v.
Daniel R. PERRON, Boatswain’s Mate
Second Class
U.S. Coast Guard, Appellee
No. 02-0168
Crim. App. No. 1115
United States Court of Appeals for the Armed Forces
Argued October 16, 2002
Decided February 12, 2003
BAKER, J., delivered the opinion of the Court, in which GIERKE, EFFRON, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed a dissenting opinion.
Counsel
For Appellee: Lieutenant Daniel J. Goettle (argued); and Commander Peter J. Ganser.
For Appellant: Commander Jeffrey C. Good (argued).
Military Judge: B. Schroder
This opinion is subject to editorial correction before final publication.
Judge BAKER delivered the opinion of the Court:
Appellant was tried by a special court-martial composed of a military judge alone. In accordance with his pleas, Appellant was convicted of one specification of wrongful possession of a controlled substance and two specifications of wrongful use of a controlled substance, in violation of Article 112a, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 912a (2002). He was sentenced to a bad-conduct discharge, confinement for 90 days, and a reduction to pay grade E-3. Consistent with a pretrial agreement, the convening authority approved the adjudged sentence but suspended all confinement in excess of 60 days for a period of six months.
The Coast Guard Court of Criminal Appeals set aside the convening authority’s
action due to a mutual misunderstanding regarding a material term in the
pretrial agreement.
On November 1, 2001, the Court of Criminal Appeals again reviewed the convening
authority’s action.
This Court granted review on the following issues:
I.
WHERE THERE HAS BEEN A FAILURE OF A MATERIAL TERM IN A PRETRIAL AGREEMENT,
MAY AN APPELLATE COURT FASHION AN ALTERNATIVE REMEDY OF ITS OWN CHOOSING,
CONTRARY TO APPELLANT’S WISHES, OR MUST IT AFFORD AN APPELLANT THE II.
WHETHER THE LOWER COURT ERRED BY FAILING TO FIND THAT APPELLANT’S PLEAS
OF GUILTY PURSUANT TO A PRETRIAL AGREEMENT WERE VOLUNTARY BEYOND A REASONABLE
DOUBT, WHERE THE COURT CONCLUDED THERE HAD BEEN A FAILURE OF A MATERIAL
TERM OF THE AGREEMENT.
We
reverse the Court of Criminal Appeals’ decision. Because we resolve this
case on Issue I, we do not reach the second granted issue.
Background On On Please
consider BM2 Perron’s family in this matter.
The family cannot survive financially without the aid of BM2 Perron.
Granting relief from the pay provisions or immediate release from jail
in order to gain immediate employment are the only options that allow for
the financial relief his family desperately needs.
On 1.
I reviewed your clemency request of 2.
Enclosure (2) provides the response from HRSIC to the request.
Unfortunately, due to SN Perron’s status (involuntary extension due to
pending court-martial), he was in a no-pay status when sentencing occurred
and the entire time he was in jail.
Thus, there were no forfeitures available to forfeit.
As such, it is impossible to achieve the desired result provided for in
Article 58b. I have made every attempt
available and acted as provided for in the Pre-Trial Agreement.
I have waived all forfeitures. As
a result of an administrative distinction, however, the desired result
of having SN Perron’s family receive these waived automatic forfeitures
is impossible.
3.
Further, I have reviewed your clemency request as it relates to the immediate
release of SN Perron. I deny your
sought relief. I will, however,
ensure this request is reviewed again by the SJA and myself once the record
of trial is forwarded for our respective reviews and my final action.
Because
the convening authority’s action did not correct the misunderstanding regarding
the forfeiture provision, Appellant sought relief from the Coast Guard
Court of Criminal Appeals. The Court
of Criminal Appeals found that none of the trial participants, including
the military judge, realized that Appellant would enter a no-pay status
upon confinement because his enlistment expired prior to trial.[3]
Perron I, 53 M.J. at 777.
It also determined that the forfeiture provision of the pretrial agreement
was a material term of the agreement, a conclusion the Government has not
challenged in this Court. On
remand, the convening authority modified the sentence, approving only the
bad-conduct discharge and the reduction to E-3.
Because the revised sentence did not include confinement, the pay center
determined that Appellant was entitled to payment for the time he spent
in confinement, which by that time had been completed.
