United States v. Jordan

                        UNITED STATES, Appellee

                                     v.

                      Jason R. JORDAN, Private
                    U.S. Marine Corps, Appellant

                               No. 01-0483
                        Crim. App. No. 99-1778

       United States Court of Appeals for the Armed Forces

                       Argued February 27, 2002

                       Decided August 30, 2002

     BAKER, J., delivered the opinion of the Court, in
which GIERKE and EFFRON, JJ., joined. CRAWFORD, C.J., and
SULLIVAN, S.J., each filed a dissenting opinion.

                                 Counsel


For Appellant: Lieutenant Glenn Gerding, JAGC, USNR
(argued and on brief).

For Appellee: Lieutenant Ross W. Weiland, JAGC, USNR
(argued); Colonel Rose M. Favors, USMC, Commander Peter A.
Dutton, JAGC, USN, and Major William J. Collins, Jr., USMC
(on brief); Colonel Marc W. Fisher, USMC.


Military Judge:       David S. Durbin



THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Jordan, No. 01-0483/MC


    Judge BAKER delivered the opinion of the Court.

    On July 30, 1999, at Bremerton, Washington, appellant

was tried by a special court-martial composed of a military

judge alone.    Consistent with his pleas, appellant was

convicted of two specifications of willful disobedience of

a superior commissioned officer, failure to obey a lawful

order by wrongfully having an unregistered guest in the

barracks, four specifications of breaking restriction, and

unlawful entry, in violation of Articles 90, 92, and 134,

Uniform Code of Military Justice, 

10 USC §§ 890

, 892, and

934, respectively.     He was sentenced to a bad-conduct

discharge, confinement for 45 days, and forfeiture of

$600.00 pay per month for one month.         On December 1, 1999,

in accordance with a pretrial agreement, the convening

authority approved the sentence but suspended all

confinement in excess of 24 days for a period of 6 months

from the date of trial.      On February 27, 2001, the Navy-

Marine Corps Court of Criminal Appeals affirmed the

findings of guilty and the sentence in an unpublished

opinion.   United States v. Jordan, No. 99-1778 (N.M. Ct.

Crim. App. 2001).

     This Court granted review of the following issues:1


1
 We heard oral argument in this case at Mahan Hall, United States Naval
Academy, Annapolis, Maryland, as part of the Court’s “Project
Outreach.” See United States v. Allen, 

34 MJ 228

, 229 n.1 (1992).


                                   2
United States v. Jordan, No. 01-0483/MC


        I.    WHETHER THE LOWER COURT ERRED WHEN IT FOUND AS A
              MATTER OF LAW THAT A SAILBOAT AMOUNTS TO A
              “STRUCTURE USUALLY USED FOR HABITATION OR
              STORAGE” FOR PURPOSES OF CONVICTING APPELLANT OF
              THE OFFENSE OF UNLAWFUL ENTRY.

        II.   WHETHER THE LOWER COURT      ERRED WHEN IT FOUND THAT
              LEANING ON A SAILBOAT’S      RAILING CONSTITUTES AN
              “ENTRY” FOR PURPOSES OF      CONVICTING APPELLANT OF
              THE OFFENSE OF UNLAWFUL      ENTRY.

        We reverse, holding that appellant’s guilty plea to

unlawful entry was improvident.          Appellant’s providence

inquiry does not establish a basis for concluding that

appellant’s conduct was prejudicial to good order and

discipline or was of a nature to bring discredit upon the

armed forces.

                                Background

        The granted issues relate to appellant’s unlawful

entry conviction under Specification 5 of Charge III.2

The elements of this offense are:

        (1)   That the accused entered the real property of
              another or certain personal property of another
              which amounts to a structure usually used for
              habitation or storage;

        (2)   That such entry was unlawful; and




2
    This specification (violation of Article 134) reads:

        In that Private Jason R. Jordan . . . did, at or near the
        Port of Silverdale, located at Silverdale, Washington, on
        or about 27 June 1999, unlawfully board the private boat of
        George and Toni Rowe, civilians.



