The Army CCA’s published opinion in United States v. Sneed, __ M.J. __, No. 20131062 (A. Ct. Crim. App. Mar. 27, 2015) (link to slip op.), is an interesting read. The appellant pleaded guilty, in accordance with the terms of a pretrial agreement, to three specifications of aggravated assault with a means likely to cause death or grievous bodily harm, seven specifications of assault consummated by a battery, and one specification of kidnapping in violation of Articles 128 and 134. He was sentenced to confinement for nine years and a dishonorable discharge. In accordance with the pretrial agreement, the convening authority approved the dishonorable discharge and only six years of confinement.
The appellant’s pleas related to abuse of his girlfriend, who was also a soldier. In particular:
Specialist (SPC) BG, to a variety of emotional and physical abuse. This abuse included an incident where, in the midst of yet another argument [over the appellant’s desire to use BG’s debit card to pay for airfare -zds], appellant shoved a pregnant SPC BG into his closet in the barracks and locked her in for, as he stated, not more than 10 minutes. This act was charged as an act of kidnapping under Article 134, UCMJ. Appellant pled[ed] guilty to the kidnapping as charged.
Slip op. at 2. The kidnapping was the most serious charge the appellant pleaded guilty to committing, as it carries a maximum authorized punishment that includes confinement for life without eligibility for parole. The maximums for each of the aggravated assault specifications is three years; for the battery specifications, six months.
On appeal, the appellant challenged the providence of his plea to the kidnapping offense. Specifically, he asserted that “(1) the judge failed to fully and properly define the offense of kidnapping, and (2) the providence inquiry and stipulation of fact established that appellant’s holding of SPC BG was merely incidental to his attempt to obtain SPC BG’s debit card.” Slip op. at 5. To constitute kidnapping, a “holding . . . must be more than a momentary or incidental detention. . . . Otherwise, as to incidental detentions, a soldier would be subject to conviction and life in prison under Article 134, UCMJ, for an act better described by offenses carrying far lesser punishment.” Slip op. at 5.
The CCA applies settled law and concludes that the kidnapping of BG “was not merely incidental to attempted robbery or any other offense arguably associated with the detention.” Slip op. at 6-8. See also United States v. Jeffress, 28 M.J. 409, 413-14 (C.M.A. 1989). But even though the court finds that the kidnapping was properly charged as a separate offense, it concludes that:
The judge here failed to properly explain the elements of kidnapping to appellant . The judge did not fully and properly define “hold ” as requiring that the holding be more than a momentary or incidental detention. This definition is an essential limit to the scope of the crime of kidnapping under Article 134, UCMJ. Therefore, we must reverse unless it is clear from the entire record that appellant knew the elements, admitted them freely, and pleaded guilty because he was guilty.
Slip op. at 8. However, the court affirms the plea nonetheless:
Our review of the record establishes no substantial basis in law and fact to reject appellant’s plea. To the contrary, the record clearly reveals that appellant well understood the nature of the kidnapping offense under Article 134, UCMJ, freely admitted the elements of that offense and pled guilty to kidnapping because he was guilty of kidnapping.
Appellant never expressed or suggested any pretense that his detention of SPC BG was merely incidental to another offense and admitted additional facts that reflect his understanding that the “holding” element requires more than a momentary or incidental detention. Nowhere did he suggest that confining SPC BG in a locked closet against her will was necessary to obtain her debit card; in both the stipulation of fact and the plea inquiry, he admitted facts sufficient to establish his understanding that the detention must be for an appreciable time; and, he also volunteered facts relevant to both the “holding” and terminal element of the offense when discussing the significant risk of harm he imposed upon SPC BG by locking her in that closet.
Slip op. at 8-9. This is an interesting conclusion, as the judge’s failure to properly define “hold” strikes at the heart of the issue of whether putting BG into the closet was merely incidental to the appellant’s efforts to obtain her debit card. The CCA also notes that the “appellant quite intelligently articulated his understanding that wrongful confinement is sufficient to constitute kidnapping,” slip op. at 8, but this is just a legal conclusion and not an adequate factual basis to support a plea. See United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002) (“It is not enough to elicit legal conclusions, the military judge must elicit facts to support the plea of guilty.”). Moreover, the posture of the case begs the question of whether anyone in the courtroom at the time of the plea understood that the kidnapping had to be more than merely incidental to another offense.
However, the CCA’s opinion doesn’t reproduce the entire plea inquiry verbatim, so perhaps the appellant made additional admissions that are relevant to this determination.