2022 (October Term)
United States v. Day, 83 M.J. 53 (an accused may intentionally relinquish a waivable objection in a plea agreement by including a clause waiving all waivable motions).
2020 (October Term)
United States v. Chandler, 80 M.J. 425 (RCM 705(a) authorizes an accused and the convening authority to enter into a pretrial agreement, and the parties may condition the pretrial agreement on a promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or a confessional stipulation will be entered).
(in this case, where trial counsel inserted into the PTA the provision that appellant was required to enter into a reasonable stipulation of fact, the SJA, as legal advisor to the convening authority, was empowered to advise the convening authority regarding whether this condition of the PTA was met; in this regard, it was not inappropriate for the SJA to directly call and inform defense counsel that he would advise the convening authority not to accept the PTA unless appellant agreed to stipulate to the multiple uses of cocaine and marijuana reflected in his confession, especially where trial counsel and the defense paralegal were part of this conversation and trial and defense counsel still had the ability to decide how to handle the stipulation at trial and in presentencing proceedings; the SJA’s pretrial actions did not transform him into a trial counsel, and thus, did not disqualify him under Article 6(c) from advising the convening authority on post-trial matters).
(where a reasonable stipulation of fact is an explicit term of a PTA between the accused and the convening authority, the content of that stipulation directly concerns the SJA in his role as legal advisor to the convening authority, and convening authorities acting upon the advice of their SJAs may very well determine a pretrial agreement should not be entered into because the stipulation offered by the accused is not reasonable).
United States v. Stanton, 80 M.J. 415 (to form a pretrial agreement under RCM 705, the accused must submit a written offer to the convening authority; this written offer must propose a bilateral agreement in which the defense and the government each make promises to the other; on one side, the proposed agreement may include a promise by the accused to plead guilty to, or to enter a confessional stipulation as to one or more charges and specifications, and to fulfill such additional terms or conditions which may be included in the agreement and which are not prohibited under this rule; on the other side, the proposed agreement may include a promise by the convening authority to do one or more of the following: (a) refer the charges to a certain type of court-martial; (b) refer a capital offense as noncapital; (c) withdraw one or more charges or specifications from the court-martial; (d) have the trial counsel present no evidence as to one or more specifications or portions thereof; and (e) take specified action on the sentence adjudged by the court-martial; in addition, in a pretrial agreement, all the terms, conditions, and promises between the parties shall be written, although a written agreement may contain some implied terms, and may incorporate other terms by reference).
(in this case, the convening authority’s approval of appellant’s request for a discharge in lieu of trial by court-martial was not a pretrial agreement within the meaning of RCM 705 where the convening authority did not expressly or implicitly promise to vacate the finding of guilt of larceny that had been affirmed by the CCA and dismiss the charge and specification; RCM 705 imposes specific parameters on pretrial agreements, and appellant’s request for a discharge in lieu of trial by court-martial and the convening authority’s approval of that request did not fit within these parameters; appellant’s request did not propose an agreement in which appellant promised to plead guilty, make a confession, or fulfill any other term, and in which the convening authority would make any of the authorized kinds of promises; nothing in appellant’s written request for a discharge or the convening authority’s written approval of the request indicated that the convening authority would vacate or set aside appellant’s affirmed larceny conviction; to find such a provision not in the text of these documents, but instead based on inferences about what the parties understood the words “in lieu of” to mean, would contradict the writing requirement of RCM 705(d)(2)).
(in addition to the conclusion in this case that appellant and the convening authority did not form a pretrial agreement within the meaning of RCM 705, they also did not formed some other type of agreement that the CAAF might enforce; when appellant requested a discharge “in lieu of trial by court-martial” and the convening authority approved that request, the “trial” to be avoided was the resentencing hearing, not the entire court-martial; a resentencing hearing is a trial in the sense that it is a formal judicial examination of evidence and determination of legal claims in an adversary proceeding; the convening authority logically could approve an administrative discharge “in lieu of” a resentencing hearing because the resentencing hearing had not yet occurred; and that is apparently what the convening authority intended, as evidenced by the civilian defense counsel’s admission that he knew the convening authority was not going to disturb the findings; it is difficult to see how the convening authority could approve an administrative discharge in lieu of the trial on the merits of the larceny specification because that part of the court-martial had already occurred, the court-martial had found appellant guilty, the convening authority had approved the finding, and the CCA had affirmed the finding; appellant received what he requested: his sentence was abated, which was the appropriate outcome for a discharge in lieu of a re-sentencing hearing).
2012 (September Term)
United States v. Riley, 72 M.J. 115 (it is the military judge’s responsibility to police the terms of pretrial agreements to insure compliance with statutory and decisional law as well as adherence to basic notions of fundamental fairness).
2011 (September Term)
United States v. Ballan, 71 M.J. 28 (where the convening authority refers one offense to court-martial on the charge sheet, but enters into a pretrial agreement whereby he agrees to accept a plea of guilty from appellant to a different charge that is also not an LIO of the original charge, a court-martial has jurisdiction over the latter offense because implicit in the convening authority’s entry into a pretrial agreement was his personal decision that the charge be referred to court-martial; the convening authority’s entry into the pretrial agreement was the functional equivalent of a referral order).
2010 (September Term)
United
States v. Soto, 69 M.J. 304 (as part and parcel
of the providence of an accused’s guilty plea, the military judge shall
inquire
to ensure that the accused understands the pretrial agreement, and that
the
parties agree to the terms of the agreement; this is necessary to
ensure that
an accused is making a fully informed decision as to whether or not to
plead
guilty).