                                     3
United States v. Jordan, No. 01-0483/MC


      (3)   That, under the circumstances, the conduct of the
            accused was to the prejudice of good order and
            discipline in the armed forces or was of a nature
            to bring discredit upon the armed forces.


Para. 111b, Part IV, Manual for Courts-Martial, United

States (2000 ed).3

      The military judge accepted appellant’s guilty plea to

this offense based on the providence inquiry set forth in

the appendix to this opinion.          There was no stipulation of

fact associated with appellant’s pretrial agreement or the

plea inquiry.

      Based on this providence inquiry, the Court of

Criminal Appeals concluded that appellant agreed the boat

could be used as a place of habitation.          Unpub. op. at 2-3.

It also concluded that as a matter of law, the sailboat was

a structure used for habitation and storage within the

meaning of the Manual for Courts-Martial.          Id. at 3.

Further, the court stated:

           Insofar as the “entry” element is concerned,
      the appellant admitted that he leaned his body on
      the railing of the sailboat so that his upper
      body extended forward past the gunwale and that
      his feet ended up in the air. By doing so, he
      was effectively on the sailboat and had
      accomplished a trespass without the permission of
      the occupant. The occupant subsequently told
      Lance Corporal Bain, the roving sentry at the



3
 All Manual provisions cited are identical to the ones in effect at the
time of appellant’s court-martial.


                                   4
United States v. Jordan, No. 01-0483/MC


     scene, that the appellant was leaning on her boat
     and expressed a desire that he be removed.

Id. (footnote omitted).

     Finally, with respect to the third element of the

offense, the Court of Criminal Appeals concluded “[t]he

appellant admitted that such conduct would tend to ‘harm

the reputation of the service or lower it in public

esteem.’   Accordingly, [it found] the appellant’s guilty

plea to be provident.”    Id.

     Before this Court, appellant claims that a sailboat

cannot be the object of an unlawful entry because it is

more like a car or plane than a “structure usually used for

habitation or storage” under Article 134.    He further

argues that leaning on the rail of the gunwale is not an

“entry” and, even if it is, it is not a sufficient enough

entry on which to base the Charge.    These arguments

necessarily focus on elements (1) and (2) of the offense,

as do the granted issues.    However, they also relate to

appellant’s more general claim that the military judge

erred in accepting the plea to unlawful entry because the

plea was unsupported by the facts.

     The Government first argues that the military judge

established the factual predicate for appellant’s unlawful

entry during the providence inquiry.    Second, it claims



                                5
United States v. Jordan, No. 01-0483/MC


appellant has not met his burden of establishing a

substantial basis in law and fact to question the plea, and

his own words objectively support his plea.    Further, the

Government contends, an inhabited boat is a “structure”

under Article 134, since a “houseboat” is listed as an

example of a “structure” under Article 130 (Housebreaking),

UCMJ, 

10 USC § 930

.   See para. 56c(4), Part IV, Manual,

supra.   Appellant physically entered the structure when his

upper body crossed over the gunwales of the craft.

Finally, the Government asserts, appellant admitted that

his conduct was prejudicial to good order and discipline.

                          Discussion

     Under Article 45, UCMJ, 

10 USC § 845

, if an accused

makes an irregular pleading, sets up matter inconsistent

with a guilty plea, or appears to enter a plea

improvidently or through lack of understanding of its

meaning or effect, the plea shall not be accepted by the

court.   Rejection of a guilty plea on appellate review

requires that the record of trial show a substantial basis

in law and fact for questioning the guilty plea.    United

States v. Prater, 

32 MJ 433, 436

 (CMA 1991).

     To guard against improvident pleas under Article 45,

RCM 910(e), Manual, supra, provides: “The military judge

shall not accept a plea of guilty without making such


                              6
United States v. Jordan, No. 01-0483/MC


inquiry of the accused as shall satisfy the military judge

that there is a factual basis for the plea.”   In order to

establish an adequate factual predicate for a guilty plea,

the military judge must elicit “factual circumstances as

revealed by the accused himself [that] objectively support

that plea[.]”   United States v. Davenport, 

9 MJ 364, 367

(CMA 1980).   It is not enough to elicit legal conclusions.

