Elements of the Providence Inquiry- RCM 910(c)-(e)

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Discussion of the elements of the providence inquiry:

  1. Military judge must explain the offenses to the accused and ensure the accused understands:
    1. Waiver of rights (with respect to the charges/specifications to which he has pled guilty) (1) The right against self-incrimination, trial of the facts by the court, and right of confrontation
    2. Elements of the offense(s) to which has pled guilty
    3. And agrees that the plea admits every element, act, or omission and relevant intent
    4. That he may be convicted on the plea alone without any further proof
    5. The maximum sentence available based on the plea alone
    6. His opportunity to consult with counsel
    7. That he is entering the plea knowingly and voluntarily.
  2. Military judge must advise the accused of his rights on the record. RCM 910(c).
  3. Military judge must advise the accused of the elements of the offense. RCM 910(c)(1) and Discussion.
    1. Where there is a challenge in defining a term of an element, there are three sources to find the meaning of terms not defined in statute: “(1) the plain meaning of the term; (2) the manner in which Article III courts have construed the term; and (3) the guidance gleaned from any parallel UCMJ provisions.”
      United States v. Craig
      , 67 M.J. 742 (N-M Ct. Crim. App. 2009)(citing
      United States v. Kuemmerle
      , 67 MJ 141 (C.A.A.F. 2009).
    2. When the military judge has to define a term of art (like attempt), appellate courts will ascertain whether the plea was knowing and voluntary by looking at the record of trial and deciding whether it is clear from the entire record that the accused knew the elements, admitted them freely, and pled guilty because he was guilty.
      See United States v. Redlinski
      , 58 M.J. 117 (C.A.A.F. 2003).
    1. The accused shall be questioned under oath about the offense(s) as part of the guilty plea inquiry. RCMs 910(c)(5), 910(e)
      1. The military judge must ascertain why the accused believes he is guilty and advise the accused of the elements of the offense. (1) Leading questions by the military judge are generally disfavored.
        United States v. Nance
        , 67 M.J. 362 (C.A.A.F. 2009) (2) If the military judge conducts too little of an inquiry, the case may be set aside.
        United States v. Bailey
        , 20 M.J. 703 (A.C.M.R. 1985) and
        United States v. Frederick
        , 23 M.J. 561 (A.C.M.R. 1986)(military judge’s inquiry requiring simple yes or no answers when asked whether he did that which the specification alleged was inadequate). (3) The colloquy is between the Military Judge and the accused- not between the Military Judge and counsel.
        See United States v. Hartman
        , 69 M.J. 467 (C.A.A.F. 2011)(where military judge asked the trial counsel questions regarding the accused’s conduct within the confines of the
        factors in a consensual sodomy case, the court held the plea improvident because the Military Judge failed to discuss those factors with the accused).

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