The pay center therefore paid Appellant $3,184.90, the amount his family
would have received had the forfeiture provision been effective.
Unsatisfied with the convening authority’s action, Appellant again appealed
to the Court of Criminal Appeals for relief.
In his appeal, Appellant continued to argue that his plea was involuntary. Perron
II, 57 M.J. at 598. The basis
of his claim was that the convening authority’s action in disapproving
confinement and allowing for the belated payment of the funds his family
should have received under the pretrial agreement was insufficient to cure
the failed material provision in the pretrial agreement. Despite
Appellant’s continued insistence that the belated payment was not appropriate
alternative relief, the lower court cited United States v. Mitchell,
50 M.J. 79 (C.A.A.F. 1999), and held that it could provide alternative
relief to Appellant, even if doing so was contrary to his wishes. In
his appeal before this Court, he continues to argue that his pleas were
involuntary. Citing
Santobello
v. New York, 404 U.S. 257 (1971), he asserts that where an accused
pleads guilty in reliance on Government promises made in a pretrial agreement,
the plea can only be found to be voluntary if the Government fulfills those
promises. Where the Government fails
to
fulfill those promises, Appellant argues, the proper remedy is either specific
performance, withdrawal of the plea, or another remedy agreeable to the
accused. Although recognizing that
this Court has approved of “appropriate alternative relief,” Appellant
contends that imposing such relief on him against his will violates his
Fifth Amendment right to due process.
I
The issue in this case, therefore, is whether imposing alternative relief
on an appellant against his will, to correct a failure of a material provision
of a pretrial agreement, due to a mutual misunderstanding, violates the
Due Process Clause of the Fifth Amendment.
Courts have long recognized that the decision to plead guilty is a serious
and consequential decision. The Supreme
Court, for instance, has said that “a plea of guilty is more than a confession
which admits that the accused did various acts; it is itself a conviction;
nothing remains but to give judgment and determine punishment.” Boykin
v. Because
of the consequences resulting from guilty pleas, the Supreme Court has
recognized the constitutional necessity of ensuring that such pleas are
entered into voluntarily and knowingly, “with sufficient awareness of the
relevant circumstances and likely consequences.” Brady
v. To
ensure that the requirements of due process are complied with, the federal
civilian system and the military system have created a number of protective
measures to ensure that pleas are entered into voluntarily and knowingly.
In the civilian system, Federal Rule of Criminal Procedure 11 was created
to help judges make “the constitutionally required determination that a
defendant’s guilty plea is truly voluntary.” McCarthy,
394 The
military justice system imposes even stricter standards on military judges
with regards to guilty pleas than those imposed on federal civilian judges. See
United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996) (noting
that Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2002), requires military
judges, unlike civilian judges, to resolve inconsistencies and defenses
during the providence inquiry or “the guilty plea[] must be rejected”).
In
United States v. Care, this Court imposed an affirmative duty
on military judges, during providence inquiries, to conduct a detailed
inquiry into the offenses charged, the accused’s understanding of the elements
of each offense, the accused’s conduct, and the accused’s willingness to
plead guilty. 18 C.M.A. at
541-42. Care’s general
mandate to insure that pleas are voluntary is now contained in Rule for
Courts-Martial 910(d) [hereinafter R.C.M.] which provides:
The military judge
shall not accept a plea of guilty without first, by addressing the accused
personally, determining that the plea is voluntary and not the result of
force or threats or of promises apart from a plea agreement under R.C.M.
705.The military judge shall also
inquire whether the accused’s willingness to plead guilty results from
prior discussions between the convening authority, a representative of
the convening authority, or trial counsel, and the accused or defense counsel.
See
Forester, 48 M.J. at 3 (citing R.C.M. 910(d) for the proposition that
guilty pleas must be knowing and voluntary).
While
these protections address problems that could arise during a providence
inquiry, and indicate a recognition of the overall importance of voluntary
pleas, they do not directly deal with circumstances affecting pleas after
the plea has been accepted;[4]
however, other protections do.
