UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
KRIMBILL, BROOKHART, and ARGUELLES!
Appellate Military Judges

UNITED STATES, Appellee
v.
Private E1 MARK A. HAYGOOD
United States Army, Appellant

ARMY 20190555

Headquarters, National Training Center and Fort Irwin
Mark A. Bridges and Joseph A. Keeler, Military Judges
Lieutenant Colonel Philip M. Staten, Staff Judge Advocate

For Appellant: Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D.
Pond, JA; Major Kyle C. Sprague, JA; Captain Thomas J. Travers, JA (on brief);
Colonel Michael C. Freiss, JA; Lieutenant Colonel Tiffany D. Pond, JA; Major Kyle
C. Sprague, JA; Captain Thomas J. Travers, JA (on reply brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Dustin B. Myrie, JA; Major Austin I. Price, JA (on brief).

30 September 2020

This opinion is issued as an unpublished opinion and, as such, does net serve as precedent.
BROOKHART, Senior Judge:

A military judge sitting as a general court martial convicted appellant,
pursuant to his pleas, of eight specifications of failing to go at the time prescribed to
his appointed place of duty; two specifications of leaving his appointed place of duty
without authority; one specification of disrespect toward a superior commissioned
officer; two specifications of willfully disobeying a superior commissioned officer;
three specifications of willfully disrespecting a noncommissioned officer; five
specifications of willfully disobeying a noncommissioned officer; two specifications
of failing to obey a lawful order; one specification of wrongfully damaging property
other than military property amounting to less than $1,000.00; and one specification

 

' Judge Arguelles decided this case while on active duty.
HAY GOOD—ARMY 20190555

of disorderly conduct, in violation of Articles 86, 89, 90, 91, 92, 109, and 134,
Uniform Code of Military Justice, 10 U.S.C. $§ 886, 889, 890, 891, 892, 909, and
934 [UCMJ].?

The military judge sentenced appellant to a bad-conduct discharge,
confinement for 288 days, and forfeiture of all pay and allowances. The convening
authority approved the sentence as adjudged.?

This case is before the court for review pursuant to Articie 66, UCMJ.
Appellant’s sole assignment of error is that there was not an adequate basis in law
and fact to support his guilty plea to two of the Article 91, UCM] specifications.
For the reasons that follow, as to one of the specifications at issue, Specification 5
of Charge IV, we agree and provide relief in our decretal paragraph.*

BACKGROUND

The offenses in this case occurred on Fort Irwin, California between
December 2018 and May 2019. At issue here are Specifications 5 and 8 of Charge
IV, in which appellant pleaded guilty to two violations of willfully disobeying a
noncommissioned officer, in violation of Article 91, UCMJ.

Specification 5 alleged:

In that Private E-1 Mark A. Haygood, U.S. Army, having
received a lawful order from Sgt Justin Sarmiento, a

Noncommissioned Officer, then known by said Private E2
[sic] Mark A. Haygood to be a Noncommissioned Officer,

 

* As part of the plea agreement, the government agreed to dismiss one specification
of assault consummated by battery and one specification of burglary in violation of
Articles 128 and 129, UCMJ.

3 Although this case was referred on 5 July 2019 and 8 August 2019, per the
convening authority’s action the sentence was both “approved” and “executed.” For
cases referred after 1 January 2019, the convening authority is no longer required to
“execute” the sentence. Rule for Courts-Martial [R.C.M.] 1102. To the extent this
was error, however, it was neither jurisdictional nor prejudicial to appellant’s right
to seek clemency. Cf United States v. Coffman, 

(Army Ct. Crim. App.
2020).

4 We have also given full and fair consideration to the matters personally raised by
appellant pursuant to United States v. Grostefon, 

(C.M.A. 1982), and
find them to be without merit.
HAYGOOD—ARMY 20190555

to stand by your door at 0600 hours for inspection, an
order which it was his duty to obey, did, at or near Fort
Irwin, California, on or about 18 February 2019, willfully
disobey the same.

Specification 8 alleged:

In that Private E-1 Mark A. Haygood, U.S. Army, having
received a lawful order from SSG Samantha Jo Licon, a
Noncommissioned Officer, then known by said Private E2
[sic] Mark A. Haygood to be a Noncommissioned Officer,
to be outside of your barracks room at 1700 hours for the
Command Sergeant Major walkthrough, an order which it
was his duty to obey, did, at or near Fort Irwin, California,
on or about 19 March 2019, willfully disobey the same.