(it
is the military
judge’s responsibility to police the terms of pretrial agreements to
insure
compliance with statutory and decisional law as well as adherence to
basic
notions of fundamental fairness; it is for this reason that the RCM
910(f)(3)
requires that the military judge shall require disclosure of the entire
agreement excepting the quantum limitations before accepting a plea of
guilty;
further, as required by RCM 910(h)(3), after the sentence is announced,
the
military judge shall both inquire into any parts of the PTA not
previously
examined and ensure that an accused understands all material terms; an
inquiry
that falls short of these requirements and fails to ensure the accused
understands the terms of the agreement is error).
(military judges need to be
ever vigilant in
fulfilling their responsibility to scrutinize pretrial agreement
provisions to
ensure that they are consistent with statutory and decisional rules,
and basic notions of fundamental fairness).
(a fundamental principle on
pretrial
agreements is that the agreement cannot transform the trial into an
empty
ritual; judicial scrutiny of PTA provisions at the trial level helps to
ensure
that this principle is fulfilled).
(not every procedural failure
in reviewing a
pretrial agreement results in an improvident plea).
(in this case, a provision in
the pretrial
agreement required that appellant request a BCD during the sentencing
phase of
the court-martial; this provision was placed in the quantum portion of
the PTA,
notwithstanding the fact that it was not a quantum limitation on the
sentence;
the provision was neither disclosed to the military judge prior to his
accepting appellant’s plea of guilty (although the military judge
specifically
asked whether there were any conditions in the quantum portion), nor
was it discussed
with appellant before, during, or after the providence inquiry;
examining the
quantum portion of the agreement after the announcement of sentence,
the
military judge did not acknowledge the term requiring appellant to
request a
punitive discharge during sentencing, let alone discuss it with
appellant; where
the provision in question is one that goes directly to the sentence
requested
by an accused and imposed by the military judge, the provision is
tucked away
in the quantum portion of the PTA (although it is not a sentence
limitation),
and the parties fail to disclose the provision in response to a direct
question
by the military judge, the integrity of the guilty plea process itself
is
undermined; under the facts and circumstances of this case, it appears
that the
military judge was unaware that appellant’s request for a BCD was
required by
the PTA; thus, it cannot be said that the request did not influence the
sentence imposed; under the particular facts of this case, there is a
substantial basis in law to question the providence of appellant’s plea
and the
plea inquiry was improvident).
United
States v. Smead, 68 M.J. 44 (a PTA in the
military justice system
establishes a constitutional contract between the accused and the
convening
authority; in a typical PTA, the accused foregoes certain
constitutional rights
in exchange for a reduction in sentence or other benefit; as a result,
when
interpreting PTAs, contract principles are outweighed by the
Constitution’s Due
Process Clause protections for an accused; in a criminal context, the
government
is bound to keep its constitutional promises).
(at trial, the military judge
must ensure that
the accused understands the PTA, the parties agree to the terms of the
agreement, the agreement conforms to the requirements of RCM 705, and
the
accused has freely and voluntarily entered into the agreement and
waived
constitutional rights).
(appellant bears the burden of
establishing
that a PTA term is material and that the circumstances establish
governmental
noncompliance; in the event of noncompliance with a material term, an
appellate
court considers whether the error is susceptible to remedy in the form
of
specific performance or in the form of alternative relief agreeable to
appellant;
if such a remedy does not cure the defect in a material term, the plea
must be
withdrawn and the findings and sentence set aside).
(under RCM 705(a), an accused
and the convening
authority may enter into a PTA in accordance with the provisions of RCM
705,
subject to such limitations as the Secretary concerned may prescribe;
RCM
705(b) provides that a PTA may include a variety of promises by the
accused and
the convening authority; the phrase “may include” reflects that the
President
has not limited the nature of agreements under the rule to the items
listed in
RCM 705(b); among the promises that may be made by an accused, the rule
includes: (1) a promise to plead guilty to one or more charges and
specifications, and (2) a promise to fulfill such additional terms or
conditions which may be included in the agreement and which are not
prohibited
under the rule; among the promises that may be made by a convening
authority,
the rule includes: (1) a promise to withdraw one or more charges or
specifications from the court-martial; (2) a promise to have the trial
counsel
present no evidence as to one or more specifications or portions
thereof; and
(3) a promise to take specified action on the sentence adjudged by the
court-martial; under RCM 705(c)(1), a term or condition shall not be
enforced:
(1) if the accused did not freely and voluntarily agree to it; and (2)
if it
deprives the accused of the right to due process or certain other
expressly
enumerated rights; RCM 705(c)(2) adds that the prohibition on
deprivation of
certain rights in subsection (c)(1) does not preclude a voluntary
agreement to:
provide a stipulation of fact; testify in a subsequent proceeding;
provide
restitution; conform conduct to probation conditions through the period
of any
suspended sentence; or waive procedural requirements with respect to an
investigation under Article 32, the composition of the court-martial,
or the
personal appearance of sentencing witnesses; the limitations of RCM
705(c)(1)
are the only express limitations on terms of PTAs under the rule; other
limitations may be provided under departmental regulations).
(RCM 705, which governs PTAs,
is not a rule of
exclusion; RCM 705 provides broad authority as to the terms that the
parties
“may include” in an agreement; dismissal with prejudice as a term of a
PTA does
not come within the few express prohibitions in the rule).
