UNITED STATES, Appellee
v.
Cameron T. FELDER
Private
No. 04-0027
Crim. App.
No. 20021011
Argued
Decided
CRAWFORD,
C.J., delivered the opinion of the Court, in which GIERKE, EFFRON,
BAKER, and
ERDMANN, JJ., joined.
Counsel
For
Appellant: Captain Terri J. Erisman
(argued); Colonel
Robert D. Teetsel, Lieutenant
Colonel Mark Tellitocci and Major
Allyson G. Lambert (on
brief).
For Appellee:
Lieutenant Colonel Randy V. Cargill
(argued); Colonel Lauren B. Leeker
and Lieutenant
Colonel Margaret B. Baines (on brief).
Military
Judge: John J. Carroll III
THIS
OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Chief Judge CRAWFORD delivered the opinion of the Court.
Before a military judge sitting
alone as a special court-martial, Appellant, pursuant to his pleas, was
convicted of two specifications of failing to go to his appointed place
of
duty, absence without leave, disobeying a commissioned officer,
disobeying a
noncommissioned officer, and two specifications of assault, in
violation of
Articles 86, 90, 91, and 128, Uniform Code of Military Justice
[hereinafter
UCMJ], 10 U.S.C. §§ 886, 990, 991, and 928 (2000), respectively. He was sentenced to confinement for five
months and a bad conduct discharge. The
military judge awarded 32 days of credit for Appellant’s pretrial
confinement. In accordance with the
pretrial agreement, the convening authority approved only 135 days of
confinement
and the punitive discharge, and waived the automatic forfeitures,
directing
payment to Appellant’s children. The
Court of Criminal Appeals affirmed the findings and sentence in an
unpublished
opinion.
This Court granted
review of the following issue:
WHETHER THE ARMY COURT
OF CRIMINAL APPEALS ERRED BY
SUMMARILY AFFIRMING
APPELLANT’S CONVICTION WHERE THE
MILITARY JUDGE FAILED
TO DISCUSS ANY OF THE PROVISIONS
OF THE PRETRIAL
AGREEMENT WITH APPELLANT PRIOR TO
ACCEPTING HIS PLEAS,
IN VIOLATION OF THIS COURT’S
HOLDINGS
IN UNITED STATES V. GREEN, 1 M.J. 453 (C.M.A.
1976) AND UNITED
STATES V. KING, 3 M.J. 458 (C.M.A. 1977).
BACKGROUND
Before accepting
Appellant’s guilty plea, the military judge conducted the providence
inquiry
required by United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247
(1969). The judge’s inquiry into
Appellant’s plea agreement did not include an inquiry into Appellant’s
waiver
of motions for relief under Article 13, UCMJ, 10 U.S.C. § 813 (2000).
DISCUSSION
A servicemember’s
decision to plead guilty at court-martial, as well as the plea
agreement
related to that decision, have long been the subject of scrutiny by
courts and
commentators. “Because there are
potential dangers in the abuse of this abbreviated method of disposing
of
charges, a number of safeguards have been included.”
David A. Schleuter,
Military Criminal Justice 372 (5th ed. 1999). This
Court has emphasized the importance of
the providence inquiry as it relates to guilt or innocence, see
Article
45, UCMJ, 10 U.S.C. § 845 (2000); Rule for Court-Martial 910(c)-(e)
[hereinafter R.C.M.]; Care, 18 C.M.A. at 541-42, 40 C.M.R. at
253-54,
and that portion of the inquiry relating to the critical role that a
military
judge and counsel must play to ensure that the record reflects a clear,
shared
understanding of the terms of any pretrial agreement between the
accused and
the convening authority. R.C.M. 910(f);
In the instant case, the military
judge’s inquiry into Appellant’s pretrial agreement, including the
judge’s
failure to assess Appellant’s “Article 13 and restriction tantamount to
confinement” waiver, fell short of that required by R.C.M. 910(f)(4)
and United
States v. McFadyen, 51 M.J. 289
(C.A.A.F.
1999). Although these deficiencies
constitute legal error, for the reasons set forth below, we affirm the
decision
of the Court of Criminal Appeals.
R.C.M. 910(f) is designed to ensure
that an accused knows the terms of the pretrial agreement.
The accused must know and understand not only
the agreement’s impact on the charges and specifications which bear on
the
plea, the limitation on the sentence, but also other terms of the
agreement,
including consequences of future misconduct or waiver of various rights. As to the latter, in McFadyen,
we required that
where a military judge is faced with
a pretrial agreement that contains an Article 13 waiver, the judge
should
inquire into the circumstances of the pretrial confinement and the voluntariness of the waiver, and ensure that the
accused understands
the remedy to which he would be entitled if he made a successful
motion.
51 M.J. at 291.
In his pretrial agreement, Appellant
promised to enter into a stipulation of fact,
request
trial by judge alone, use stipulations in lieu of personal appearance
by
witnesses not located at
In separate inquiries, the military
judge ensured that Appellant’s choice of forum and entry into a
stipulation of
fact were knowing and voluntary, and Appellant has not asserted
otherwise. Appellant offered no
stipulations of expected
testimony and has not averred that he would have done differently had
his
pretrial agreement not contained this provision. The
stipulation of fact was not modified
without Appellant’s consent, Appellant did not attempt to withdraw from
the
agreement, he did not fail to fulfill any material promise contained in
the
agreement, nor has there been any disagreement regarding a material
term of the
agreement. Appellant’s defense counsel
informed the military judge on the record that Appellant had not been
punished
in any way cognizable under Article 13 and did not raise the issue in
his
R.C.M. 1105 matters. In McFadyen, we specifically recognized
waiver of
Article 13 motions as a permissible plea agreement term.
Finally, we note that the convening
authority’s action complies with the agreement.
In sum, there is no evidence or representation before this Court
that
Appellant misunderstood the terms of his agreement, that the operation
of any
term was frustrated, that Appellant’s participation in the agreement
was
anything other than wholly voluntary, or that he was subject to illegal
punishment or restriction tantamount to confinement.
R.C.M. 910(f) requires a meaningful
inquiry into the provisions of every pretrial agreement, and McFadyen, 51 M.J. at 291, requires an
“inquiry into
the circumstances of the pretrial confinement and the voluntariness
of the waiver.” Nevertheless, nothing in
that decision relieves an appellant of his burden under Article 59(a),
UCMJ, 10
U.S.C. § 859(a) (2000), to demonstrate material prejudice to a
substantial
right. Thus, while the military judge’s
failure to inquire into the “Article 13 and restriction tantamount to
confinement” provision of Appellant’s pretrial agreement was error,
Appellant has neither averred nor demonstrated any prejudice resulting
from
this error. See Article 59(a).
CONCLUSION
The decision of the
United States Army Court of Criminal Appeals is affirmed.