13 M.J. 871 | U.S. Navy-Marine Corps Court of Military Review | 1982
Appellant was convicted, pursuant to his pleas, at a general court-martial of an attempt to obtain government services by false pretense; falsifying an Application for Shipment and Storage of Personal Property (DD 1299); and the larceny of two angle sanders and three air wrenches, altogether valued at over $362.00; violations of Articles 80, 107 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 907, 921, respectively. Officer members sentenced appellant to dismissal. The convening authority approved the sentence as adjudged.
At trial, appellant was represented by his detailed defense counsel as well as two civilian attorneys provided at appellant’s own expense. After pleas, the military judge conducted what appellate defense counsel concedes was a thorough and detailed providence inquiry in which appellant was apprised of the elements of the offenses and the constitutional rights which he would waive by pleading guilty. By his exemplary inquiry, the military judge elicited an extensive personal explanation of the facts, events and state of mind which constituted the offenses, as well as a categorical statement from appellant that he was pleading guilty only because he believed himself to be guilty.
Appellant now assigns five errors for our consideration, none of which have merit; however, in light of oral argument, we will address Assignment of Error I.
I
THE ACCUSED’S PLEAS WERE IMPROVIDENT BECAUSE THEY WERE NOT BASED ON A FACTUAL PREDICATE AND WERE ENTERED TO GAIN THE BENEFIT OF A PRETRIAL AGREEMENT NOT BECAUSE THE ACCUSED WAS CONVINCED OF HIS OWN GUILT.
Although appellant’s assigned error is framed in terms of an inadequate “factual predicate” for a guilty plea, it was made clear during oral argument that he is not asserting that the providence inquiry was deficient in any manner. On the contrary, he asserts for the first time, by means of his affidavit filed nearly one and one-half years after trial, that certain of his responses during that inquiry were false, that he
A bit of background is necessary in order to appreciate the factual context within which this error is asserted. At the time of the commission of these offenses, appellant had served over ten years as a commissioned officer in the United States Marine Corps and was to be separated for failure of selection for the rank of Major. As a result, appellant was authorized to have his personal goods shipped to a requested destination before regaining his status as a civilian. Several pertinent regulations govern this process and a servicemember’s entitlement to ship personal goods at government expense.
Thus, given the substantial stature which appellant’s pleas acquire in light of an exemplary providence inquiry, and our own disbelief that anyone with appellant’s commissioned officer background and occupational speciality could have believed that items such as those enumerated above were professional equipment, we are asked by appellant to allow him to impeach a portion of his trial by means of a self-serving affidavit.
As a general rule, evidence from outside the record will not be considered by appellate authorities to determine anew the providence of the plea. United States v. Davenport, 9 M.J. 364, 367 (C.M.A.1980). The manifest purpose of the Chancelor/Care/Green
Considering this basic legal proposition, together with the wholly improbable and frivolous, if not unconscionable nature of appellant’s affidavit, we decline to consider it as to matters alleged to exist before trial, especially ones that are contrary to factual representations made at trial. See United States v. Joseph, supra, at 335; see generally Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Lastly, we do not believe that appellant’s assertions, in the factual context of this case, give rise to a question of the adequacy or effectiveness of counsel.
Accordingly, appellant’s assignments of error are rejected. The findings and sentence as approved on review below are affirmed.
Senior Judge BAUM and Judge KERCHEVAL concur.
. Appellant faced a maximum punishment of confinement at hard labor for fifteen years, total forfeitures, fine, dismissal and loss of lineal numbers. The sentence limiting provisions of an advantageous pretrial agreement were never invoked because the adjudged sentence was even less.
. See Joint Travel Regulations; DOD 4500.34-R.
. Id.
, United States v. Chancelor, 16 U.S.C.M.A. 297, 36 C.M.R. 453 (1966); United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969); United States v. Green, 1 M.J. 453 (C.M.A.1976).