(an agreement in a PTA for a
convening
authority to withdraw and dismiss certain charges with prejudice upon
announcement of sentence is not a legal nullity; the power of a
convening
authority to dismiss withdrawn charges with prejudice is consistent
with the
powers granted to convening authorities by Congress and the President
in the
final disposition of charges; for example, a convening authority may:
(1)
direct action resulting in a finding of not guilty by entering into a
PTA
providing that the prosecution will present no evidence on a charge
under RCM
705(b)(2)(D); (2) grant transactional immunity under RCM 704 that
precludes
trial by court-martial of an immunized offense; and (3) disapprove any
finding
by a court-martial and substitute either a lesser included offense or a
finding
of not guilty under Article 60(c)(3), UCMJ).
(a reviewing court may cure a
government breach
of a PTA in several ways: requiring specific performance of the initial
PTA,
providing the appellant with alternative relief, providing an adequate
remedy
to cure the breach, or allowing withdrawal of the pleas).
(RCM 705(d)(4)(B) permits a
convening authority
to withdraw from a PTA if findings are set aside because a plea of
guilty
entered pursuant to the agreement is held improvident on appellate
review; the
rule establishes a two-part test in which the decision of the appellate
court
must: (1) set aside findings; and (2) do so because the plea was
improvident).
(at a rehearing on findings
and sentence,
convening authority could not revive charges that had been dismissed
with
prejudice upon announcement of sentence at appellant’s first
court-martial
pursuant to a PTA; the remand for a rehearing did not return the
parties to
status quo ante, but was instead based on the government’s failure to
comply
with a PTA term involving the effective date of the reduction in rank).
United
States v. Wiechmann, 67 M.J. 456 (pretrial
agreements implicate
distinctive responsibilities of the convening authority with respect to
court-martial proceedings; in the military justice system,
responsibility for
the function of determining sentencing is shared by the court-martial
and the
convening authority; as an incident of the responsibility for
sentencing, the
convening authority may enter into a pretrial agreement that imposes a
legal
limitation on the scope of the sentence).
(RCM 705, the MCM rule dealing
with pretrial agreements, underscores the vital role of counsel at the
pretrial
stage of the proceedings by providing that government representatives
shall
negotiate with defense counsel unless the accused has waived the right
to
counsel; the rule further provides that a pretrial agreement shall be
signed by
the accused and defense counsel, if any).
United
States v. Gladue, 67 M.J. 311 (in the absence
of an explicit prohibition, a
party may knowingly and voluntarily waive such a nonconstitutional
right in a
pretrial agreement).
(although the President has
prohibited the
waiver of certain fundamental rights in a pretrial agreement, neither
multiplicity nor the unreasonable multiplication of charges is among
them).
(appellant’s pretrial
agreement expressly
waiving any waivable motions waived claims of multiplicity and
unreasonable
multiplication of charges, and extinguished his right to raise these
issues on
appeal).
United
States v. Dean, 67 M.J. 224 (in military
practice, the convening
authority’s rights to withdraw are set out in RCM 705(d)(4)(B); that
rule provides
that a convening authority may withdraw from a pretrial agreement for
the
following reasons: any time before the
accused begins performance of promises contained in the agreement;
failure by
the accused to fulfill any material promise or condition in the
agreement; when
inquiry by the military judge discloses a disagreement as to a material
term in
the agreement; and if the findings are set aside because a plea of
guilty
entered pursuant to the agreement is held improvident on appellate
review).
(in this case, the convening
authority’s right
to withdraw from the pretrial agreement terminated when appellant began
to
perform several of the promises listed in the agreement, including
entering
into a stipulation of fact with the trial counsel, submitting a request
to be
tried by military judge alone, and waiving the personal appearance of
certain
witnesses; the beginning of performance was not limited to entry of a
plea).
(in addition to allowing the
convening
authority to withdraw from a pretrial agreement at any time before the
accused
begins performance, RCM 705(d)(4)(B) also
provides that
the convening authority may withdraw when inquiry by the military judge
discloses
a disagreement as to a material term in the agreement).
(in this case, the parties’
disagreement about
the meaning of the “begin performance” term in the pretrial agreement
was not a
disagreement over a material term in the agreement so as to entitle the
convening authority to withdraw from the agreement under RCM
705(d)(4)(B);
although the military judge held a hearing on the convening authority’s
right
to withdraw before appellant began to perform, at no point during the
hearing
or in his ruling did the military judge address whether the “begin
performance”
term was material to the agreement; the hearing and the military
judge’s ruling
focused on interpretation of the rule itself, which was a legal rather
than a
factual inquiry; the record in the case demonstrated that the parties’
disagreement over the “begin performance” term had nothing to do with
the
government’s decision to withdraw, and the trial counsel confirmed
during the
hearing that the only reason the government withdrew was because
appellant
refused to modify the stipulation of fact to include additional
misconduct;
accordingly, the government could not rely on the component of the rule
concerning
a disagreement over a material term in the agreement to justify the
convening
authority’s withdrawal on appeal).
(in order for
the government, on appeal, to rely on the “disagreement as to a
material term”
component of RCM 705(d)(4)(B) to justify its withdrawal from a pretrial
agreement, the record must reflect either that the government relied on
that
basis at trial or that the military judge made a finding to that
effect).
(the convening authority did
not have the
right to withdraw from the pretrial agreement based on appellant’s
alleged
commission of crimes while under the terms of a pretrial agreement in
violation
of an implied obligation of good faith, where the government chose not
to avail
itself of the opportunity to include a misconduct provision in
appellant’s
pretrial agreement, leaving the convening authority without recourse to
cancel
the pretrial agreement on the grounds of alleged acts of new
misconduct).
(a pretrial agreement does not
carry with it
an implied condition that the government will be bound only if the
accused
behaves well; however, RCM 705(c)(2)(D) allows the government to
include as a
condition of the pretrial agreement an express promise to conform the
accused’s
conduct to certain conditions of probation before action by the
convening
authority).
