UNITED STATES, Appellee
Jamie L. HANSEN, Private First Class
Crim. App. No. 200100086
delivered the opinion of the Court,
in which GIERKE, EFFRON and ERDMANN, JJ., joined.
CRAWFORD, C.J., filed a dissenting opinion.
For Appellant: Captain E. V. Tipon, USMC (argued).
For Appellee: Captain Wilbur Lee, USMC (argued); Commander Robert P. Taishoff, JAGC, USN (on brief); Colonel R. M. Favors, USMC, and Major Patricio A. Tafoya, USMC.
Military Judge: R. H. Kohlmann
This opinion is subject to editorial correction before publication.
Judge BAKER delivered the opinion of the Court.
Court granted review of the following issue:
WHETHER APPELLANT'S PLEAS WERE IMPROVIDENT AND INVOLUNTARY WHERE THE MILITARY JUDGE FAILED TO PROPERLY INSTRUCT APPELLANT ON THE EFFECT OF A PLEA OF GUILTY TO HIS SUBSTANTIAL RIGHTS, SPECIFICALLY THOSE GUARANTEED BY THE U.S. CONSTITUTION, AS REQUIRED BY UNITED STATES V. CARE, 18 C.M.A. 535, 40 C.M.R. 247 (1969).
For the reasons set forth below, we conclude that the military judge did not adequately advise Appellant of his constitutional right to confrontation and right against self-incrimination or obtain from Appellant an intelligent and voluntary waiver of those rights. As a result, we reverse.
accused entering a guilty plea waives several of his constitutional
rights. United States v. Care, 18
C.M.A. 535, 538-39, 40 C.M.R. 247, 250-51 (1969)(quoting
United States v. McCarthy, 394
These rights are also
fundamental to the military justice system,
although they apply in the context of the UCMJ somewhat differently
United States v. Wiesen, 57 M.J.
(C.A.A.F. 2002); United States v. Benedict, 55 M.J. 451, 456
United States v. Roland, 50 M.J. 66, 68 (C.A.A.F.
although a military defendant does not enjoy a Sixth Amendment right to
by jury, he or she does have a right to members who are fair and
impartial). As a result, if there is to
be a waiver of these rights, it "must be an intentional relinquishment
abandonment of a known right or privilege."
Johnson v. Zerbst,
Appellant argues that his plea is improvident because the record fails to demonstrate that he was informed of his constitutional right to a trial of the facts by court-martial, his right to be confronted by and to cross-examine any witnesses, and his right against self-incrimination. See U.S. Const. amend. V, VI. As importantly, Appellant argues the record fails to demonstrate that Appellant knowingly and intelligently waived these rights.
government acknowledges that the military judge was not express in his
of Appellant's constitutional rights and waiver. However,
a particular incantation is not
required. See United States v.
Burton, 21 C.M.A. 112, 115, 44 C.M.R. 166, 169 (1971)(overruled
The government posits that this case is at the crossroads between those judicial circuits that apply a rule of essential substance to determine whether an accused has waived his constitutional rights, and those circuits, primarily the Second Circuit, that apply a strict rule of form, requiring adherence to specific terminology.1 We disagree with this paradigm.
although this Court recognizes that the military judge should advise
accused of the rights he is waiving by pleading guilty, we have
declined to adopt a "per se rule that a failure to fully advise an
mandates reversal." Harris, 26 M.J. at 732.
Instead, the issue is not whether there is 'exemplary compliance
what we had in mind in Care' but rather whether 'the
combination of all
the circumstances' leads the court to conclude that the accused's
plea was informed and voluntary." Harris,
26 M.J. at 732 (quoting
Second, the question in this case is not whether the military judge used the correct constitutional formula, but whether the judge's inquiry crossed the threshold of necessary substantive inquiry such that we can reasonably conclude that Appellant understood his rights and knowingly and intelligently waived those rights.
According to the government, the record shows the military judge alluded to Appellant's constitutional rights on six separate occasions. With respect to Appellant's right to a trial of the facts by court-martial, the military judge informed Appellant "you have the right to be tried by a court-martial composed of members . . . You are also advised that you may request to be tried by military judge alone. If that request is approved, the military judge would determine your guilt or innocence . . . ." With respect to Appellant's right against self-incrimination, the judge advised Appellant "Based on your pleas of guilty alone and without receiving any evidence, this court can find you guilty of the offenses to which you are pleading guilty." The judge also instructed Appellant that "By elements, I mean the facts that the government would have to prove beyond a reasonable doubt before you could be found guilty if you pleaded not guilty." With respect to Appellant's right to confront and cross-examine witnesses, the government invites our attention to that portion of the record where the parties were litigating whether a certain defense witness should be allowed to testify on sentencing. Defense counsel argued that "the military accused has the right to have the testimony of a witness on sentencing as well as on the merits when the testimony is material to an issue before the court." The military judge stated, "If after presentation of the government's evidence, the defense feels that the door has been opened by the government to such rebuttal, the defense should renew its motion at [that] time."