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. See
Santobello, 404 U.S. at 262 (“[W]hen
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 a promise must be fulfilled.”); Correale v. United States,
479 F.2d 944, 947 (1st Cir. 1973) (“Though a legitimate prosecution promise
does not render a guilty plea legally involuntary, its fulfillment is a
necessary predicate to a conclusion of voluntariness when a plea ‘rests
in any significant degree’ on it.”) (quoting Santobello, 404 Based
on this principle, our Court has held in a line of recent cases that 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. See In
this case, the Court of Criminal Appeals determined that the forfeiture
provision was a material term of the pretrial agreement, relied upon by
Appellant. Under our decisions in
Hardcastle
and Williams, when it became apparent that the material provision
in the pretrial agreement was ineffective, Appellant’s pleas became involuntary
and improvident, warranting relief.
The critical question in this case is whether a court of criminal appeals
or a convening authority can determine that alternative relief renders
a plea voluntary when an appellant argues that such relief does not give
him the benefit of his bargain.
The
Government asserts that appellate courts not only have the power to fashion
remedies other than specific performance or withdrawal, it maintains that
such relief can be imposed upon an unwilling appellant so long as that
relief provides the appellant with the benefit of his bargain.
It cites as authority for this position, this Court’s decisions in Mitchell,
50 M.J. at 83, and Smith, 56 M.J. at 273.
In
Mitchell,
we were asked to address whether a misunderstanding regarding a material
term in a pretrial agreement rendered an appellant’s guilty pleas improvident.
50 M.J. at 80. While that question
was on appeal before this Court, the Secretary of the Air Force approved
appellant Mitchell’s request for retirement. Because
we saw the Secretary’s action as having the potential to moot the granted
issue in Mitchell, we remanded the case to the Air Force Court of
Criminal Appeals to determine “whether, as a matter of law or regular practice,
a similarly situated airman would have been placed on retired-pay status,
as a matter of course, without regard to any litigation concerning that
airman’s pretrial agreement.” In
Smith,
we again had occasion to decide whether an accused had been deprived of
the benefit of his bargain because of a misunderstanding regarding the
effect of a term in his pretrial agreement. 56
M.J. at 273. Similar to Appellant
in this case, Smith pleaded guilty in exchange for a Government’s agreement
to waive automatic forfeitures in favor of his family. We
agreed with Smith that the forfeiture provision was a material term and
held that because the Government had not fulfilled its part of the agreement,
Smith had not received the benefit of his bargain. Neither
Smith
nor Mitchell however addressed the proposition that appellate courts
can impose alternative relief on an unwilling appellant to rectify a mutual
misunderstanding of a material term in a pretrial agreement. Those
cases simply establish that there are circumstances when alternative relief
may be appropriate. We now
conclude that an appellate court cannot impose such relief in the absence
of the appellant’s consent.
II
The touchstone case on the appropriate remedies for a failed material term
in a plea agreement is Santobello v. The
ultimate relief to which petitioner is entitled we leave to the discretion
of the state court, which is in a better position to decide whether the
circumstances of this case require only that there be specific performance
of the agreement on the plea, in which case petitioner should be resentenced
by a different judge, or whether, in the view of the state court, the circumstances
require granting the relief sought by the petitioner, i.e., the
opportunity to withdraw his plea of guilty.
Appellant
argues that this language in Santobello limits the relief available
to a court to remedy a mutual misunderstanding in a plea agreement to specific
performance or withdrawal. However,
the Court in Santobello did not expressly preclude the possibility
that other remedies might be appropriate in a particular case. Nor
did the Court address the military system of hybrid sentencing, which incorporates
penalties such as forfeiture and discharge, as well as confinement. See
Lane v. Williams, 455 Several
of the federal circuit courts have interpreted Santobello as permitting
imposition of a third type of remedy where specific performance or withdrawal
would be meaningless or infeasible. See,
e.g., Correale, 479 F.2d at 950 (applying a remedy other than
specific performance or withdrawal where such remedies would have been
“hollow”); United States v. Jureidini, 846 F.2d 964, 965-66 (4th
Cir. 1988) (citing Correale for the idea that courts have the power
to order equitable relief, where appropriate, to insure that a plea bargain
is not frustrated); United States v. O’Brien, 853 F.2d 522, 526
(7th Cir. 1988) (authorizing imposition of a specific sentence where neither
specific performance nor withdrawal “would provide an appropriate remedy”).