(the pretrial agreement’s
requirement that the
accused enter into a written stipulation of fact with the trial counsel
as to
the circumstances of the offenses did not require the accused to
include recent
acts of alleged misconduct in the stipulation, so as to permit the
convening
authority to withdraw from the agreement when the accused refused to
modify the
stipulation to include alleged acts of new misconduct; the stipulation
provision in the pretrial agreement made no reference to the facts or
circumstances of any misconduct other than that charged in the
offenses, and
the modification proposed by the government was outside the scope of
the
parties’ agreement; because the pretrial agreement did not include a
misconduct
provision authorized in RCM 705(c)(2)(D), the convening authority could
not
rely on alleged acts of new misconduct to justify its withdrawal).
United
States v. Hunter, 65 M.J. 399 (as long as the
procedural protections set
forth in RCM 1109 are either followed or waived, a convening authority
may
withdraw before action from a PTA when the accused violates conditions
established pursuant to RCM 705(c)(2)(D)).
(when read together, RCM
705(c)(2)(D) and RCM
1109 do permit misconduct that occurred prior to the convening
authority’s
action to be used as the basis for a withdrawal from the confinement
limitation
of a PTA).
(RCM 705(c)(2)(D)’s reference
to RCM 1109
requires that the procedural protections for a suspension and vacation
proceeding under RCM 1109 be extended to withdrawal from sentence
limitations
of a PTA based on allegations of misconduct).
(while RCM 705(c)(2)(D) could
have been
drafted more precisely, the plain import of its reference to RCM 1109
is to
require a convening authority to comply with the RCM 1109 procedural
protections before the benefit of a PTA can be withdrawn).
(in this case, the misconduct
provision of
appellant’s PTA complied with RCM 705, and the convening authority did
not
violate the PTA by withdrawing from a portion of the sentencing
limitation in
light of appellant’s post-trial misconduct where appellant waived the
procedural protections to which he was otherwise entitled under RCM
1109).
(military law imposes an
independent
obligation on the military judge to ensure that the accused understands
what he
gives up because of his plea and the accused’s consent to do so must be
ascertained; the accused must know and understand not only the PTA’s
impact on
the charges and specifications which bear on the plea, but also other
terms of
the agreement, including consequences of future misconduct or waiver of
various
rights; reflecting these concerns, RCM 910(f)(4) requires that where a
plea
agreement exists, the military judge shall inquire to ensure: (A) that
the
accused understands the agreement; and (B) that the parties agree to
the terms
of the agreement; this inquiry is part and parcel of the providence of
an
accused’s plea, and necessary to ensure that an accused is making a
fully
informed decision as to whether or not to plead guilty; an inquiry that
falls
short of these requirements and fails to ensure the accused understands
the
terms of the agreement is error).
(although the military judge
legally erred in
failing to explain the pretrial misconduct provision of the PTA to
appellant
prior to accepting his guilty plea, despite the error, appellant was
not
entitled to relief because he failed to establish the material
prejudice to a
substantial right required under Article 59(a), UCMJ; there is no
evidence that
appellant misunderstood the meaning and effect of the misconduct
provision
within his PTA or that his understanding of it prejudiced his ability
to make a
fully informed decision to plead guilty).
United States v. Resch, 65 M.J. 233 (before a plea of
guilty may be accepted, the military judge is obligated to ensure that
an accused understands the provisions of any pretrial agreement, and to
ensure that the parties agree to the terms set forth in the agreement;
moreover, the military judge must ensure that the accused freely
consents to enter into any stipulation of fact or stipulation of
expected testimony).
United
States v. Tate, 64 M.J. 269 (RCM 705(c), which governs the
scope of pretrial agreements, identifies both permissible and
prohibited terms and conditions; with respect to prohibited terms, RCM
705(c) states that a term or condition in a pretrial agreement shall
not be enforced if it deprives the accused of the right to counsel, the
right to due process, the right to challenge the jurisdiction of the
court-martial, the right to a speedy trial, the right to complete
sentencing proceedings, and the complete and effective exercise of
post-trial and appellate rights).
(RCM 705(c)(1)(B) does not preclude an agreement to waive rights that
may be waived in collateral or unrelated proceedings, such as the right
to waive an administrative discharge board hearing, as provided in
applicable administrative regulations).
(under his pretrial agreement in
which all confinement in excess of 50 years would be suspended,
appellant agreed to waive both mandatory and discretionary
consideration by the Navy Clemency and Parole Board for twenty years
and to decline clemency or parole if offered during that period; under
the Board’s rules, a person serving appellant’s sentence -- confinement
for fifty years -- would be eligible for clemency consideration after
five years, and for parole consideration after ten years; with
respect to the requirement to refuse clemency or parole, the court of
criminal appeals held that those terms were unenforceable as a
violation of public policy, because the convening authority would be
usurping the service secretary’s authority and the President’s
authority to exercise their independent discretion in granting
clemency; that decision is not challenged here; with respect to the
agreement to not request clemency or parole, the CAAF found that RCM 705(c)(1)(B) precluded the
use of pretrial agreement terms inconsistent with the complete and
effective exercise of post-trial and appellate rights and that any
terms and conditions that would deprive appellant of parole and
clemency consideration under generally applicable procedures were
unenforceable under RCM 705(c)(1)(B)).
2006
United States v. Lundy, 63 M.J. 299 (a pretrial
agreement is a contract between the accused and the convening
authority; a court looks to the basic principles of contract law when
interpreting pretrial agreements).
