United States v. Phillips
2015 CAAF LEXIS 5
| C.A.A.F. | 2015Background
- Phillips, an Army private, pled guilty (unconditional) as part of a pretrial agreement to absence without leave, disobeying a superior commissioned officer (Article 90), and cocaine use; sentence approved: bad-conduct discharge and 9 months’ confinement.
- Facts: Phillips had lengthy prior absences (including one to impede proceedings), a civilian conviction, and on March 14, 2012 his company commander issued a written restriction order which Phillips signed. He left post about April 11, 2012 to live with his girlfriend.
- Convening authority limited referred case to a special court-martial and disapproved confinement over 10 months in exchange for plea and waiver of motions.
- Army CCA panel set aside the Article 90 conviction under the ultimate-offense doctrine but affirmed sentence; en banc CCA reversed, finding no substantial basis to reject the plea.
- CAAF granted review to decide whether the military judge should have rejected the guilty plea because the true (ultimate) offense was breaking restriction (a lesser Article 134 offense). Court affirmed the en banc CCA: no substantial basis in law or fact to reject the plea.
Issues
| Issue | Phillips' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Article 90 conviction is an improper escalation of a lesser offense (ultimate-offense doctrine) | The order was effectively an attempt to convert minor breaking-restriction into Article 90 liability; thus plea should be rejected | The restriction was a lawful military order issued in furtherance of military function; not given solely to increase punishment | CAAF: No application of ultimate-offense doctrine; plea stands |
| Proper standard for ultimate-offense inquiry | (implicit) prior broader tests could apply to invalidate Article 90 prosecutions | MCM language should govern whether order was given solely to accomplish a private end or to increase penalty | CAAF: Overrules broader Loos standard; adopt MCM test exclusively |
| Plea adequacy — factual basis and nature of offense advice | The distinction between Article 90 and Article 134 (breaking restriction) is an ‘‘ingredient’’ requiring explicit plea inquiry like in Hartman/Castellano | Military judge adequately explained Article 90 elements and Phillips stated factual basis (residing off post contrary to order) | CAAF: Castellano/Hartman inapplicable; no constitutional issue here; plea inquiry was sufficient |
| Whether record shows substantial basis in law or fact to question plea | Plea should be rejected because ultimate-offense applies / inadequate inquiry | Record shows lawful order, adequate judicial explanation, and factual admission by Phillips | CAAF: Phillips failed to meet burden; no substantial basis in law or fact |
Key Cases Cited
- United States v. Inabinette, 66 M.J. 320 (CAAF 2008) (military judge’s discretion to accept guilty pleas; appellant bears burden to show substantial basis to withdraw)
- United States v. Loos, 4 C.M.A. 478 (C.M.A. 1954) (previous standard allowing Article 92/90 escalation where order issued with full authority of office)
- United States v. Ranney, 67 M.J. 297 (CAAF 2009) (discussion of application of ultimate-offense doctrine to Article 90)
- United States v. Castellano, 72 M.J. 217 (CAAF 2013) (requirement to distinguish constitutionally protected from punishable conduct during plea inquiry under Article 125 context)
- United States v. Hartman, 69 M.J. 467 (CAAF 2011) (plea inquiry must separate constitutionally protected activity from criminal conduct when statute covers both)
- United States v. Finch, 73 M.J. 144 (CAAF 2014) (appellant’s burden to show substantial basis in law or fact to question guilty plea)