However,
the only circuit that has actually applied this third type of remedy has
said that, under Santobello, “a plea agreement is ordinarily remedied
either by specific performance of the agreement or by allowing the defendant
to vacate his guilty plea;” and alternative remedies are reserved for “extreme
situations” where other remedies “would be completely meaningless” or infeasible. Kingsley
v. The
Government goes a step further than the federal circuits that have liberally
construed Santobello. It maintains
that “[a] court of criminal appeals can remedy a failure of a material
term by ordering relief that the appellant does not desire, so long as
that remedy gives the appellant the benefit of the bargain,” even where
withdrawal or specific performance are not meaningless or infeasible.
There are obvious benefits to this position.
For example, because the military sentencing system has a number of sentencing
options, a military court or convening authority is more likely to be able
to find a desirable remedy as a substitute for an ineffective term in a
pretrial agreement than a civilian court.
Furthermore, concerns over judicial economy and finality favor applying
remedies other than withdrawal. This
is particularly true in a military system of worldwide deployment where
there are no permanent tribunals to supervise the implementation of pretrial
agreements. Applying alternative
relief could therefore avoid the difficulty of reconvening a court-martial
for retrial. For these reasons,
we recognized in Mitchell and Smith that alternative relief
may be appropriate in certain circumstances.
However,
weighted against the benefits of imposing alternative remedies on an unwilling
appellant are concerns about the voluntariness of pleas and the constitutional
rights afforded an accused. Imposing
remedies on an unwilling appellant after the conclusion of a providence
inquiry intrudes upon an accused’s decision to plead guilty.
When an accused pleads guilty, he waives a number of constitutional rights.
These rights are individual rights and can, in most circumstances, only
be exercised or waived by the accused. See
McCarthy, 394 Compelling
an accused to accept unwanted remedies as relief for a failed plea agreement
may also result in erroneous conclusions of voluntariness. Determining
whether a plea is voluntary is by no means an exact science. But
an accurate determination is more likely to result where the accused himself
assures the court that his plea is voluntary. 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--we
are skeptical 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.
The
present case provides an example of this situation. Appellant
pleaded guilty in exchange for the Government agreeing to provide his family
with income while he was incarcerated. That
agreement was not fulfilled in this case. Now
the government maintains that paying Appellant $3,184.90 plus interest
will fully compensate him. However,
that assertion ignores the timing of the payment, which Appellant argues
was as material as the amount of money promised in the agreement. Significantly,
the Court of Criminal Appeals found that the third paragraph of the agreement
in this case appeared to address this objective. Perron
I, 53 M.J. at 774. At this
stage, Appellant continues to maintain that payment in full does not compensate
his family for the present value of receiving the money during his incarceration.
Authorizing
courts to impose alternative relief may also effectively do away with withdrawal
as a form of relief. Courts,
as well as convening authorities, have an obvious interest in judicial
efficiency and finality. Where
a conviction is based on a guilty plea, courts are often loath to set aside
that plea because retrial is inefficient and burdensome. Where
courts are able to simply craft some form of “suitable” relief to avoid
retrial, they might be inclined to impose such relief even where withdrawal
is the more appropriate remedy. But
the issue in this case is not only about relief. This
case underscores the point that the remedy must go beyond simply making
one whole; rather, remedies for the failure of a material term in a pretrial
agreement must ultimately support a conclusion that the plea was voluntary. Imposing
alternative relief on an unwilling appellant does not do this.
We
therefore hold that 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.[7]
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[8]--but
it cannot impose such a remedy on an appellant in the absence of the appellant’s
acceptance of that remedy.
That
being said, 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.
Behind all the back and forth of alternative relief, this case is like
any other where the plea is challenged as improvident.
III
The Court of Criminal Appeals therefore erred when it concluded that payment-in-full
rendered Appellant’s plea voluntary. Appellant
should have been permitted to withdraw his plea.
The decision of the United States Coast Guard Court of Appeals is reversed. The
findings and sentence are set aside. The
record of trial is returned to the General Counsel of the Department of
Transportation for action consistent with this opinion. A
rehearing may be ordered.
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.
