Navy-Marine Corps Court of Criminal Appeals

United States v. Moore
__ M.J. ___ (N-M. Ct. Crim. App. 2024)

It's a Mizer opinion, so

As the Scottish poet Robert Burns observed, the best-laid plans of mice and men often go awry. And Appellant’s plea, which was best-laid, quickly unraveled as the Government opened its sentencing case.

The Appellant was convicted, consistent with his pleas, of one specification of assault consummated by a battery and one specification of extramarital sexual misconduct. The military judge sentenced the Appellant in accordance with the bargained-for plea agreement. On the face of it a bargain compared to the original charges of two specifications of sexual assault without consent, two specifications of extramarital sexual conduct, and one specification of indecent conduct.

But Appellant now levels a broadside at the bargain he struck below asserting six assignments of error: (1) whether Appellant’s conviction for assault consummated by a battery was improvident; (2) whether the military judge abused his discretion when he accepted Appellant’s guilty plea for extramarital sexual conduct; (3) whether the military judge abused his discretion by allowing the Government to introduce aggravation evidence beyond the scope of the charge for which Appellant pleaded guilty; (4) whether the military judge abused his discretion by allowing a victim impact statement that went beyond the scope of the charge for which Appellant pleaded guilty; (5) whether Appellant’s defense counsel ineffectively represented him during his court-martial; and (6) whether the sentence adjudged is inappropriately severe.

Supported by a "carefully curated" stipulation, the Appellant admitted he touched the CW on the bicep and that he had no mistake defense. Proceeding to sentencing, Judge Mizer tells us

In an apparent effort to obtain a sentence on the higher end of the bargained-for three-to-six-month sentencing range for confinement, the Government introduced a number of reports of interviews taken by agents from the Naval Criminal Investigative Service (NCIS) during its investigation of CPT Mike’s allegation that Appellant sexually assaulted her. While these interviews do contain matters in aggravation, they also squarely raise the mistake of fact defense to the alleged assault and present a substantial basis in both law and fact to question Appellant’s plea to that Charge.
. . .
An affirmative defense to a charged offense would, by definition, constitute matter inconsistent with a plea of guilty and a military judge must resolve the apparent inconsistency or reject the plea. That said, not every mitigating statement or word requires further inquiry, and a military judge is not required to reopen a plea and inquire further where an accused raises the “mere possibility of a defense.” But if a party sets up matter raising a possible defense, then the military judge is required to make further inquiry and resolve any apparent ambiguity or inconsistency.

Rule for Courts-Martial 916(j)(2) places no limitation on the source or the kind of evidence that may establish a mistake of fact defense. And the evidence supporting that defense “can come from evidence presented by the defense, the prosecution, or the court-martial.”

Despite the Government's argument that there was no inconsistency, NMCCA set aside the findings and sentence.

For now, Appellant has evinced his intent to withdraw from the plea agreement by challenging the providence of his pleas to all the charges and specifications and by alleging that his trial defense counsel were ineffective in negotiating the plea agreement in this case, which he alleges no reasonable attorney would have done. We hold that the conditions allowing the parties to withdraw from the plea agreement have been met. And under the facts of this case, we set aside the findings and sentence so the Government and Appellant may fully avail themselves of the remedies available to them below, which may include, but are not limited to, permitting Appellant to plead anew or proceed to trial.