Finally, as noted above, at the close of his Care inquiry the judge advised Appellant on the record that he had "knowingly, intelligently, and consciously waived [his] rights against self[-]incrimination, to a trial of the facts by this court-martial, and to confront the witnesses against [him]." This was done without response or objection from the defense counsel or the accused.
on this record, we believe Appellant was advised of, understood, and
waived his right to a trial of the facts.
However, we are not prepared to conclude the same with respect
Appellant's right against self-incrimination or his right to be
and cross-examine witnesses. The
"combination of all the circumstances" surrounding the judge's
regarding those particular rights falls short of demonstrating that
guilty plea and waiver of the rights was informed and voluntary within
meaning of McCarthy, Boykin, and Care. See
Pretrial agreements are mortar and brick in the military justice system. The knowing and intelligent waiver of constitutional rights is the foundation upon which they rest. This Court does not require incantation of constitutional formulas. However, we do require a record of confidence that an individual accused had his rights explained to him, understood his rights, and knowingly and intelligently waived them. Because the relinquishment of these bedrock constitutional rights is the essence of the plea bargain, we will not presume or imply that a military accused understood them and waived them, absent a demonstrable showing in the record that he did in fact do so.
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy. A rehearing may be ordered.
CRAWFORD, Chief Judge (dissenting):
contrast to Boykin v. Alabama,
395 U.S. 238 (1969), this is not the case of a "silent record," but a
that is replete with evidence demonstrating adequate advice to the
accused. The record on the whole
affirmatively demonstrates the accused understood the constitutional
was waiving and the critical elements of the crime for which he had
pleas of guilty. Trial courts are not
required to follow a formulistic litany but, in essence, must make sure
is a voluntary plea that is understood by the accused.
Clearly, that is true in this case. The
majority of courts have considered this
issue and refused to vacate a plea simply because the record does not
affirmatively show a specific waiver of these three constitutional
rights. James E. Bond, Plea Bargaining
Pleas § 3.8(b) at 3-27 (2d ed. 1982); see also
Court considers the entire record when determining the providence of a
the memorandum of pretrial agreement, Appellant admitted that his plea
was "voluntary," and that he was satisfied with his defense counsel. He also admitted his attorney "fully advised
[him] of the meaning and effect of [his] guilty pleas.
[He] fully underst[oo]d
their meaning and all the related effects and consequences."
As the majority correctly notes, the rights to silence, to confront one's accuser, and to a trial by jury "are central to the American perception of criminal justice" and "fundamental to the military justice system." So central and fundamental, in fact, that it is a leap of logic to conclude that these rights were unknown to this 22-year-old Marine who was represented by competent counsel, who had negotiated and entered into both a pretrial agreement and a detailed stipulation of fact, and who had discussed his crimes, his agreement to testify in other cases, and many of his trial rights on the record before a military judge.
There was substantial compliance with Care, and Rule for Courts-Martial 910. We should follow our superior court and hold that even where there is a failure to make a full inquiry, the failure of the defendant to object constitutes waiver absent plain error. United States v. Vonn, 535 U.S. 55 (2002); cf. United States v. Benitez, 310 F.3d 1221 (9th Cir. 2002), cert. granted __ U.S. __, 124 S. Ct. 921 (2003)(rejecting argument that defendant's failure to object to lack of advising the defendant that the judge was not bound by the agreement constitutes waiver absent plain error).*
On these facts, I can find no material prejudice to any substantial right of Appellant. His plea was informed and voluntary. This Court should no longer invite appellants and counsel to negotiate a bargain, plead guilty, gain the benefit of the bargain, and then have the conviction set aside with no demonstration of prejudice and every indication of waiver.
* The failure to invoke waiver absent plain error invites defense counsels to "plant error." Victor Kelley, 3 National Military Justice Group 6 (Winter 2004) ("I know of no fiduciary loyalty that the defense owes to the military judge. It may well be that the judge incorrectly advises the accused or omits an element of the offense. Should this occur, and should the prosecutor miss it, the defense has an instant appellate issue.").