Arthur N. BRAY, Jr., Master Sergeant
U.S. Air Force, Appellant
Crim. App. No. 32346
United States Court of Appeals for the Armed Forces
Argued May 13, 1998
Decided September 30, 1998
For Appellant: Major Ray T. Blank, Jr.
Douglas H. Kohrt and Captain Tishlyn E. Taylor (on
For Appellee: Captain Martin J. Hindel
Brenda J. Hollis and Lieutenant Colonel Michael J.
Breslin (on brief).
Military Judge: Willard L. Pope
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Opinion as amended Feb 26, 1999
Opinion of the Court
In the early part of 1996, Master Sergeant Arthur Bray was tried by a general court-martial composed of a military judge sitting alone at Edwards Air Force Base, California. In accordance with his pleas, he was found guilty of assault and battery on a 5-year-old girl, kidnapping that child, committing an indecent act upon her, communicating a threat to her, and drunk driving, in violation of Articles 128, 134, and 111, Uniform Code of Military Justice, 10 USC §§ 928, 934, and 911, respectively. On May 23, 1996, he was sentenced to a dishonorable discharge, confinement for 37 years, total forfeitures, and reduction to the lowest enlisted grade. On August 29, 1996, the convening authority, pursuant to a pretrial agreement, approved the adjudged sentence except for confinement in excess of 30 years, which he disapproved. The Court of Criminal Appeals later affirmed in an unpublished opinion.
On January 12, 1998, this Court granted review of two issues raised in appellant’s petition for grant of review and one issue raised pursuant to United States v. Grostefon, 12 MJ 431 (CMA 1982). We also specified an issue. They ask:
The Court of Criminal Appeals’ opinion summarized the horrifying facts of appellant’s kidnapping, sexual assault, and beating of a 5-year-old girl. It then proceeded to describe the events at appellant’s trial which are the subject of this appeal.
As noted above, appellant was eventually sentenced to 37 years’ confinement. The convening authority approved 30 years’ confinement in accordance with the second pretrial agreement. This was 10 years more confinement than could have been approved under the first pretrial agreement.
The first granted issue asks whether appellant was denied effective assistance of counsel when his civilian defense counsel failed to adequately research and investigate possible defenses which might cause his initial pleas of guilty to be rejected. Appellant, relying on his own posttrial affidavit and that of his previously relieved military counsel, broadly criticized civilian defense counsel’s performance. In particular, however, he claims that "civilian counsel’s failure to properly investigate a potential defense [insecticide poisoning defense], before presenting evidence that was ultimately discarded and disclaimed, caused appellant to lose the benefit of his pretrial agreement after he had entered into a stipulation of fact and entered provident pleas that were accepted by the military judge." (Emphasis added). The bottom line is that appellant may serve 10 years more confinement under his second pretrial agreement.
As a starting point, we note that appellant has not proffered to this Court or the court below an affidavit from civilian defense counsel explaining his conduct in this case. Moreover, he has not asserted that civilian defense counsel refused to provide an affidavit on this question; nor does he argue that the lower appellate court erred in not ordering such an affidavit on its own before resolving this case. Nevertheless, we note that the record contains civilian defense counsel’s explanation for his actions, and it is a sufficient basis to reject appellant’s claim of ineffective assistance of counsel under the Supreme Court’s and our precedent. See generally Strickland v. Washington, 466 U.S. 688 (1984); United States v. Scott, 24 MJ 186 (1987) (unreasonable attorney conduct and prejudice).
Our first concern then is whether it was ineffective assistance for civilian defense counsel to attempt to call Doctor Stout to the stand during the sentence proceedings in this case. RCM 1001(c) authorizes defense counsel to introduce matters to the sentencing authority which might lessen the adjudged sentence, i.e., "matters in extenuation and mitigation." "Matter in extenuation of an offense serves to explain the circumstances surrounding the commission of an offense, including those reasons for committing the offense which do not constitute a legal justification or excuse." Matter in mitigation is otherwise offered to lessen the punishment. Here, defense counsel wanted to call Doctor Stout, a doctor of philosophy and psychology, as a "mitigation" witness who might provide some explanation for appellant’s shocking conduct.
