Provident plea?

(1) An accused may not enter inaccurate, inconsistent, improvident, or uninformed pleas of guilty, and the military judge may not permit the accused to do so. UCMJ art. 45, 10 U.S.C. § 845 (1988); see United States v. Schwabauer, 37 M.J. 338 (C.M.A. 1993).

(2) Therefore, before the military judge may accept the accused’s pleas of guilty, the military judge must personally inquire of the accused as to the factual basis for the plea. R.C.M. 910(c), (e); Care, 40 C.M.R. at 253; see also United States v. Craney, 23 C.M.A. 519, 50 C.M.R. 658 (1975); United States v. Daniels, 39 M.J. 789 (N.M.C.M.R. 1993).

(3) The facts revealed by the accused must objectively support the plea. Schwabauer, 37 M.J. at 341 (citing United States v. Davenport, 9 M.J. 364, 367 (C.M.A. 1980)).

(4) The accused’s statements are taken at face value for this purpose. United States v. Jemmings, 1 M.J. 414, 418 (C.M.A. 1976).

(5) The accused’s legal conclusions alone are insufficient. United States v. Howajrah, 40 M.J. 672, 674 (N.M.C.M.R. 1994); United States v. Dunning, 40 M.J. 641, 645 (N.M.C.M.R. 1994)(citing cases).

(6) Inconsistencies and apparent defenses must be resolved by the military judge, or the guilty pleas must be rejected. Jemmings, 1 M.J. at 418; United States v. Dunbar, 20 C.M.A. 478, 43 C.M.R. 318 (1971); United States v. Jackson, 23 M.J. 650 (N.M.C.M.R. 1986), petition denied, 24 M.J. 405 (C.M.A. 1987).

(7) The military judge is not required to ferret out or negate all possible inconsistencies or defenses. Rather, the military judge is required to deal with potential issues raised during the providence inquiry or trial that indicate an inconsistency or a defense. Jackson, 23 M.J. at 652.

(8) When the accused’s responses reasonably raise the question of a defense, the [*631] military judge must make a more searching inquiry. United States v. Timmins, 21 C.M.A. 475, 45 C.M.R. 249 (1972).

(9) A military court of criminal appeals may not set aside a finding of guilty on the basis of an error of law unless the error is materially prejudicial to the substantial rights of the appellant; therefore, it will not set aside a finding of guilty based on a guilty plea unless "the record of trial shows a ‘substantial basis’ in law and fact for questioning the guilty plea." United States v. Newsome, 35 M.J. 749, 751 (N.M.C.M.R. 1992), aff’d, 38 M.J. 464 (C.M.A. 1993) (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)); UCMJ art. 59(a), 10 U.S.C. § 959(a) (1988).

(10) A military court of criminal appeals "will not engage in ‘post-trial speculation’ concerning the factual basis for guilty pleas." See United States v. McGowan, 41 M.J. 406, 410 (1995) (quoting United States v. Harrison, 26 M.J. 474, 476 (C.M.A. 1988). United States v. Outhier, 42 M.J. 626, 630–31 (N-M.C.C.A. 1995).

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