The military judge must elicit facts to support the plea of

guilty.   United State v. Outhier, 

45 MJ 326, 331

 (1996).

The record of trial must reflect not only that the elements

of each offense charged have been explained to the accused,

but also “make clear the basis for a determination by the

military trial judge. . . whether the acts or the omissions

of the accused constitute the offense or offenses to which

he is pleading guilty.”   United States v. Care, 

18 USCMA 535, 541

, 

40 CMR 247, 253

 (1969).

     At the same time, this Court and the Courts of

Criminal Appeals are cognizant that Prater provides for a

substantial basis test for appellate review of the

providence of guilty pleas.   By its nature, a guilty plea

case is less likely to have developed facts, particularly

where there is no accompanying stipulation of fact.   Those

facts that are part of the military judge’s providence

inquiry are not subject to the test of adversarial process.


                              7
United States v. Jordan, No. 01-0483/MC


We are similarly mindful that a decision to plead guilty

may include a conscious choice by an accused to limit the

nature of the information that would otherwise be disclosed

in an adversarial contest.       Thus, this Court has declined

to adopt too literal an application of Article 45 and RCM

910(e).   When this Court has addressed a bare bones

providence inquiry, we have not ended our analysis at the

edge of the providence inquiry but, rather, looked to the

entire record to determine whether the dictates of Article

45, RCM 910, and Care and its progeny have been met.

      In United States v. Sweet, 

42 MJ 183

 (1995), the

providence inquiry included little more than a recitation

by the military judge of the elements of indecent acts and

the Manual’s explanation as to the meaning of “indecent,”

followed by the accused’s “Yes, sir” admission of guilt.

However, during the providence inquiry in Sweet, the

military judge cross-referenced a stipulation of fact

offered by the accused.4      On review, this Court acknowledged

“that a more detailed inquiry in many instances may be

advisable or even necessary in order to resolve questions

surrounding the providence of pleas.”         

Id. at 185

.     We

nonetheless took into consideration related factors,


4
 The military judge stated: “Ensign Sweet, Specification 1 and 2 allege
that you committed certain acts. The Stipulation details those acts.”

42 MJ at 184

.


                                   8
United States v. Jordan, No. 01-0483/MC


including the existence of and reference to the

stipulation, and the accused’s status as a commissioned

officer, in concluding that his “yes” and “no” answers to

the military judge’s inquiry responded to questions of fact

and not just conclusions of law.   

Id.

     To affirm appellant’s guilty plea in this case would

require us to go further than Sweet and conclude that a

providence inquiry that includes conclusions of law alone

satisfies the requirements of Article 45 and RCM 910(e).

It does not.

     Regarding the third element of unlawful entry, the

colloquy between appellant and the military judge set forth

in the appendix of this opinion reveals that appellant

simply responded “Yes, sir” to the several questions put to

him as to whether his conduct was prejudicial to good order

and discipline or service discrediting.   These questions

were legal conclusions with which appellant was asked to

agree without any admissions from him to support them.5     As

such, they were “[m]ere conclusions of law recited by an

accused [that] are insufficient to provide a factual basis

for a guilty plea.”   Outhier, 

45 MJ at 331

.   Indeed, on the

question of service discrediting conduct, appellant’s

statements that the owner appeared neither upset nor




                              9
United States v. Jordan, No. 01-0483/MC


agitated and that she declined to press charges when

invited to do so suggest that the service’s reputation may

not have been impugned at all.6

      As a matter of law, we have no doubt that in a given

factual scenario, boarding a sailboat without the

permission of the owner could constitute the offense of

unlawful entry under Article 134.         However, based on the

totality of the circumstances here, as revealed by

appellant, we are at a loss to find the basis for the

military judge’s conclusion that appellant’s conduct was

prejudicial to good order and discipline in the armed

forces or was of a nature to bring discredit upon the armed

forces.   Appellant stated he was curious about the vessel

because it looked like his grandmother’s boat.           This caused

him to lean on the boat to get a better view.           His body

weight shifted from the dock to the rail of the boat. See

pages 1, 3, 4, and 8 of the appendix to this opinion.