The defense theory of "mitigation" was explained by defense counsel as follows:
Nevertheless, appellant complains that his civilian defense counsel should have realized that this "bug spray" defense testimony of Doctor Stout would invalidate his previously entered guilty pleas. He asserts that the relieved military defense counsel advised civilian defense counsel of this problem. Civilian defense counsel clearly did not consider this evidence as capable of invalidating the plea and repeatedly informed the military judge that the testimony of Ms. Stout was proferred only as sentence mitigation evidence. It was the trial judge who subsequently ruled that this evidence raised a possible legal defense to the offenses to which appellant previously pleaded guilty. Only then did civilian defense counsel consider this evidence as a possible basis for withdrawing the previously entered guilty pleas.
Thus, the critical question becomes whether civilian defense counsel provided ineffective assistance of counsel by failing to anticipate the trial judge’s action. We think not. A sanity board had been previously conducted, which concluded appellant was mentally capable of committing the charged offenses, and defense counsel knew that fact. In addition, civilian defense counsel had requested government funding for a psychiatric forensic expert to explore Doctor Stout’s rejected testimony, which was denied by this same trial judge. Finally, it is well established that intoxication evidence, not rising to the level of a defense or showing a lack of mental responsibility, does not invalidate a guilty plea. See RCM 916(l)(2) Discussion and United States v. Curtis, 46 MJ 129 (1997); see generally United States v. Hensler, 44 MJ 184 (1996)(involuntary intoxication treated like legal insanity). Civilian defense counsel’s failure to anticipate the military judge’s ruling was not unreasonable.
The next question we must address is whether it was ineffective assistance of counsel to advise appellant to withdraw his guilty plea and risk losing the 20-year sentence cap. See Brown v. Doe, 2 F.3d 1236, 1246 (2d Cir. 1993)(an accused entitled to reasonable professional assistance during the plea bargaining stage). The record provides the following explanation for defense counsel’s action in this record:
Appellant’s final brief also implies that he only withdrew his guilty pleas because he was compelled to do so by the ineffective advice of his civilian defense counsel. As noted above, defense counsel did not provide ineffective assistance of counsel on this matter. In addition, appellant was a 41-year-old Master Sergeant with 21 years of military experience. In his own affidavit, he admits the ultimate decision was his. He stated, "When the judge said this might be a defense, and Mr. Bernstein explained what the judge said about being able to accept my plea and the possibility that I may have had a defense, I agreed to go along with his recommendation to withdraw my guilty pleas. Even though I had been in pretrial confinement since 4 June 1995, I thought it was important that my counsel investigate whether I had a defense before I went through with the pleas of guilty." Appellant’s own assessment of his self-interest cannot be ignored.
Appellant’s final complaint, again implied, is that the withdrawal of his guilty pleas unexpectedly resulted in the canceling of his then-existing pretrial agreement with the convening authority. However, paragraph 8 of this January 5, 1996, agreement states: "I understand that I may withdraw my pleas of guilty at anytime before, but not after sentence is announced. I also understand that if I withdraw my pleas of guilty, this agreement is canceled and of no effect." Moreover, prior to withdrawal of his guilty pleas, he expressly reaffirmed to the military judge that this was his understanding of how the pretrial agreement operated. Finally, he did not object to the canceling of the earlier pretrial agreement and the substitution of a new agreement with a new cap of 30 years. There is no suggestion of surprise or involuntariness in this record.
The second issue granted review in this case is raised under the Ex Post Facto Clause of the Constitution. All of appellant’s offenses were found to have occurred in 1995. Appellate defense counsels’ brief asserts:
The third question before us is whether the military judge erred in refusing to recuse himself in appellant’s case. Seegenerally RCM 902. Appellant points to his recusal motion at trial and argues that the military judge abused his discretion in refusing to grant it. He asserts that the military judge had previously heard appellant’s responses to a providence inquiry on the charged offenses; he had reviewed a stipulation of fact concerning them; and he had entered findings of guilty pursuant to appellant’s initial pleas of guilty. He further notes that the trial judge had heard a defense mitigation witness and compelled appellant to withdraw his earlier pleas of guilty on this basis. Finally, he states, "[t]he military judge apparently had several conversations with several people" "near members" to the effect that the prosecutor should be able to argue for a life’s sentence in appellant’s case "with a straight face."
We initially note that the military judge was not per se disqualified from sitting in this case as a result of his prior involvement in appellant’s rejected pleas of guilty. Then-Judge Cox, writing in United States v. Winter, 35 MJ 93, 95 (CMA 1992), made this point crystal clear:
Furthermore, the military judge’s statements on this record make clear that he had no intractable opinion regarding appellant’s guilt or sentence.