Prior to discussing the two specifications at issue, the military judge
thoroughly explained the ramifications of appellant’s guilty plea and the rights he
was forfeiting by virtue of his plea. The military judge also explained the meaning
and purpose of the stipulation of fact, ensuring that appellant fully understood and
agreed to it. The military judge continually confirmed appellant’s understanding of
the process and its consequences.

As part of the providence inquiry, the military judge explained that “willful
disobedience” means “an intentional defiance of authority.” When asked why he
was guilty of the offense alleged in Specification 5 of Charge IV, appellant stated
that he knew of the order to be outside his barracks door at 0600 and failed to show
up as ordered. He told the military judge, “I was still asleep and I failed to open the
door.” During follow-up questioning from the military judge, appellant reiterated
that he “willfully disobeyed the order” and that medication was not to blame. He
stated, “I just didn’t wake up.” Similarly, in his stipulation of fact, appellant
admitted to willfully disobeying Sergeant Sarmiento’s order “by being absent for
this inspection.”

As it pertains to Specification 8 of Charge IV, appellant admitted that he
knew of the order to be outside of his barracks at 1700 hours and that he “did not
show up.” Although he did not remember specifically what he was doing at the
time, appellant stated that he was not following orders to be somewhere else, but
rather, “I just didn’t go.” Appellant subsequently confirmed that he “willfully
disobeyed the order.” In his stipulation of fact appellant admitted that “[d]espite
having knowledge of this lawful order [to be at his door at 1700], I willfully
disobeyed it.”
HAYGOOD—ARMY 20190555
LAW AND DISCUSSION

We review a military judge’s acceptance of a guilty plea for an abuse of
discretion, and questions of law arising from the guilty plea de novo. United States
v. Murphy, 

, 305 (C.A.A.F. 2015) (citing United States v. Inabinette, 

, 322 (C.A.A.F. 2008)).

The elements of willfully disobeying the lawful order of a noncommissioned
officer in violation of Article 91, UCMJ, are: (1) the accused was an enlisted
service member; (2) the accused received a certain lawful order from a
noncommissioned officer; (3) the accused knew that the person who gave the order
was a noncommissioned officer; (4) the accused had a duty to obey the order; and
(5) the accused willfully disobeyed the order. Manual for Courts-Martial, United
States (2019 ed.), pt. IV, J 17.b.(2}. Appellant does not dispute the first four
elements. Rather, he asserts that the military judge failed to establish a sufficient
factual basis that his failure to show up for either inspection was “willful.”

When an appellant has pleaded guilty, the validity of the conviction “must be
analyzed in terms of the providence of his plea, not sufficiency of the evidence.”
United States v. Faircloth, 

, 174 (C.A.A.F. 1996). The military judge is
responsible for determining whether there is an adequate basis in law and fact to
support a guilty plea. 

(citation omitted). To that end, a
providence inquiry must establish “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. Higgins, 

, 68 (C.M.A.
1994) (quoting United States v. Davenport, 

, 367 (C.M.A. 1980)). It is
not sufficient to merely obtain the accused’s consent to the elements as defined,
rather, the military judge must question the accused “about what he did or did not
do, and what he intended” in order to establish the providence of his plea. United
States v. Care, 

, 253 (1969). A military judge abuses this discretion
where he fails to obtain an adequate factual basis to support the plea. 

.

In reviewing a military judge’s acceptance of a plea, we apply a substantial
basis test: “Does the record as a whole show ‘a substantial basis’ in law and fact for
questioning the guilty plea.” /d. (citations omitted). Put another way, once the
military judge accepts the plea and enters a finding, “an appellate court will not
reverse that finding and reject the plea unless it finds a substantial conflict between
the plea and the accused’s statements or other evidence of record,” to include the
stipulation of fact. United States v. Garcia, 

, 498 (C.A.A.F. 1996);
United States v. Sweet, 

, 185 (C.A.A.F. 1995) (in determining whether a
guilty plea is provident, the military judge may consider “the facts contained in the
stipulation [of fact] along with the inquiry of appellant on the record”). Finally, the
“mere possibility” of such a conflict between the plea and appellant’s statements is
HAYGOOD—ARMY 20190555

not a sufficient basis to overturn the trial results. 

(citing
United States v. Prater, 

, 436 (C.M.A. 1991)).

