In United States v. Purdy, 67 M.J. 780 (N-M. Ct. Crim. App. 2009), the Court had to determine whether the accused’s guilty pleas to Clauses 1 and 2 were improvident because Clauses 1 and 2 are not lesser included offenses to Clause 3? The N-MCCA determined that his plea was provident. In Medina, the court ruled that “Clauses 1 and 2 are not necessarily lesser included offenses under Clause 3, although they may be, depending on the drafting of the specification.” However, in this case, the issue is not whether his conduct and the wording of the specification make Clauses 1 and 2 lesser included offenses of Clause 3. Rather, the issue after Medina is “whether he had fair notice he was pleading guilty to a distinct theory of liability as compared to that which appeared on the charge sheet.” After the court made clear in Medina that Clauses 1, 2, and 3 of Art. 134 are “distinct theories of liability,” the accused must know whether he is pleading guilty to a disorder or neglect under Clause 1, service discrediting conduct under Clause 2, or a crime or offense not capital under Clause 3. In Medina, the court noted that this could be accomplished either through the charge sheet or through the military judge’s plea inquiry. In this case, the N-MCCA was satisfied that the accused’s plea was knowing and voluntary. First, he entered into a stipulation of fact where he admitted that his conduct was both prejudicial to good order and discipline and service discrediting. Next, in his pretrial agreement, he agreed to plead not guilty to the Clause 3 offense, but guilty to offenses under Clauses 1 and 2. Lastly, the military judge explained all three theories of liability to him at the providence inquiry and explained that Clauses 1 and 2 have additional elements that Clause 3 does not have. The “underlying criminal conduct was accurately portrayed in the specification” and the trial judge made him “aware . . . that he was pleading guilty under a theory of liability distinct from that in alleged on the charge sheet.”
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