Nevertheless, appellant cites RCM 902(d) and further argues that "a reasonable person who knew the facts of this case would question the appearance of impurity and have doubts as to the military judge’s impartiality." Final Brief at 21. He particularly focuses on allegations that the military judge expressed his opinion prior to or during his court-martial that he deserved a life sentence. We disagree and conclude that the military judge did not abuse his discretion in rejecting this challenge for cause against him. See generally United States v. Sanchez, 37 MJ 426, 427 (CMA 1993); United States v. Elzy, 25 MJ 416 (CMA 1988).
In this regard, we note that the military judge forthrightly confronted the challenge against him in this case and conducted a full hearing on this matter. He subjected himself to voir dire on any matter about which the parties might wish to inquire and eventually offered his own statement concerning his prior knowledge of appellant’s case. He specifically responded to the life-sentence question as follows:
The final question before us is whether appellant was unfairly exposed to a 30-year sentencing cap after the military judge rejected his pleas of guilty to basically the same offenses with a 20-year cap. Appellant generally argues that "principles of fairness and due process compel the Government to abide by a pretrial agreement on which an accused has reasonably relied to his detriment. Shepardson v. Roberts, 14 MJ 354, 358 (CMA 1983)." More specifically, he asserts:
RCM 705(d)(4) permits either an accused or a convening authority to withdraw from a pretrial agreement. The power of a convening authority to withdraw is more limited than that of an accused.3 RCM 705(d)(4)(B) states:
Here, appellant elected not to take advantage of the trial judge’s offer to reopen the providence inquiry to address the "bug spray" defense issue. Instead, after consultation with counsel, he chose to withdraw his pleas and, by that act, cancel his pretrial agreement with its 20-year sentence cap. Finally, as noted above, the consequences of withdrawing his guilty pleas were expressly stated in the original agreement, explained to him by the judge as part of the initial providency inquiry, and explained to him again during the withdrawal inquiry.
We perceive no fundamental unfairness or inequity in these circumstances which would reasonably justify relieving appellant of his own voluntary decisions. See generally Santobello v. New York, 404 U.S. 257 (1971). A criminal accused may face many difficult choices in the criminal justice system, but that does not render that process constitutionally unfair. See Bordenkircher v. Hayes, 434 U.S. 357 (1978). Moreover, any claim of unfair prejudice is severely undermined by his failure to voice any concern at trial. See RCM 906, Manual, supra. Finally, appellant has not shown that he relied to his detriment on the first agreement, and he received a substantial 7-year sentence reduction under the second agreement. See Shepardson v. Roberts, supra at 358.
The decision of the United States Air Force Court of Criminal Appeals is affirmed as to result only. Execution of the forfeitures and reduction prior to the date of the convening authority’s action is hereby declared to be without legal effect. Any forfeitures collected prior to that date, and any pay and allowances withheld because of the premature reduction in grade, will be restored. The record of trial is returned to the Judge Advocate General of the Air Force for appropriate action.
Chief Judge COX, Judge GIERKE, and Senior Judge EVERETT concur.
1 Judge Sullivan would remand this case to the Court of Criminal Appeals. See United States v. Gorski, 47 MJ 370, 376 (1997)(Sullivan, J., concurring in part and in the result); see also United States v. Roseboro, No. 98-0439, __ MJ __ (Daily Journal July 27, 1998) (Sullivan, J., dissenting); United States v. Keeney, No. 97-0596, __ MJ __ (Daily Journal April 15, 1998).
2See n.1, supra.
CRAWFORD, Judge (dissenting in part and concurring
Generally, the prosecution may withdraw from a pretrial agreement at any time prior to the entry of the guilty plea, unless there has been "detrimental reliance," such as giving up one’s Fifth Amendment right. Shepardson v. Roberts, 14 MJ 354, 358 (CMA 1983). I agree with the majority to affirm the decision of the United States Air Force Court of Criminal Appeals. However, I reach this conclusion on the basis of appellant’s conduct during the 5-month continuance, and not upon detrimental reliance. During that period, the defense consulted a number of experts throughout the United States in determining whether a defense was available. Based on this consultation, they consciously concluded there was no defense in this case.
The bench and bar should not read too much into the majority opinion, since the "voice any concern" (read failure-to-object) language, ___ MJ (24), seems to suggest a proposition rejected in Mabry v. Johnson, 467 U.S. 504 (1984). The Supreme Court in Mabry unanimously rejected the proposition that "‘fairness’ preclude[s] the prosecution’s withdrawal of a plea proposal once accepted by [a] respondent." Id. at 506.