Specification 5

With respect to Specification 5 of Charge IV, appellant argues that the
military judge erred by failing to establish an adequate factual basis for his plea.
Specifically, appellant argues that the factual inquiry does not demonstrate he
possessed the required mens rea for the offense of willfully disobeying a lawful
order from a noncommissioned officer. We agree.

The willful element of the offense, as defined by the military judge, requires
“an intentional defiance of authority.” United Sates v. Henderson, 

, 233
(C.A.A.F. 1996) (per curiam) (citing United States v. Nixon, 

, 260
(1972) (Darden, C.J., dissenting); United States v. Bratcher, 

, 128
(1969)). While appellant admitted directly to the military judge, and also in the
stipulation of fact, that he willfully disobeyed the order, those statements were
conclusory and were not ultimately supported by the factual basis provided to the
military judge. When questioned about the underlying facts, appellant admitted only
that he “just didn’t wake up” and was “still asleep” at the time prescribed in the
order. Those facts alone do not demonstrate an intentional defiance of authority, but
rather suggest negligence or some lesser mens rea. See, e.g., United States v. Bush,
2007 CCA LEXIS 259, at *3-4 (A.F. Ct. Crim. App. 13 June 2007) (per curiam)
(finding the appellant’s testimony that he “just kind of nodded off” inconsistent with
his plea to willful dereliction for sleeping on duty). Although we normally accord
military judges significant deference in finding an adequate factual basis for a plea,
under these facts, we find there is a substantial question as to whether appellant’s
actions were willful. Therefore, we agree with appellant that the military judge
abused his discretion by accepting appellant’s plea to Specification 5 of Charge IV
without establishing appellant possessed the required mens rea.

We do find that appellant was provident to the remaining elements of the
offense of willful disobedience of a noncommissioned officer. Accordingly, we
affirm a finding of guilty to the lesser-included offense of failure to obey other
lawful order, in violation of Article 92, UCMJ, which shares all the same elements
except willful disobedience. MCM, pt. IV, { 18.b.(2); see UCM] art. 59(b); see also
United States v. Jones, ARMY 20110974, 2015 CCA LEXIS 132, at *7 (Army Ct.
Crim. App. 

) (summ. disp.) (citing United States v. Ranney, 

,
298-99 (C.A.A.F. 2009)). We reassess appellant’s sentence in our decretal
paragraph.
HAYGOOD—ARMY 20190555
Specification 8

Appellant’s challenge to Specification 8 of Charge IV, however, is without
merit. In response to the military judge’s questioning, he stated that he knew of
Staff Sergeant Licon’s order and willfully disobeyed it by not appearing for the
inspection. The military judge also established that appellant had no lawful excuse
or justification for his absence, but rather voluntarily chose to be elsewhere. Given
that there are no specifications alleging that appellant struck or was disrespectful to
a noncommissioned officer, appellant’s claim that “[t]here were no additional details
about any confrontation with a noncommissioned officer, subversive comments, or
defiant deportment” misses the mark entirely. Unlike Specification 5 of Charge IV,
based on this record, there is not a “mere possibility” that appellant’s conduct in
disobeying the order was anything other than willful.

Finally, the cases that appellant cites are easily distinguishable. In United
States v. Henderson, our superior court held that the relevant factors in determining
whether there is a violation of Article 91, UCMJ, include the nature and source of
the order, and whether or not there was an intentional defiance of authority. 44 M_J.
232, 233 (C.A.A.F. 1996) (per curiam). The order at issue in Henderson was
nothing more than “a reminder to get dressed quickly or he would miss formation,”
and there was no evidence that the appellant openly defied it. Zd. at 234. In
contrast, the order at issue in Specification 8 did not merely pertain to “standing
order” formations and, more significantly, appellant intentionally defied it.

In United States v. Thompkins, our superior court held that willful
disobedience is intentional defiance and not merely “failure to comply with an order
through heedlessness, remissness, or forgetfulness.” 

, 45 (C.A.A.F. 2003)
(citation omitted). For the reasons set forth above, appellant’s failure to appear at
the 1700 inspection was not the result of heedlessness or forgetfulness; rather, it
resulted from his act of intentional defiance.

CONCLUSION

The finding of guilty to Specification 5 of Charge IV is SET ASIDE. A
finding of guilty to the lesser-included offense of failure to obey other lawful order,
in violation of Article 92, UCMJ, is AFFIRMED. The remaining findings of guilty
are AFFIRMED.

