failed to resolve it. Indeed, the military judge’s comments as he transitioned to a discussion of potential defenses acknowledged that Appellant was only “potentially” guilty of using both hands, but possibly only used his “dominant hand,” and that Appellant was “telling” the military judge he used his dominant hand. We note that CG noticeably suffered injuries to the left side of her face and body, suggesting that Appellant was swinging at her with his right arm as he faced her. However, what is most significant is that the military judge elicited that Appellant doubted the specification he pleaded to accurately described what actually happened. This is more than the mere possibility of a conflict. See Watson, 71 M.J. at 58.

The court finds that it can affirm guilt by one hand which does not violate the terms of the PTA, and upon sentence reassessment affirms the sentence. On the issue of post-trial delay, the court said,

After the parties filed their original briefs, this court decided United States v. Livak, 80 M.J. 631 (A.F. Ct. Crim. App. 2020). Specifically, Livak established an aggregated 150-day standard for facially unreasonable delay from sentencing to docketing with the Court of Criminal Appeals for cases referred to trial on or after 1 January 2019. [W]e find no facially unreasonable delay under the Moreno and Livak thresholds. Because the CAAF has never held that the specific time standards in Moreno were the exclusive means by which an appellant could demonstrate facially unreasonable delay, we have considered whether the actual delays in this case were facially unreasonable. We find the Government exercised a reasonable degree of diligence. Finally, recognizing our authority under Article 66(d), UCMJ, 10 U.S.C. § 866(d), we have also considered whether relief for excessive post-trial delay is appropriate in this case even in the absence of a due process violation.