      Furthermore, this is not a case where considerations

beyond the record of trial such as those found in Sweet are

applicable.    Appellant was not an officer; he was a Private

(E-1) with twelve months of service.         He was not even sure

5
 See page 6 of the appendix to this opinion.
6
 To the extent there is any indication of the trial judge’s logic, it
may be found in his statement: “It [appellant’s actions] certainly
didn’t do anything for this civilian lady out there on that boat[.]” See
page 7 of the appendix.



                                   10
United States v. Jordan, No. 01-0483/MC


what part of the vessel the military judge meant when he

referred to the stern.      Nor is there a stipulation of fact

cross-referenced in the military judge’s inquiry which

could provide a factual basis for concluding that

appellant’s conduct was service discrediting.

The plea inquiry must establish the factual predicate for

the plea.    This inquiry does not.7      The factual

circumstances as revealed by appellant do not objectively

support the third element of unlawful entry.           United States

v. Faircloth, 

45 MJ 172, 174

 (1996).         Therefore, a

substantial basis in law and fact exists in the record to

question his guilty plea to this offense.          Prater, 

32 MJ at 436

.

                               Decision

       The decision of the United States Navy-Marine Corps

Court of Criminal Appeals is reversed as to Specification 5

of Charge III and the sentence.         The finding of guilty to

Specification 5 of Charge III and the sentence are set

aside.    The record of trial is returned to the Judge

Advocate General of the Navy for remand to the Court of

Criminal Appeals, which may order a rehearing or dismiss




7
 In light of this conclusion, we need not and do not reach a conclusion
regarding the specific granted issues.


                                   11
United States v. Jordan, No. 01-0483/MC


the affected specification and reassess the sentence based

on the remaining findings of guilty.




                             12
                         APPENDIX

     MJ:   Okay, Specification 5 is along the following
lines:

     One, that on or about 27 June, 1999, you entered the
     private boat of another, to wit: George and Toni Rowe;

     Two, that such entry was unlawful;

     Third, that under the circumstances your conduct was
     to the prejudice of good order and discipline in the
     armed forces or was of a nature to bring discredit
     upon the armed forces. Now, I want you to tell me
     what you did on the 27th of June related to this
     Specification that makes you think you are guilty of
     this.

     ACC: Down by the Port, we were walking, and I saw a
boat that looked exactly like my grandmother’s back home,
and I walked over to look at it and I leaned onto the boat,
when [sic] my feet off the ground leaning into the boat
looking, and that’s basically what happened, sir. I didn’t
board the boat. [Defense counsel conferred with the
accused.]

     MJ: Private Jordan, I think you were talking with your
counsel, you might have something else to tell me?

     ACC: Just that my entire body weight was on the boat,
     sir.

     MJ: Your entire body weight was on the boat?

     ACC: Yes, sir.

     MJ: What kind of a boat was it?

     ACC: It’s a sailboat, sir.

     MJ: Sailboat.    Are you familiar with sailboats?

     ACC: Not really, sir.

     MJ: What size was it?

     ACC: Probably like 25 feet, sir.
     MJ: 25 footer?

     ACC: Something like that, I think so.

     MJ: Was it the size that a person could live on?

     ACC: Yes, sir.

     MJ: Was there any evidence that, not immediately while
you were there, but was there any evidence that people were
using it as a place [of] habitation, a place to live,
intermittently or at all?

     ACC: Um, not--[defense counsel conferred with the
accused] Yes sir, when I leaned onto the boat I noticed
there was somebody in the cabin area, sir.

     MJ: Oh, so there was someone in the boat at the time?

     ACC: Yes, sir.

     MJ: How many people?

     ACC: Just one that I saw, sir.

     MJ: Now, was this boat tied to some sort of a pier?

     ACC: Yes, sir.

     MJ: And, when you said you were leaning in, I mean, my
vision of this is that there was probably an open area near
the stern. Is that correct?

     ACC: I’m not sure what a stern is.

     MJ: The back end, the butt end.

     ACC: Yes, sir.

     MJ: And there was some sort of a cabin over the
forward end?

     ACC: It was kind of in the middle, sir.

     MJ: Okay, that was the built up area?

     ACC: Yes, sir.


