United States v. Withee
ACM S32357
A.F.C.C.A.Feb 15, 2017Background
- Appellant pleaded guilty at a military judge-alone special court-martial to multiple specifications of using MDMA and psilocybin; sentence: bad-conduct discharge, 45 days confinement, reduction to E-1. Convening authority approved sentence, deferred reduction until action, and waived automatic forfeitures for benefit of spouse per the pretrial agreement (PTA).
- PTA required the convening authority to dismiss certain charges and to waive/disapprove specified confinement and forfeitures; it also included Appellant’s agreement to plead guilty and to “waive [his] clemency rights.”
- At trial the military judge confirmed that the waiver of “clemency rights” meant waiving the right to submit matters to the convening authority under R.C.M. 1105; Appellant and defense counsel acknowledged and signed post-trial advisals reflecting that waiver.
- After sentencing, the military judge recommended the convening authority consider deferral/waiver of automatic forfeitures and deferral of reduction in grade; defense counsel requested waiver/deferral consistent with the PTA but also stated they would not submit further clemency matters.
- The SJA advised and the convening authority granted the requested deferral/waiver; later the SJA served the SJAR and defense submitted a written waiver of further clemency proceedings referencing the PTA.
- Appellant appealed, arguing the PTA’s clemency waiver violated R.C.M. 705(c)(1)(B) by depriving him of the complete and effective exercise of post-trial (R.C.M. 1105) rights.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether a PTA term waiving the right to submit R.C.M. 1105 matters violates R.C.M. 705(c)(1)(B) | Waiver of "clemency rights" deprived Appellant of complete and effective post-trial rights | Concedes unenforceable but argues differing remedies | Court: Term is unenforceable under R.C.M. 705(c)(1)(B) (agree with Appellant) |
| Whether the illegal PTA term was enforced and what relief is required | Entitled to new post-trial processing to exercise R.C.M. 1105 rights because waiver was enforced | Either no relief (term not enforced) or relief requires a colorable showing of prejudice | Court: Term was enforced (defense acted under belief of waiver); new post-trial processing ordered |
| Whether striking the clause without remand suffices (analogous to Tate/Evans) | Remand required because the unlawful provision already affected clemency processing | Argues prior case law supports merely voiding the clause absent prejudice | Court: Distinguished Tate/Evans—those affected future/parole rights; here the unlawful term was acted on, so remand required |
| Whether Appellant must show colorable prejudice to obtain relief | N/A | Government: should require colorable showing (Scalo/McLaughlin framework) | Court: R.C.M. 705(c)(1)(B) mandate that such terms "shall not be enforced" means remand is required here despite Government’s prejudice argument |
Key Cases Cited
- United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007) (pretrial-term restricting post-trial rights is unenforceable; court may void offending provision and preserve remainder of PTA)
- United States v. Scalo, 60 M.J. 435 (C.A.A.F. 2005) (appellant must show colorable showing of possible prejudice from errors affecting clemency processing)
- United States v. McLaughlin, 50 M.J. 217 (C.A.A.F. 1999) (impermissible PTA term may yield no relief where no colorable claim exists to show prejudice)
- United States v. Forrester, 48 M.J. 1 (C.A.A.F. 1998) (denial of relief where no showing that broad PTA waiver actually precluded valid defenses)