We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated in United States v.
Winckelmann, 

, 15-16 (C.A.A.F. 2013). We find no dramatic change in
the penalty landscape that might cause us pause in reassessing appellant’s sentence.
A military judge tried and sentenced appellant. Further, the nature of the remaining
HAYGOOD—ARMY 20190555

offenses still captures the gravamen of the original offenses and the circumstances
surrounding appellant’s conduct. Finally, based on our experience, we are familiar
with the remaining offenses so that we may reliably determine what sentence would
have been imposed at trial. We are confident that based on the entire record and
appellant’s course of conduct, the military judge sitting alone as a general court-
martial, would have imposed a sentence of at least that which was adjudged.

Reassessing the sentence based on the noted error and the remaining findings
of guilty, we AFFIRM the sentence as adjudged>. We find this reassessed sentence
is not only purged of any error but is also appropriate. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
findings set aside by our decision, are ordered restored.

Chief Judge KRIMBILL concurs.
Judge ARGUELLES, concurring in part and dissenting in part:

I concur with the majority’s judgment as to Specification 8 of Charge IV but I
respectfully disagree with the majority's determination that the military judge
abused his discretion in accepting appellant’s guilty plea to Specification 5 of
Charge IV. I find a sufficient factual basis in the record to sustain appellant’s guilty
plea to Specification 5 of Charge IV.

The issue on review is not whether in hindsight the military judge could have
asked additional follow-up questions, but is rather whether the military judge abused
his discretion in accepting the plea on the basis that the colloquy and stipulation of
fact sufficiently established willful disobedience. See United States v. Wear, ARMY
20160508, 2018 CCA LEXIS 212, *6 (Army Ct. Crim. App. 27 Apr. 2018) (summ.
disp.) (noting the substantial discretion afforded to military judges in determining
when additional inquiry is warranted).

As noted above, after acknowledging that he understood the term “willful
disobedience” to mean an “intentional defiance of authority,” appellant admitted that
he willfully disobeyed the order by sleeping in. When offered the chance to explain
if medication was the cause for his conduct, appellant reiterated that he “just didn’t
wake up.” If appellant’s failure to get up was negligent instead of intentional, i.e.
he forgot to set an alarm, his battle buddy failed to wake him up, etc., he was
afforded the opportunity to say so when asked about the medication. Instead, two
questions later appellant again reiterated that in failing to be outside his door at
0600 he “willfully disobeyed” SGT Sarmiento’s order. See Inabinette, 66 M.J. at

 

> The Judgment of the Court dated 16 September 2019, is modified to reflect that
appellant was credited with 117 days credit against his sentence to confinement, as
noted in the convening authority action.
HAYGOOD-—ARMY 20190555

322 (“There exist strong arguments in favor of giving broad discretion to military
judges in accepting pleas, not least because facts are by definition undeveloped in
such cases.”). Likewise, in his stipulation of fact, appellant again acknowledged
that he “willfully disobeyed” the order. See United States v. Forbes, 

,
282 (C.A.A.F. 2019) (“Appellant agreed he understood each element and definition
and agreed that they accurately described the conduct as charged.”).

Based on this record and given our mandate to afford substantial deference to
the military judge’s determination as to whether to conduct additional inquiry, there
is no “substantial conflict” between the plea and the accused’s statements. Put
another way, there was nothing in either appellant’s providence inquiry or his
stipulation of fact that should have caused the military judge to be concerned that
appellant’s failure to be outside his door at 0600 was anything other than willful
disobedience. Cf Bush, 2007 CCA LEXIS 259, at *3 (finding the military judge
erred in accepting the appellant’s guilty plea where the appellant stated during
providence that he did not willfully fail to stay awake but was rather tired “and just
kind of nodded off”).

To the contrary, as was the case in Forbes, the military judge in this case
“conducted a more than adequate plea inquiry—clarifying concepts, defining terms,
summarizing the law, and repeatedly pausing to ensure [a]ppellant’s 

. In so doing, the military judge determined that “there was an
adequate basis in law and fact to accept [the] pleas,” and did not abuse his discretion
in accepting them. Jd. Consequently, I disagree with my colleagues and would
affirm the finding of guilty to Specification 5 of Charge IV.

FOR THE COURT:

Mek

MALCOLM H. § Ro JR.
Clerk of Court