                            2
      MJ: And that’s where you saw this person?

      ACC:   There was a window that I saw her in.

      MJ: I’m sorry, her?

      ACC: It was a lady, sir. Yes, sir.

     MJ: Now, as you were standing on the pier, tell me
what you did when you were “looking into this boat”?

      ACC: I leaned on it and I was just looking all around
it.

      MJ: Where were your feet?

      ACC: My feet were in the air.

      MJ: Your feet were in the air?

      ACC: Yes, sir.

     MJ: Maybe we should start at the beginning, I mean, as
you are approaching this boat, you are walking along the
pier, is that correct?

      ACC: Yes, sir.

      MJ: Wooden planks?

      ACC: Yes, sir.

      MJ: Feet are clop, clop, clopping along on the wood?

      ACC: Yes, sir.

     MJ: How did it come to pass that you ended up with
your feet in the air? I’m having trouble picturing this.

     ACC: When I leaned on to the boat, I was leaning
on----

      MJ: Are you hanging on to some of the rigging?

     ACC: No, I leaned onto the boat, sir, and my feet
came up while I was leaning on it.



                             3
     MJ: Oh, okay. So you were, pardon my naval ways, you
were leaning over the gunnel? The side of the ship--the
side of the boat?

     ACC: Yes, sir.   Over the railing, sir.

     MJ: The railing, okay. So you were sort of teeter
tottering, if you will, on the edge of this craft. Was it
your waist that was physically in touch with the railing?

     ACC: Yes, sir.

     MJ: Did this person on the boat see you, if you know?

     ACC: Yes, sir.

     MJ: If you know, how did you come to be discovered in
this particular operation?

     ACC: When the female saw me, I guess.

     MJ: And what happened then?

     ACC: She--actually right as she had seen me, the other
lance corporal had came [sic] by and said that I was----

     MJ: Is this Ragan Louis?

     ACC: No, that--this is Lance Corporal Bain.

     MJ: Oh, he’s the roving patrol?

     ACC: Yes, sir, and he came by and right as he came by
I noticed that there was a female on the boat, so I got off
of it. He asked the female if everything is okay, and she
had said that I was leaning on her boat and that she wishes
that I would be taken off, and he says “okay ma’am. Do you
want to press charges?”, and she said “no”, and we just
left, sir.

     MJ: Would this lady have been Toni Rowe, to your
knowledge?

     ACC:   I really don’t know her name, sir.

     MJ: Do we know it now?



                              4
     DC: Yes, sir.

     ACC: Yes, sir.

     MJ: So we know now, he didn’t know it then, but we
know it now?

     ACC: Yes, sir.

     MJ: I assume her husband or her significant other is
this George Rowe?

     ACC: Yes, sir.

     MJ: And that they owned this boat?

     ACC: Yes, sir.

     MJ: Just a minute, gentlemen. [Military judge
reviewed the R.C.M. Manual.] All right. If there is
something you want to consult about, I didn't mean to
interrupt.

     DC: No, sir.

     MJ: Now, when we talked about unlawful entry, I’m
going to repeat these elements for you:

         First of all, that on or about 27 June 1999, you
entered the private boat of another, to wit: George and
Toni Rowe;

         Two, that such entry was unlawful; and

         Three, under the circumstances your conduct was to
the prejudice of good order and discipline in the armed
forces, or as [sic] a nature to bring discredit upon the
armed forces.

         Now, first of all, with regard to entry of a
private boat, you understand that entry must [be] effected
before the offense is complete. Do you understand that?

     ACC: Yes, sir.




                           5
      MJ: Do you also understand that entry of any part of
the body, even a finger, is sufficient. Do you understand
that?

     ACC: Yes, sir.

     MJ: Under those circumstances, do you believe that you
entered this private boat?

     ACC: Yes, sir.

     MJ: Do you believe and admit that here today?

     ACC: Yes, sir.

     MJ: Any question in your mind about that?

     ACC: No, sir.

     MJ: Now, do you understand that the term “unlawfully”
means to enter without consent of a person authorized, or
any person authorized to consent to the entry. Do you
understand that?

     ACC: I understand, yes, sir.