(a pretrial agreement is a
constitutional rather than a commercial contract; typically, an accused
foregoes his constitutional rights, including the privilege against
compulsory self-incrimination, the right to trial by members, and the
right to confront witnesses against him in exchange for a reduction in
sentence or other benefit; as a result, when interpreting pretrial
agreements, contract principles are outweighed by the Constitution’s
Due Process Clause protections for an accused; in a criminal context,
the government is bound to keep its constitutional promises, whereas in
a commercial context it might accept the financial consequences of
breach; thus, financial remedies are not necessarily an appropriate or
available remedy for breach of a plea agreement).
(in this case, the pretrial
agreement term in dispute obligated the convening authority to suspend
and waive all automatic reductions and forfeitures, and pay them to
appellant’s wife to the full extent of the law; because of an Army
regulation, the convening authority failed to suspend the reduction at
the time of his action, and appellant’s wife received payments based on
the rate of pay of an E-1 rather than that of an E-6; only years later,
after a Secretarial waiver of that regulation, did appellant’s wife
receive the monetary benefit of the bargain; the agreement was silent
as to the timing of performance; appellant argued that the timing of
the government’s execution of this term was material to his agreement
and to his decision to plead guilty and that he was entitled to
withdraw his plea as improvident; but appellant failed to meet his
burden of demonstrating that the timing of the payment to his wife of
the difference between the two pay grades with interest was material to
his agreement to plead guilty where the clause “to the full extent of
the law” in the agreement suggested emphasis on the amount of payment
and not necessarily the speed or timing of payment and where the
third-party beneficiary, appellant’s wife, did not complain about the
partial performance until 13 months after the fact; thus, the belated
payment to appellant’s wife was not alternative relief, but constituted
specific performance of the original pretrial agreement).
United States v. Parker, 62 M.J. 459 (an accused and
the convening authority may enter into a pretrial agreement, subject to
RCM 705; under the rule, an accused may agree to plead guilty to one or
more charges and specifications, and the convening authority may agree
to limit, suspend, or mitigate all or portions of the sentence; when
there is a plea agreement, the military judge must ensure that the
accused understands the agreement, that any unclear terms are
clarified, and that all parties agree to the terms of the agreement).
(an accused may withdraw from
a pretrial agreement at any time, subject to the rules governing guilty
pleas and confessional stipulations; after trial, and prior to the
convening authority’s action, the accused may initiate a modification
of the pretrial agreement, so long as the accused has the assistance of
counsel, the modification is the product of a fully informed and
considered decision, and it is not the product of a coercive
atmosphere).
(the convening authority may
withdraw from a pretrial agreement under four specified circumstances:
(1) at any time before the accused begins performance of
promises contained in the agreement; (2) upon the failure by the
accused to fulfill any material promise or condition in the agreement;
(3) when inquiry by the military judge discloses a disagreement as to a
material term in the agreement; and (4) if findings are set aside
because a plea of guilty entered pursuant to the agreement is held
improvident on appellate review).
(in this case, the convening
authority acted within the terms of the pretrial agreement when he
withdrew from it, and appellant is not entitled to enforcement of the
agreement, where the pretrial agreement between appellant and the
convening authority expressly provided that the convening authority
could withdraw from the agreement if appellant’s plea did not remain in
effect for any reason, and the military judge ruled that appellant’s
plea was improvident, a ruling well within the range of his discretion).
2005
United
States v. Williams, 60 MJ 360 (under R.C.M.
705(d)(4)(B), the
convening authority may withdraw from a pretrial agreement: (1) at any
time
before an accused begins performance of his or her promises under the
agreement; (2) upon the failure of an accused to fulfill any material
promise
or condition in the agreement; (3) when inquiry by the military judge
discloses
a disagreement as to a material term in the agreement; or (4) if
findings are
set aside because a guilty plea is deemed improvident on appellate
review).
(a
military
judge and counsel must play a critical role to ensure that the record
reflects
a clear, shared understanding of the terms of any pretrial agreement
between an
accused and the convening authority).
(in
this case,
the parties had an underlying disagreement as to the restitution clause
itself;
under R.C.M. 705(d)(4)(B), the convening authority is authorized to
withdraw
from a pretrial agreement when an inquiry by the military judge
discloses such
a disagreement as to a material term in the agreement).
(a
distinct,
separate provision in a pretrial agreement offering to make restitution
can
provide a significant inducement for a convening authority to accept an
accused’s offer to plead guilty; where the record on appeal
demonstrates that
the accused sought a more favorable pretrial agreement by extending an
offer to
make restitution and reflects the significance attached by the
convening
authority to that offer, there can be little doubt that the restitution
provision was material to the resultant pretrial agreement).
(in
this case,
where the inquiry conducted by the military judge clearly established a
disagreement as to a material term in the agreement, that circumstance
alone
provided a factual and legal basis for the convening authority to
withdraw;
although the military judge’s inquiry did not focus on the disagreement
as to a
material term component of R.C.M. 705(d)(4)(B), his inquiry and the
record
nonetheless demonstrate that as a proper basis for withdrawal under the
rule;
because the withdrawal provisions of R.C.M. 705(d)(4)(B) are
disjunctive, we
need not determine whether there was specific performance or
detrimental
reliance upon the agreement by the accused nor do we need to address
what
remedies might be appropriate in a case involving detrimental reliance).
(we
do not hold
that a convening authority may withdraw from a pretrial agreement by
simply
claiming that a disagreement exists; rather, the President has required
that
the existence of a disagreement and the materiality of the terms at
issue be
ascertained by the military judge through his or her inquiry; that
requirement
reflects the critical role that a military judge plays during a
plea
colloquy in ensuring that the record reflects a clear, shared
understanding by
the parties of the terms of the agreement).
