Childers v. State
| Decision Date | 11 June 2020 |
| Docket Number | Docket No.: CR-19-52 |
| Citation | 2020 Ark. 241,602 S.W.3d 90 |
| Parties | Adam S. CHILDERS, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Supreme Court |
Gapasin, Capovilla & Williams, by: Nathan Freeburg, pro hac vice; and The Asa Hutchinson Law Group, PLC, Rogers, by: W. Asa Hutchinson III, for appellant.
Leslie Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't Att'y Gen., for appellee.
A court-martial convened by the Arkansas Army National Guard (hereafter, the "Arkansas Guard") convicted Chief Warrant Officer 4 Adam S. Childers (Childers), a member of the Arkansas Guard, of various charges and specifications. Childers, who is also employed as a federal technician at the Arkansas Aviation Facility, appeals from a finding of guilty of two specifications of cruelty and maltreatment and two specifications of failure to obey an order or regulation.
At the court-martial proceedings, Childers entered a negotiated plea of guilty to these charges, but specifically reserved his right to appeal. On appeal to this court, Childers argues that because he was not in a "duty status" at the time of the incident that led to his court-martial, the court-martial lacked jurisdiction over him. We agree. As to the charges and specifications Childers is appealing, we reverse the lower tribunal's determination on jurisdiction and dismiss.
Childers’ alleged offenses occurred on December 12, 2016, between 6:00 p.m. and midnight in Norman, Oklahoma. On the morning of December 12, Childers, together with other co-employees of the Arkansas Aviation Facility who were also members of the Arkansas Guard, gathered at Camp Robinson at 7:00 a.m. This was the standard time and place for weekend inactive-duty training ("IDT") for Arkansas Guardsmen. The small group that gathered on December 12 did so in anticipation of traveling as a group to a National Guard Bureau Aviation Safety and Standardization conference in Norman, Oklahoma. Childers attended this conference under the Additional Flight Training Period Program ("AFTPP"). Pay and allowances for AFTPPs are authorized as IDT for purposes of U.S.C. Title 32.
Childers and the others who traveled with him rode to the conference in an SUV owned by the Arkansas Guard. This group was traveling to the conference under AFTPP/IDT status. Their AFTPP/IDT status did not change when they loaded into the SUV and left the Camp Robinson premises. Neither did their pay status. Both their duty status and pay status remained the same from their 7:00 a.m. gathering time until they arrived at the conference at 6:00 p.m. Likewise, payment for meals and lodging during the performance of AFTPP/IDT does not alter a member of the Arkansas Guard's status. Instead, that reimbursement for cost expended by a member of the Arkansas Guard is provided based on where the mission for the training period is located in relation to the home-duty station—in this instance the distance between Norman, Oklahoma, and Camp Robinson. Childers’ AFTPP/IDT records reflect that on December 12, 2016, he was paid for participation in the program from 7:00 a.m. to 11:00 a.m. and then again from 11:01 a.m. to 6:00 p.m. Childers was subject to no other military orders on December 12.
The principal allegation against Childers is that sometime between 6:00 p.m. and midnight on December 12, he sexually assaulted another member of his unit who was also attending the conference. The charge sheet from Childers’ court-martial proceedings reflects that he was initially charged with four specifications of "Sexual Misconduct" under Ark. Code Ann. § 12-64-845, two specifications of "Cruelty and Maltreatment" under Ark. Code Ann. § 12-64-818, and two specifications of "Failure to Obey Order or Regulation" under Ark. Code Ann. § 12-64-817.
Childers filed a motion to dismiss arguing that he was not on active duty or Title 32 status at the time the alleged charges would have occurred. The military judge denied Childers’ motion to dismiss. After this denial, Childers entered a negotiated guilty plea, with various terms. Childers pleaded guilty to the charges and specifications for Cruelty and Maltreatment and Failure to Obey Order or Regulation. The charges and specifications for Sexual Misconduct were dismissed. Finally, Childers specifically reserved the right to appeal the military judge's decision on jurisdiction. 1
The military judge accepted Childers’ plea2 , and Childers exercised his negotiated right to appeal.
