Lead Opinion
Opinion of the Court
On pleas of guilty the appellant stands convicted of possessing, selling, and transferring lysergic acid diethy-lamide (LSD). He now challenges the adequacy of the military judge’s inquiry into the factual basis for his guilty pleas, as required by United States v Care,
Under Care, the military judge must explain to an accused every element of the offenses chargеd, question him about his actions and intent, and advise him of the rights a guilty plea waives.
Before accepting the appellant’s pleas in this case the military judge read aloud each specification in its entirеty. The judge then recited the elements constituting these offenses. Terry assured the judge that he understood the meaning of the specifications and the elements. These responses satisfied the judge that no further devеlopment of the facts was needed to identify the plea with the offenses charged. He accеpted the proffered guilty plea.
We have declared that Care has the same providency inquiry objectives as do McCarthy v United States,
In Wimberly, supra, we held the Care standards were met because the military judge employed an interrogation technique that related Wimberly personally to the criminal act charged. Following the exchange in that case, Wimberly admitted to the military judge that the elements the judge had itemized “accurately described” what he did. A stipulation of fact reinforced the showing in the Wimberly record that the murder to which Wim-berly pleaded guilty was the same one with which he was charged.
We do not have the same assurance in this case. The record reveals nothing inore than a recital of the elements of the offenses charged, followed by Terry’s affirmative reply to the military judge’s conclusion, “You are pleading guilty because you are, in fact, guilty?” Colloquies of this naturе have never satisfied the demands of Care, for they fail to furnish a satisfactory factual development. Unlike Wimberly, this rеcord contains no evidence of what happened beyond the accused’s responses.
Kilgore and Burton, suрra, are also distinguishable. In the former, the military judge closely questioned Kil-gore on his participation in the action •that constituted the offense charged. Since the military judge had explained “ ‘every technical element’ ” of the offenses, this Court agreed that the demands of Care were met. Kilgore, supra, at page 36.
In Burton, supra, the assigned error was that the judgе failed to describe the rights a guilty plea waives. Again, this Court found the military judge’s advice and questions adequate because we considered the asserted defects as being ones of technique and phraseology rather than substance.
Article III court decisions the Government cites do not convince us this inquiry was adequate. Some involve collateral attacks, where the burden of showing grounds for adequate relief rеsts on the petitioner.
The Care opinion gave notice that questions in the future asking whether the accused realized a guilty plea admits “ ‘every element charged and every act or omission alleged’ ” (Id., at page 541) would not satisfy the new rеquirements. When we described the inquiry in Wimberly as “marginal,” we did not intend to approve a judge’s doing no more than to read the specifications to an accused and to ask if they described what he did. Since the inquiry in this casе is deficient in its development of the factual basis for the plea, we reverse the decision of thе United States Navy Court of Military Review and return the record of trial to the Judge Advocate General of thе Navy. A rehearing may be ordered.
Notes
Terry was advised that he had the right to a trial of the facts and that his plea waived specified rights.
Kress v United States, 411 F2d 16 (CA 8th Cir) (1969); United States ex rel Ferguson v Deegan,
United States ex rel Ferguson v Deegan, supra.
Biggs v United States,
United States v Rawlins, 440 F2d 1043 (CA 8th Cir) (1971).
Dissenting Opinion
(dissenting) :
In my opinion, the trial judge’s enumerаtion of each factual allegation in each of the two specifications and the accused’s personal acknowledgment that he understood each allegation, together with his final statemеnt that he was pleading guilty because he was “in fact, guilty,” were sufficient to satisfy the requirements of Care. I would, therefore, affirm the decision of the Court of Military Review.