(in
this case,
we reject the accused’s claim that a withdrawal from the pretrial
agreement was
improper because the convening authority did not personally make the
decision
to withdraw; when the SJA recommended to the convening authority that
the
accused’s offer to plead guilty be accepted, he was induced to do so
based on
the accused’s offer to make restitution; following their discussion
about this
case, the SJA believed that the restitution provision was the reason
the
convening authority approved the offer and he left the office with the
clear
understanding that if there were no restitution prior to trial, there
was no
deal; as the SJA knew the circumstances under which the convening
authority
approved the offer, once those circumstances were no longer present,
the trial
counsel who had communicated with the SJA on this matter could effect
the
Government’s withdrawal from the pretrial agreement).
2004
United
States v. Hansen, 59 MJ 410 (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).
(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).
(RCM
910(f)
requires a meaningful inquiry into the provisions of every pretrial
agreement;
in the instant case, where the pretrial agreement included a provision
for
appellant to waive motions for sentence credit based on Article 13 and
restriction tantamount to confinement and the military judge failed to
inquire
into that provision with appellant, that failure was error).
(even
though the
military judge’s failure to inquire into the Article 13 and restriction
tantamount to confinement waiver provision of appellant’s pretrial
agreement
was error, appellant is not entitled to relief where he neither averred
nor
demonstrated any material prejudice to a substantial right resulting
from this
error as is required under Article 59(a), UCMJ).
United
States v. Lundy, 60 MJ 52 (where pretrial agreement
called for
appellant’s wife to receive waived forfeitures, but the payment of
forfeitures
was made to appellant rather than his wife, as such error rested with
the
government, and such evidence as exists in the record indicates that
appellant
took steps to ensure that payments went to his wife’s bank account, we
conclude
that the record does not establish that appellant acted in a manner so
inconsistent with the pretrial agreement that the government would be
relieved
of its responsibilities under the agreement).
(when the government does not fulfill a material provision in a
pretrial
agreement, remedial action is required in the form of specific
performance,
withdrawal of the plea, or alternative relief; however, an appellate
court
cannot impose alternative relief on an unwilling appellant).
(where the convening authority breached a material provision of a
pretrial
agreement by paying waived forfeitures to appellant’s wife at the E-1
rate,
instead of at the E-6 rate, as the result of the convening authority’s
failure
to seek a waiver or exception to an existing Army regulation to suspend
the
reduction, remedial action was necessary, notwithstanding that
appellant’s
family received dependent-abuse compensation).
2003
United
States v. Edwards, 58 MJ 49 (any provisions of a
pretrial
agreement that inhibit the providence inquiry or inquiry into the
pretrial
agreement would not be appropriate).
(to the extent that a term in a pretrial agreement violates public
policy,
it will be stricken from the pretrial agreement and not enforced; under
those
circumstances, public policy prohibits the accused from waiving the
underlying
right or privilege as part of the pretrial agreement; in turn, if the
provision
is not contrary to public policy or R.C.M. 705, an accused may waive
the
underlying right if that waiver is knowingly and voluntarily executed).
("A term or condition in a pretrial agreement shall not be enforced
if
it deprives the accused of ... the right to complete sentencing
proceedings.") does not prohibit an accused from waiving his right to
notify the court of the circumstances surrounding a Government
interrogation of
him conducted without notice to his defense counsel).
(R.C.M. 705 clearly provides that acceptance of the pretrial
agreement is
solely within the discretion of the convening authority; the convening
authority is neither bound by the initial discussions between the
Government
and the defense counsel nor estopped from changing his position
on the
proposed agreement).
United
States v. Perron, 58 MJ 78 (it is fundamental to a
knowing and
intelligent plea that where an accused pleads guilty in reliance on
promises
made by the Government in a pretrial agreement, the voluntariness of
that plea
depends on the fulfillment of those promises by the Government).
(where there is a mutual misunderstanding regarding a material term
of a
pretrial agreement, resulting in an accused not receiving the benefit
of his
bargain, the accused’s pleas are improvident; remedial action, in the
form of
specific performance, withdrawal of the plea, or alternative relief, is
required).
(when it becomes apparent that a material provision in a pretrial
agreement
is ineffective, appellant’s pleas become involuntary and improvident,
warranting relief).
(when an appellate court substitutes its own remedies in place of
negotiated
plea terms, it steps into the accused’s shoes and is in effect
renegotiating
the accused’s plea agreement and waiving his rights; this an appellate
court
cannot do without the accused’s consent).
(where the accused does not agree that a particular form of relief
rectifies
a failed material term and provides him with the benefit of the
bargain--and
therefore calls into question the voluntariness of the guilty plea—it
is
doubtful that an appellate court could, nevertheless, determine with a
necessary degree of certainty that the accused would have pleaded
guilty had he
been offered the relief he is ultimately being compelled to accept).
(where the failed term in the agreement involves pure economic
concerns,
finding relief of equal value is possible; but where the promised
benefit
relates to non-economic concerns--e.g. the immediate care of a
family--or where
the promise has indeterminable value, determining the benefit of the
bargain
becomes a guessing game, and may result in undervaluing the promised
benefit to
the accused).
(remedies for the failure of a material term in a pretrial agreement
must
ultimately support a conclusion that the plea was voluntary, and
imposing
alternative relief on an unwilling appellant does not do this).
(imposing alternative relief on an unwilling appellant to rectify a
mutual
misunderstanding of a material term in a pretrial agreement violates
the
appellant’s Fifth Amendment right to due process; an appellate court
may
determine that alternatives to specific performance or withdrawal of a
plea
could provide an appellant with the benefit of his or her bargain--and
may
remand the case to the convening authority to determine whether doing
so is
advisable--but it cannot impose such a remedy on an appellant in the
absence of
the appellant’s acceptance of that remedy).