At the time of the alleged offenses, Ark. Code Ann. § 12-64-402 (Repl. 2015) provided:
These provisions provide for an appeal from a negotiated guilty plea that reserves the right to appeal an adverse determination of any specified pretrial motion. However, this appears to conflict with other provisions incorporated through Ark. Code Ann. § 12-64-714(a)(1)(B). Arkansas Code Annotated § 12-64-714(a)(1)(B) provides that the Arkansas Rules of Appellate Procedure–Criminal shall apply to all appeals to the supreme court and court of appeals. Arkansas Rule of Appellate Procedure–Criminal 1 then provides that there shall be no appeal from a guilty plea except as provided in Arkansas Rule of Criminal Procedure 24.3(b). None of the exceptions contemplated by Rule 24.3(b) would apply in this instance.
In other words, Ark. Code Ann. § 12-64-402 and Rule 910(a)(2) from the United States Manual for Courts-Martial contemplate that Childers could enter a negotiated guilty plea and still appeal the court-martial's denial of his motion to dismiss for lack of jurisdiction. On the other hand, Ark. Code Ann. § 12-64-714(a)(1)(B) and our rules of criminal procedure for appellate and trial courts do not contemplate the availability of an appeal in this situation. Considering the explicit availability of this procedure in United States court-martial proceedings and Ark. Code Ann. § 12-64-402 appeal.
The question presented on appeal is whether Childers was subject to the Arkansas Guard's court-martial jurisdiction under the law in effect at the time of the alleged offenses. This court reviews a lower tribunal's determination of jurisdiction de novo on appeal. A court-martial is a tribunal of limited jurisdiction, and the bounds of court-martial jurisdiction are set by the legislature. As to the general court-martial authority for the Arkansas Guard, Ark. Code Ann. § 12-64-801 provides that "[n]o person may be tried or punished for any offense provided for in this code, unless it was committed while he or she was in a duty status." At the time of the alleged offenses, Ark. Code Ann. § 12-64-402 provided:
(Repl. 2015). While Ark. Code Ann. § 12-64-402 provides that court-martial jurisdiction is "presumed" and places the burden of proving otherwise upon the accused, military courts for the United States have held that an accused's military status is a necessary element of the charged offense to be proven beyond a reasonable doubt (see United States v. McDonagh , 14 M.J. 415, 422 (C.M.A. 1983) ).
Regardless, the facts of this case relevant to the jurisdiction issue are not disputed on appeal. No party argues that Childers was on active duty at the time of the alleged offense. Similarly, no party disputes that Childers was on AFTPP/IDT status between 7:00 a.m. and 11:00 a.m. and again between 11:01 a.m. and 6:00 p.m. And no party disputes that the alleged offense occurred between 6:00 p.m. and midnight. Again, for clarity, pilots who have met proficiency requirements may refer to their IDT periods as AFTP (Additional Flight Training Period). Childers’ pay for the period is identical to all AFTPP/IDT pay for all Guard members on the trip. Neither Childers nor any other federal employee and member of the Arkansas Guard accompanying Childers on the trip was placed on active-duty orders. An order placing a Guardsman on active duty is a status-changing event. Once someone is ordered to active duty, that person is no longer an inactive-duty guardsman, but is instead a full-time, twenty-four-hour-a-day seven-day-a-week member of the military, to be awarded pay and...
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...E.g., Gen. Ct.-Martial Case of Riemer, 900 N.W.2d 326 (Wis. Ct. App. 2017), discussed by Simon, supra note 64, at 76; Childers v. State, 602 S.W.3d 90 (Ark. 2020); State v. Davis, No. 2010-KA-0697, 2010 WL 4278277 (La. Ct. App. 2010); State v. Malone, 28 So.3d 1050 (La. Ct. App. 2009) (per ......