CRAWFORD, Chief Judge (dissenting):
The majority allows Appellant to withdraw from his pretrial agreement even though he received everything he bargained for. In doing so, the majority focuses on what Appellant says were his personal reasons for entering into the agreement. The majority does not, as it should, limit itself to identifying and enforcing the terms of the agreement Appellant and the convening authority actually reached. The end result contravenes strong public policy and well established federal case law. For these reasons, I respectfully dissent.
In Santobello v. New York, 404 U.S. 257 (1971), the Supreme Court recognized that plea agreements are "essential" to criminal justice, are "highly desirable," and must be "encouraged." Id. at 260-61. This is because such agreements
Thus, the benefits of plea agreements inure not only to defendants, but also to society, and the interests of both must be taken into account when deciding how best to remedy the Government’s breach of a plea agreement. As a result, even though a defendant waives fundamental constitutional rights when he or she pleads guilty,[1] the Supreme Court has made clear that the Government’s breach of a plea agreement does not entitle a defendant to withdraw from the agreement if the breach can be remedied by specific performance.
In Santobello, as part of a plea bargain, the prosecutor agreed to make no sentence recommendation. That promise was breached, however, when another prosecutor in the case, unaware of his predecessor’s promise, recommended the maximum sentence. Defense counsel immediately objected, but to no avail, and the trial judge imposed the maximum sentence. On these facts, the Supreme Court held Santobello was entitled to relief, but left to the discretion of the state court
The import of this language is clear. Even if a defendant requests to withdraw from a plea agreement that has been breached, specific performance of the agreement, when possible, should be the remedy. See United States v. Gilchrist, 130 F.3d 1131, 1134 (3d Cir. 1997)("[T]he district court, not the defendant, is to decide in the first instance whether to grant specific performance of the plea agreement or withdrawal of the guilty plea."); Peavy v. United States, 31 F.3d 1341, 1346 (6th Cir. 1994)("The choice between these remedies is not up to the defendant but, rather, rests in the sound discretion of the district court."); Kingsley v. United States, 968 F.2d 109, 113 (1st Cir. 1992)("The choice between these two remedies is not up to the defendant; rather, it rests with the court. . . . Specific performance, the less extreme remedy, is preferred.") (emphasis added); United States v. Tobon-Hernandez, 845 F.2d 277, 280-81 (11th Cir. 1988)("Santobello did not hold that a defendant’s choice of remedy for a breach of a plea agreement was binding on the court. Rather, the remedy for a breach of a plea agreement is within the sound discretion of the court.").
Therefore, the question becomes: Is specific performance of the breached promise in Appellant’s case possible? And the answer to that is yes.
At the outset, it is important to note what the breached promise was -- and what it was not. It was not the type of breached promise found in almost every post-Santobello federal case dealing with this subject, i.e. – a promise by a prosecutor to make or refrain from making a sentence recommendation to the trial judge, to dismiss certain charges, to reduce certain charges, or not to prosecute certain offenses. See Jay M. Zitter, Choice of Remedies Where Federal Prosecutor has Breached Plea Bargain – Post- Santobello v. New York, 120 A.L.R. Fed. 501 (1994 & 2002 Supp.). Instead, it was a promise unique to the military justice system, i.e. - a promise to pay a sum of money.
In the military, a court-martial sentence that includes more than six months’ confinement or a punitive discharge results in the automatic forfeiture of pay and allowances due a servicemember during confinement. See Art. 58b(a)(2002), Uniform Code of Military Justice, 10 U.S.C. § 858b(a). However, the convening authority (the person who enters into a plea agreement with an accused)[2] may waive these forfeitures for six months and pay them to the dependents of an accused. See Art. 58b(b). Significantly, there is no requirement that the money be used for any particular purpose. Nor is there any accounting or monitoring system in place to determine how the money is used. Consequently, while the money certainly can be used for support and necessities, it also can be used for many other things.