(a pretrial agreement is an agreement between the convening
authority and
the accused; an appellant cannot dictate the terms of a pretrial
agreement to
the convening authority; this is true on review as well as at the
outset; in
other words, if the parties cannot agree on alternative relief, and
specific
performance is not available, the result is to nullify the original
pretrial
agreement, returning the parties to the status quo ante).
2002
United
States v. Smith, 56 MJ 271 (when a plea rests in
any
significant degree on a promise or agreement of the prosecutor, so that
it can
be said to be part of the inducement or consideration, such promise
must be
fulfilled; the accused is entitled to the benefit of any bargain on
which his
guilty plea was premised).
(the military judge must ascertain the understanding of each party
to a
pretrial agreement during the inquiry into the providence of the plea,
and
after imposing sentence, the military judge must address the parties’
understanding of any limitations on the sentence in order to assure
that there
is a mutual agreement).
(if the military judge determines that the accused does not
understand the
material terms of a pretrial agreement, or that the parties disagree as
to such
terms, the military judge shall conform, with the consent of the
Government,
the agreement to the accused's understanding or permit the accused to
withdraw
the plea).
(when the issue is whether the collateral consequences of a
court-martial
constitute a material component of a pretrial agreement, a guilty plea
may be
withdrawn only when the collateral consequences are major and the
appellant's
misunderstanding of the consequences (a) results foreseeably and almost
inexorably from the language of a pretrial agreement; (b) is induced by
the
trial judge's comments during the providence inquiry; or (c) is made
readily
apparent to the judge, who nonetheless fails to correct that
misunderstanding).
(in the event of a misunderstanding as to a material term in a
pretrial
agreement, the remedy is either specific performance of the agreement
or an
opportunity for the accused to withdraw from the plea; the Government
may
provide alternative relief if it will achieve the objective of the
agreement).
(where there has been a mutual misunderstanding as to a material
term, the
convening authority and an accused may enter into a written post-trial
agreement
under which the accused, with the assistance of counsel, makes a
knowing,
voluntary, and intelligent waiver of his right to contest the
providence of his
pleas in exchange for an alternative form of relief).
(where the record demonstrates that all participants in the
proceeding
proceeded on the assumption that appellant’s pay would provide the
basis upon
which the forfeiture protection provisions of the pretrial agreement
would be
implemented, and where in fact appellant was entitled to no pay because
he was
held beyond his term of service, there was a misunderstanding as to a
material
term in a pretrial agreement).
(remedial action is required where the circumstances reflect pleas
that rest
in a significant degree on an agreement with the Government that was a
material
part of the consideration, and the Government has not fulfilled its
part of the
agreement).
(assuming that the bargained-for benefit of a pretrial agreement is
outside
the authority of the Government to provide, it is necessary to
determine
whether some appropriate alternative relief is available as an adequate
means
of providing appellant with the benefit of his bargain; if such
appropriate
alternative relief is available, the Court of Criminal Appeals may
affirm the
findings and so much of the sentence that will reflect this relief; if
not, in
the absence of appellant having received his full consideration in
return for
his pleas of guilty, the court must set aside the findings and sentence
and
authorize a rehearing).
United
States v. Spaustat, 57 MJ 256 (interpretation of a
pretrial agreement is a question of law, reviewed de novo).
United
States v. Terlep, 57 MJ 344 (the entrance of the
Government and appellant into a plea bargain for a lesser charge than
rape does
not change the facts as to what happened to the victim that night in
her view;
the search for truth in the courtroom need not be dispensed with simply
because
a plea agreement exists outside it; absent an express provision in the
pretrial
agreement or some applicable rule of evidence or procedure barring such
evidence, this important victim impact evidence was properly admitted).
2001
United
States v. Williams, 55 MJ 302 (if an accused does not receive
the
benefit of the bargain reflected in the negotiated pretrial agreement,
the
pleas will be treated as improvident, the findings will be set aside,
and the
accused will be subject to retrial).
(where appellant sought in his pretrial agreement to protect his
family
against potential forfeitures, he gained the benefit of that protection
in that
no forfeitures were adjudged and there was no evidence that automatic
forfeitures were collected; there were no representations as to
entitlement to
pay beyond his term of service which would serve to improvidence the
plea).
2000
United
States v. Clark, 53 MJ 280 (insofar as a term
in a pretrial agreement could be
interpreted to require that polygraph evidence be placed in a
stipulation of
fact, the appropriate remedy would be to not enforce the impermissible
terms
and to strike the reference to the polygraph from the stipulation (see
Military Rule of Evidence 707)).
United
States v. Williams, 53 MJ 293 (an accused is
entitled to
the benefit of the bargain on which a guilty plea is based; where he
does not
receive the benefit of his bargain, his pleas may not be provident).
United
States v. Hardcastle, 53 MJ 299 (an accused is
entitled to
the benefit of the bargain on which a guilty plea is based; where he
does not
receive the benefit of his bargain, his pleas may not be provident).
1999
United
States v. Acevedo,
50 MJ 169 (interpretation of a pretrial agreement is a question
of law
to be reviewed de novo, generally applying basic principles of
contract
law except, however, where those principles are outweighed by the
Constitution’s Due Process Clause protections for an accused).
(where terms of pretrial agreement are unambiguous, intent of the
parties is
discerned from the four corners of the document; when the terms are
ambiguous,
extrinsic evidence is admissible to determine the meaning of an
ambiguous
term).