     MJ: Did anyone authorize[d] to consent to your entry
authorize you to do so?

     ACC: No, sir.

     MJ: You were just curious?

     ACC: Yes, sir.

     MJ: And you also admit that your behavior in that
occasion, with respect to that boat, entry of that boat,
that your conduct was to the prejudice of good order and
discipline in the armed forces?

     ACC:   Yes, sir.

     MJ: And that your conduct was conduct of a nature to
bring discredit upon the armed forces?

     ACC: Yes, sir.



                           6
     MJ: And that that prejudice and good order was
reasonably direct and an obvious entry to good order and
discipline [sic]?

     ACC: Yes, sir.

     MJ: And finally, that your conduct was of the nature
to harm the reputation of the service or lower it in public
esteem, is that correct?

     ACC: Yes, sir.

     MJ: It certainly didn’t do anything for this civilian
lady out there on that boat, did it. . . .

                               * * *

     MJ: Lieutenant Larson, do you wish me to conduct any
further inquiry?

     TC: Just one question, sir.

     MJ: Uh-huh.

     TC: And this covers both Specifications 5 and 2; two
questions I guess. Did Mrs. Rowe express to the accused any
displeasure about him boarding her boat, or to the other
members of the military; and did she express to the accused
or to any other members of the military concern about, for
Specification 2, that the accused was down at the pier and
his actions with Miss Hill?

     MJ: Okay, I think I see where you are going. Yes,
Lieutenant?

     DC: Sir, I will object to that, that would be evidence
that might--that trial counsel might attempt to bring out
on the aggravation phase. However, in terms of the evidence
itself for the providence inquiry, sir, I believe that it’s
not related to that, sir.

     MJ: Well, I’m going to say this, in terms of bringing
the service reputation into disrepute, I’m going to ask the
questions about what her reaction was to his appearance on
the boat.

     DC:   Yes, sir.


                           7
     MJ: Private Jordan, can you describe what Mrs. Rowe’s
reaction was upon seeing you leaning over the edge of the
boat the way you were?

     ACC: She came out, she’s like “hello, hello” like
that, and I’m like “I’m sorry, ma’am” and I got off and
then he came around the corner.

     MJ: Did she seem to be upset?

     ACC: No, sir.

     MJ: Did she seem to be agitated?

     ACC: No, sir.




                           8
United States v. Jordan, No. 01-0483/MC


     CRAWFORD, Chief Judge (dissenting):

     As noted by Senior Judge Sullivan, with whom I agree, the

majority engages in a curious appellate practice by disposing of

this case based on an issue that was not raised or briefed by

either of the parties.   Further, the majority’s holding is a

ground-breaking opinion in that it constitutes a radical

departure from over three decades of guilty plea jurisprudence

in the military justice system.   Finally, the majority’s view is

inconsistent with our prior case law, RCM 910, Manual for

Courts-Martial, United States (2000 ed.), and United States v.

Vonn, 

535 U.S. ___

, ___, 

122 S. Ct. 1043, 1052-53

 (2002).    For

all of the above procedural and substantive reasons, I must

respectfully dissent.

     Procedurally, the majority has decided this case based upon

an allegedly incomplete providence inquiry concerning whether

appellant’s conduct was prejudicial to good order and discipline

or service discrediting, an issue that was not raised or briefed

before either our Court or the court below.   Essentially, the

majority has specified and decided an issue without allowing the

parties the opportunity to be heard on that issue.   Following

good appellate practice, we should return the case to the Judge

Advocate General of the Navy.   He can then decide whether to

dismiss Specification 5 of Charge III and remand the case to the

Court of Criminal Appeals for sentence reassessment, or to
United States v. Jordan, No. 01-0483/MC


return the case to the Court of Criminal Appeals for that court

to determine whether there was an adequate providence inquiry

concerning whether appellant’s conduct was prejudicial to good

order and discipline or service discrediting.           At a minimum, the

majority should formally specify the issue, order briefs from

the parties, and preserve the option for additional oral

argument before the Court, as we recently ordered in United

States v. Baker, 

56 MJ 165

 (2001).

