Army Court of Criminal Appeals

United States v. McCullough

A military judge, sitting as a special court-martial, convicted appellant, in accordance with his pleas, of one specification of failing to go to his appointed place of duty, five specifications of willfully disobeying a superior commissioned officer, two specifications of disobeying a noncommissioned officer (NCO), one specification of disrespect toward a noncommissioned officer, and one specification of drunken physical control of a vehicle. He sentenced the appellant to a bad-conduct discharge and 99 days of confinement.

Specified issue

In light of United States v. Scheurer, 62 M.J. 100, 110 (C.A.A.F. 2005), we also specified for briefing whether the military judge erred by accepting the appellant's plea of guilty to the drunken physical control of a vehicle. The specified issue also warrants discussion and relief.

A cautionary note about stipulations that go with GPs.

During the providence inquiry, the accused told the MJ he was sitting in the passenger seat drunk.

Appellant argues the military judge erred in accepting the guilty plea because his providence inquiry was inconsistent with the stipulation of fact (more precisely, the part of that document that contained a stipulation of expected testimony from two NCOs) and because appellant admitted to facts that were legally insufficient to establish physical control. The government argues the providence inquiry and stipulation of fact are not inconsistent because appellant's assertion he was in the passenger seat and the NCOs' expected testimony that he was in the driver's seat can both be true, as he was in the vehicle multiple times.

For a guilty plea to survive appeal, an appellant must personally admit to facts establishing criminal culpability; appellant did not do this. Instead, he admitted only that he sat in his vehicle's passenger seat while drunk. A scenario that would be legally insufficient to establish guilt in a contested case is similarly insufficient in a guilty plea. The stipulation did not cure this problem, for appellant only agreed others would testify he was in the driver's seat; he did not agree to this as a matter of fact. Taken together, appellant's providence inquiry and stipulation painted a scenario that was, at the very least, inconsistent on the question of guilt. For these reasons, the military judge erred in accepting the plea, resulting in material prejudice to appellant. United States v. Moratalla, 82 M.J. 1, 4 (C.A.A.F. 2021).

A cautionary note about stipulations: They may help get damaging information in front of the MJ without the need to call a witness, but they are not a substitute for the accused's admissions during the providence inquiry.

A second cautionary note is that when the MJ excludes defense testimony, it may be necessary to make a proffer of expected testimony. If the military judge refuses to let you do that, it's on her. In that situation, put the proffer in writing and submit it to the convening authority citing Article 38(c), UCMJ. Assuming no EoJ, submit the proffer as a motion to attach as the next appellate exhibit to the record for appellate purposes.

Military Rule of Evidence 103 states: "A party may claim error in a ruling to admit or exclude evidence only if the error materially prejudices a substantial right of the party and... if the ruling excludes evidence, a party informs the military judge of its substance by an offer of proof unless the substance was apparent from the context." (emphasis added). While we know the topic of the disputed testimony, we do not know its substance; and it is not otherwise apparent.

Assuming arguendo the error was preserved, the military judge incorrectly interpreted R.C.M. 1001(b)(5) as limiting a defense witness's testimony during sentencing; the rule applies to the prosecution but not the defense.

See United States v. Eslinger, 70 M.J. 193 (C.A.A.F. 2010).

In this case the BCD was disapproved.

Despite the error - and even if we were to find it plain and obvious, but unpreserved - we conclude it did not prejudice appellant, for we are confident its exclusion did not substantially influence the adjudged sentence. The military judge sentenced appellant to a total of 99 days of total confinement, but each of the segmented sentences were below the plea agreement's maximum. Additionally, while the military judge sentenced appellant to a bad conduct discharge as required by the plea agreement, he wrote a detailed recommendation that the convening authority suspend that punishment.

Judge Hayes dissented on the reassessment finding. In a footnote,

Regardless of this conclusion, I commend the trial judge for taking the time to provide a recommendation to the convening authority, and particularly for providing supporting justifications.