Given these possibilities, and absent any evidence in the record compelling a different result, this Court should not read into the agreement between Appellant and the convening authority anything more than what its express, unambiguous terms provide for -– the payment of a sum of money. Plea agreements are contracts, and the terms of those contracts are ascertained using general principles of contract law. United States v. Acevedo, 50 M.J. 169, 172 (C.A.A.F. 1999). Two of those principles are as follows:
In Appellant’s case, the terms of the agreement ("waive any or all forfeitures and pay the dependents of the accused") are unambiguous. Moreover, nothing else in the agreement, or the discussion of the agreement on the record, suggests any particular reason why the parties agreed on the payments, or any agreement between them as to what the money could, or could not, be used for. Cf.Kingsley, 968 F.2d at 111-12, 114-15 (discussion on the record between trial judge, prosecutor, and defense counsel supplied additional meaning to written terms of pretrial agreement). As a result, nothing supports a limiting interpretation of this agreement that one of the mutually agreed upon terms was "time was of the essence" in the payment of the money.[3]
This case is not about what Congress intended when it enacted Article 58b(b); and it is not about what personal reasons may have motivated Appellant to enter into his pretrial agreement. This case is about what both appellant and the convening authority mutually intended and actually agreed to, and about enforcing that agreement as a matter of good social policy. That said, there is nothing in the unambiguous terms of the written agreement, or anywhere else, that suggests the convening authority was made aware of, understood, and agreed that Appellant had a particular, immediate use to which he wanted to put the money, and that the agreement would fail if the money was not immediately paid. See United States v. Burns, 160 F.3d 82, 83 (1st Cir. 1998)("[S]ignificant plea-agreement terms should be stated explicitly and unambiguously so as to preclude their subsequent circumvention by either party.").[4]
Thus, the mutually agreed upon promise in this case was nothing more than payment of a sum of money, and specific performance of that unique promise was properly accomplished through alternative means when (1) the convening authority disapproved the sentence to confinement, resulting in a payment to Appellant of $3,184.90, and (2) the Court of Criminal Appeals set aside the sentence of reduction to E-3, which, if affirmed by this Court, "will allow for payment of additional money as a substitute for interest." 57 M.J. at 599 (relying on United States v. Mitchell, 50 M.J. 79, 82-83 (C.A.A.F. 1999), and United States v. Olson, 25 M.J. 293, 298-99 (C.M.A. 1987)).
The lower court’s reliance on Mitchell was well placed. Mitchell, and this Court’s most recent decision in United States v. Smith, 56 M.J. 271 (C.A.A.F. 2002), are controlling.[5] In each, as in this case, the convening authority and the appellant entered into a pretrial agreement where the convening authority agreed to waive automatic forfeitures and pay the money to the appellant’s dependents. In each, as in this case, the convening authority could not fulfill that promise because the appellant was not entitled to pay during the period of his confinement. And in each, this Court allowed the lower court to "determine whether some ‘appropriate alternative relief’ [was] available ‘as an adequate means of providing [the] appellant with the benefit of his bargain.’" Id. at 279 (quoting Mitchell, 50 M.J. at 83). Failing that, of course, the appellant could withdraw his pleas of guilty.
There is no reason why the result in Appellant’s case should be any different. The one fact distinguishing this case from Mitchell and Smith is that Appellant states the only remedy that will satisfy him is withdrawal of his pleas, whereas the appellants in Mitchell and Smith were silent in that regard. But that is a distinction without a difference, because the law is abundantly clear -– the choice of remedy rests with the courts, and the fact an otherwise appropriate remedy is not an appellant’s remedy of choice does not compel a different result, because it does not offend due process in light of society’s compelling interest in supporting and enforcing plea agreements. See Santobello, Gilchrist, Peavy, Kingsley, and Tobon-Hernandez, all supra.
This case should be affirmed.
1 By pleading guilty, a defendant waives the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. See Boykin v. Alabama, 395 U.S. 238, 243 (1969); McCarthy v. United States, 394 U.S. 459, 466 (1969).
2See Rule for Courts-Martial 705(a).
3See generally John D. Calamari & Joseph M. Perillo, The Law of Contracts 414-16 (4th ed. 1998)(only when time is of the essence does delay constitute a material breach).
4 I note that the pretrial agreement did state it would terminate in a variety of other situations, demonstrating that when Appellant and the convening authority agreed to such a condition, they included it in their agreement.
5 This Court’s decisions in United States v. Williams, 53 M.J. 293 (C.A.A.F. 2000), and United States v. Hardcastle, 53 M.J. 299 (C.A.A.F. 2000), are not controlling. In each, the convening authority, through government appellate counsel, agreed to the appellant’s withdrawal of his pleas as a remedy for the convening authority’s breach. No such concession exists here.