      As to the substance of the majority’s opinion, they cite no

case where this Court has required more than an admission from

an accused that his or her conduct was prejudicial to good order

and discipline or service discrediting.1          This is not a case in

which appellant argues that his conduct was not prejudicial to

good order and discipline or service discreting.            Indeed, it is

just the opposite.      If appellant wanted to contest whether his

conduct was prejudicial to good order and discipline or service

discrediting, he had that opportunity by entering a plea of not

guilty.

      In guilty plea jurisprudence, our Court now stands alone,

and out of step with our own as well as other federal court

precedents.    For more than three decades, we have ordered




1
  See United v. Key, No. 01-0646, ___ MJ ___ n.* (2002)(Crawford, C.J.,
concurring in the result).


                                      2
United States v. Jordan, No. 01-0483/MC


military judges to inquire into the factual basis of guilty

pleas,2 in order to achieve the objectives of McCarthy v.

United States, 

394 U.S. 459

 (1969), and Boykin v. Alabama, 

395 U.S. 238

 (1969) -- to ensure that any guilty plea is both

knowing and voluntary.         See RCM 910, supra; 

Vonn, supra;

 United

States v. Seybold, 

979 F.2d 582, 586-89

 (7th Cir. 1992).                 A mere

reading of the elements of the offense, accompanied by a bare-

bones response from an accused that he understands those

elements, is not sufficient to establish a knowing, voluntary

plea.     See United States v. Terry, 

21 USCMA 442

, 

45 CMR 216

(1972).

        In determining the legitimacy of a guilty plea, we have

required a discussion of the facts underlying the criminal

accusation.      We have never required military judges to perform

an in-depth inquiry concerning the meaning of “service

discrediting” or conduct “prejudicial to good order and

discipline in the military.”          In fact, one could say the

opposite is true.        See United States v. Sweet, 

42 MJ 183

 (1995).

Contrary to the majority’s assertion, there was much more to

this providence inquiry than the military judge expounding

“legal conclusions with which appellant was asked to agree

without any admissions from him to support them.”                 ___ MJ at

(9).

2
    See United States v. Care, 

18 USCMA 535

, 

40 CMR 247

 (1969).


                                        3
United States v. Jordan, No. 01-0483/MC


     The impact of the majority’s opinion is to place an

unnecessary burden on the military justice system.   In light of

this Court’s apparent rejection of three decades of its own

precedents and other federal court decisions, future providence

inquiries should now be accompanied by detailed stipulations of

fact, or when such are not forthcoming, inquiries by military

judges that chronicle on the record the manner in which an

accused’s conduct violates Articles 134 and satisfies the

majority’s new providence inquiry standard.   Practitioners will

certainly be justified in questioning the appropriateness and

wisdom of the majority judicially mandating so significant a

change to guilty plea jurisprudence.

      Because there is no substantial basis in law and fact for

questioning this knowing, voluntary guilty plea, see United

States v. Prater, 

32 MJ 433, 436

 (CMA 1991), I respectfully

dissent.




                                4
United States v. Jordan, No. 01-0483/MC


    SULLIVAN, Senior Judge (dissenting):

    The practice of this Court has been to uphold guilty pleas

where an accused’s providence inquiry “indicates not only that

the accused himself believes he is guilty but also that the

factual circumstances as revealed by the accused himself

objectively support that plea . . . .”    United States v.

Davenport, 

9 MJ 364, 367

 (CMA 1980), cited in United States v.

Boddie, 

49 MJ 310, 312

 (1998).   The majority holds that the plea

inquiry in this case does “not objectively” support a finding

“that appellant’s conduct was service discrediting”.    __ MJ at

(11).   I disagree.