(provision of pretrial agreement, providing that punitive discharge
could be
approved as adjudged and further providing that a dishonorable
discharge would
be suspended, did not require suspension of adjudged/approved
bad-conduct
discharge, and there was no support on the record for appellant’s claim
that
agreement was ambiguous).
(where judge’s interpretation of a pretrial agreement does not
comport with
that of the accused, defense counsel has a duty to reveal that
discrepancy in
open court).
(pretrial agreement providing that both a suspended dishonorable
discharge
and unsuspended bad-conduct discharge were permissible punishments did
not
create situation in which one discharge would be considered less
serious and
thus preclude approval of the other).
United
States v. McLaughlin, 50 MJ 217 (impermissible pretrial
agreement terms should be declared unenforceable by military judge
while
upholding the remaining agreement; RCM 705(c)(1)(B))
(appellant is not entitled to relief on appeal from impermissible
term of
pretrial agreement waiving speedy trial issue absent prima facie
showing
or colorable claim of entitlement to relief, such as a showing of
prejudice,
demand for speedy trial, or lack of due diligence).
United
States v. Gilbert, 50 MJ 176 (where terms of pretrial
agreement
were unambiguous, and plain language permitted approval of unsuspended
bad-conduct discharge, clause requiring suspension of approved
dishonorable
discharge did not compel convening authority to suspend bad-conduct
discharge).
(pretrial agreement providing that both a suspended dishonorable
discharge
and unsuspended bad-conduct discharge were permissible punishments did
not
create situation in which one discharge would be considered less
serious and
thus preclude approval of the other).
United
States v. Mitchell, 50 MJ 79 (where appellant does not
receive
the benefit of a bargained-for pretrial agreement, his pleas will be
treated as
improvident).
United
States v. Davis, 50 MJ 426 (a fundamental principle
underlying
jurisprudence on pretrial agreements is that the agreement cannot
transform the
trial into an empty ritual; this principle and numerous court decisions
have
been incorporated into RCM 705(c)(1)(B) prohibiting enforcement of
pretrial
agreement terms or conditions which deprive an accused of certain
enumerated
rights).
United
States v. Sherman, 51 MJ 73 (where post-trial
submissions from
appellant, defense counsel, and trial counsel raise factual dispute
about (1)
whether there was a sub rosa agreement not to raise motions
concerning
unlawful command influence and illegal pretrial confinement, (2)
whether
appellant gave untruthful answers to trial judge, (3) whether defense
counsel
knew that appellant’s answers were untruthful, and (4) whether other
matters
suggesting unlawful command influence were correct, there were too many
unresolved questions in the record for the court to affirm; case
remanded for a
fact-finding hearing on specified issues).
United
States v. McFadyen, 51 MJ 289 (provision of pretrial
agreement
waiving right to present a motion for additional sentence credit
because of
unlawful pretrial punishment is not prohibited by RCM 705(c)(1)(B) and
is not
so sufficiently different from other rights which may be waived
pursuant to a
pretrial agreement as to warrant determination that it cannot be
waived).
(for all cases tried 90 days after August 16, 1999, where a pretrial
agreement contains an Article 13, UCMJ, waiver, the military 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).
United
States v. Pilkington, 51 MJ 415 (after arms-length
negotiations,
a convening authority may approve post-trial modifications to a
pretrial
agreement where the accused: (1) was operating of his/her own
free will;
(2) has not been stripped of substantial rights; (3) has not been
coerced into
making the post-trial agreement; and (4) has not otherwise been
deprived of
his/her due process rights).
United
States v. Mitchell, 51 MJ 490 (a probationer who cannot
comply
with a pretrial agreement through his own fault is not permitted to use
indigence to excuse his failure to comply with the agreement; good
faith
remains the linchpin of the analysis).
(the Due Process Clause does not protect an accused who offers to
make full
restitution, knowing full well that he cannot; nor does it protect an
accused
who fails to take timely and reasonable steps to safeguard his assets
so that
he can make restitution as promised).
United
States v. Villareal, 52 MJ 27 (even though appellant was
placed
in a different position by the convening authority’s withdrawal from a
pretrial
agreement, this is not the type of legal prejudice that would entitle
appellant
to relief).
(an accused does not have a constitutional right to plead guilty,
and the
discretion to plea bargain is a policy and leadership decision;
however, under
certain circumstances, when an accused has relied upon a pretrial
agreement and
performed some affirmative act or omission equating to detrimental
reliance,
specific performance of that pretrial agreement will be ordered).
(there was no detrimental reliance on pretrial agreement such as
would
justify ordering specific performance of that agreement where appellant
knew
the convening authority withdrew form the agreement before appellant
had the
opportunity to rely on the agreement in any manner that would legally
prejudice
his right to a fair trial).
United
States v. Jones, 52 MJ 60 (the requirements of RCM 705
that all
terms, conditions, and promises of a pretrial agreement be in writing
are
primarily designed to preclude misunderstandings about the terms of an
agreement and to prohibit sub rosa agreements; open plea
bargaining is
important to ensure proper confrontation and cross-examination).
United
States v. Rock, 52 MJ 154 (credits against confinement
awarded
by a military judge apply against the adjudged sentence unless the
terms of a
pretrial agreement dictate otherwise; this rule applies whether or not
the
adjudged period of confinement is less than or exceeds that provided
for in a
pretrial agreement).
(where portions of a sentence to confinement have already been
served,
either actually [pretrial confinement] or constructively [restraint
tantamount
to confinement], the resultant credit for confinement served must be
applied to
actual confinement to be served, whether that be established by the
adjudged
sentence or by the limitations of a pretrial agreement; credit for
pretrial
confinement, or its equivalent, cannot be bargained away in arriving at
a
sentence limitation).