United States v. Desilva
ACM S32335
| A.F.C.C.A. | Oct 4, 2016Background
- Appellant, SrA Ian D. DeSilva, pleaded guilty under a pretrial agreement to willful dereliction of duty (two specifications), wrongful use of cocaine (multiple occasions), and wrongful possession of alprazolam, in violation of Articles 92 and 112a, UCMJ.
- Sentence: bad-conduct discharge, 7 months confinement, reduction to E-1, and forfeitures (forfeitures later waived to benefit spouse); convening authority approved sentence except for forfeitures.
- During providence inquiry, the military judge omitted the willfulness element when listing elements for both dereliction specifications, but later defined “willful” and asked the accused if he had “knowingly and purposely” failed to perform duties; Appellant answered affirmatively but also said his failures were "neglect."
- The judge did not resolve the apparent conflict between Appellant’s admission of "knowing and purposely" failing duties and his use of the term "neglect," which can imply negligence rather than willfulness.
- The Court found the judge abused his discretion in accepting the guilty pleas to willful dereliction because the record reasonably raised an inconsistency; the pleas were modified to the lesser-included offense of negligent dereliction of duty.
- The Court reassessed and affirmed the findings as modified and the sentence as approved by the convening authority; it also ordered correction of a clerical error on the promulgating order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the military judge abused discretion by accepting guilty pleas to willful dereliction when the providence inquiry included statements of "neglect" | Gov: Appellant also admitted he "knowingly and purposely" failed duties; "neglect" can encompass willfulness; no substantial basis to question plea | Appellant: (through record) statements of "neglect" conflict with willfulness element, raising a substantial basis to question plea | Court: Judge abused discretion because Appellant's use of "neglect" created an apparent inconsistency that the judge failed to resolve on the record; plea modified to negligent dereliction |
| Whether the record supports conviction of a lesser-included offense | Gov: Even if willfulness absent, admissions support lesser offense | Appellant: N/A (consistent with negligent theory) | Court: Affirmed findings as to negligent dereliction by substituting "negligently" for "willfully" in both specifications |
| Whether the sentence must be reassessed or remanded after modifying findings | Gov: Court may reassess under Winckelmann factors | Appellant: Arguably could seek new sentencing if prejudice exists | Court: Reassessed sentence and affirmed the sentence as approved by the convening authority |
| Whether promulgating order error requires correction | Gov: Noted change on record from ¶1.3.3 to ¶1.1.3 | Appellant: N/A | Court: Directed completion of corrected CMO to fix clerical error |
Key Cases Cited
- United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008) (standard—review of military judge’s acceptance of guilty plea for abuse of discretion)
- United States v. Prater, 32 M.J. 433 (C.M.A. 1991) (accused bears burden to show substantial basis in law or fact to question plea)
- United States v. Garcia, 44 M.J. 496 (C.A.A.F. 1996) (mere possibility of conflict in record insufficient to overturn plea)
- United States v. Roane, 43 M.J. 93 (C.A.A.F. 1995) (guilty plea improvident if record reasonably raises question of a defense or contains a patent inconsistency)
- United States v. Hines, 73 M.J. 119 (C.A.A.F. 2014) (military judge must resolve inconsistencies in providence on the record)
- United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) (factors and standard for appellate sentence reassessment)
- United States v. Sales, 22 M.J. 305 (C.M.A. 1986) (approach for determining when reassessed sentence is free of prejudicial error)