    In my view, the entire plea inquiry must be considered on

this question.   Appellant admitted that “at or near the Port of

Silverdale, located at Silverdale, Washington, on or about 27

June 1999, [he] unlawfully board[ed] the private boat of George

and Toni Rowe, civilians.”   __ MJ at (3n.2). He further admitted

that his conduct was prejudicial to good order and discipline in

the armed forces and was conduct of a nature to bring discredit

upon the armed forces. (R.68)

    These admissions, however, do not stand alone in the record

of trial.   As a factual basis for this guilty plea, appellant

further admitted that he was on restriction on the day of the

incident and he broke that restriction by going to the port of

Silverdale. (R.42) Moreover, he stated that he was accompanied by

another Marine and a 15-year-old daughter of a Chief Petty
United States v. Jordan, No. 01-0483/MC

Officer at the time of the offense.        (R.70) This young girl was

the key figure in three of appellant’s other charged offenses

(two “no contact” orders violations and one barracks guest

violation).      Finally, appellant stated that he was discovered in

the act of unlawful entry by the civilian owner of the boat and

that a roving Marine patrol officer had to eventually resolve

this matter with the civilian boat owner.        (R.65)   Surely, a

public disorder involving a Marine (who is unlawfully off base)

and a civilian which necessitated action by military police to

smooth civilian and military relations fits the requirement of

military disorder or service discrediting conduct.         See William

Winthrop, Military Law and Precedents 731 (1920 Reprint)

(disorderly conduct in town).        The majority leaves these

important facts out in making its analysis.        Facts ignored,

however, do not disappear.        As Aldous Huxley has said, “Facts do

not cease to exist because they are ignored.”*

       In addition, unlike the majority, I would answer the granted

issues in this case.         The granted issues (whether the boat was a

place of habitation and whether appellant entered the boat) were

largely questions of fact that should have been raised at the

trial level.       There, the Government could have put on evidence to

resolve whether this sailboat was a place of habitation and

whether appellant made an entry by leaning on the railing of the

sailboat.      Accordingly, I would reject appellant’s belated

factual arguments concerning the validity of his guilty pleas.

*
    Proper Studies (1927).


                                       2
United States v. Jordan, No. 01-0483/MC

See generally United States v. Harrison, 

26 MJ 474, 476

 (CMA

1998) (post-trial speculation on the validity of guilty pleas

should not normally be countenanced).

    The boat in question was twenty-five feet long, with a cabin

which was capable of being lived in, and it was inhabited at the

time of the entry.    Moreover, in response to a question from the

military judge as to whether there was “any evidence that people

were using it [the sailboat] as a place [of] habitation,”

appellant answered in the affirmative after consulting with his

lawyer. (R.63)    No more was required for purposes of the military

criminal offense of unlawful entry.     See United States v.

Gillin, 

8 USCMA 669

, 

25 CMR 173

 (1958).    Accordingly, on this

basis, I would affirm the conviction.

    There is one final concern I have with the law that is being

made in this case.    Appellant pled guilty to unlawful entry of a

sailboat.    This conviction was affirmed on appeal by the Court of

Criminal Appeals.    Our Court granted two legal issues regarding

whether the sailboat was a dwelling and whether leaning on a

boat’s railing was an entry for the purposes of the crime of

unlawful entry.    The majority dodges these issues, yet reverses

this Article 134 conviction based on an issue not raised by

appellant at the trial level nor at the Court of Criminal

Appeals.    This issue, moreover, was not raised nor briefed nor

argued at our Court.

    This surprise reversal by the majority in this case is based

primarily on the three-two decision of this Court in United


                                  3
United States v. Jordan, No. 01-0483/MC

States v. Outhier, 

45 MJ 326, 331

 (1996).   The portion of Outhier

relied upon by the majority states: “Mere conclusions of law

recited by an accused are insufficient to provide a factual basis

for a guilty plea.” 

Id.

   This holding in turn is based on the

two-one decision of this Court in United States v. Terry, 

21 USCMA 442

, 

45 CMR 216

 (1972).

    If one looks at Terry, one can see that the Terry case is a

far different case than the instant case.   In Terry, the judge

merely read aloud each specification and the elements and the

accused said he understood them, then the judge accepted the

plea. 

Id.

   A more “bare bones” plea could not be imagined.   In

contrast, the transcript of the plea in the instant case was 67

pages in length, covering multiple charges, to include

appellant’s association with the 15-year old daughter of a Navy

non-commissioned officer.   As I have pointed out above, there was

a sufficient factual basis to find that the unlawful entry guilty

plea was supported in the record with regard to the service

discrediting element.




                                 4