2 M.J. 1014 | U.S. Army Court of Military Review | 1976
OPINION OF THE COURT
A special court-martial empowered to adjudge a bad-conduct discharge convicted appellant, in accordance with his pleas of guilty, of assault and aggravated assault in violation of Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928. He was sentenced to be discharged from the service with a bad-conduct discharge, to be confined at hard labor for four months, and to forfeit $240.00 pay per month for four months. Pursuant to a pretrial agreement, the convening authority approved the sentence but suspended the bad-conduct discharge.
The pretrial agreement entered into by the convening authority and the appellant provided in part that:
“The accused further agrees to waive his right to have his sentence determined by a board of officers or a board of officers and enlisted members, at least Vz being enlisted.”
Appellant now contends that his pleas of guilty were improvident as they were entered pursuant to a pretrial agreement which was void as against public policy.
The remaining operative facts with which we are concerned may be briefly stated. While questioning the accused about the pretrial agreement, the military judge asked whose idea it was that the clause in question be a part of that agreement. After accused answered, “My idea, I guess,” the trial defense counsel elaborated:
“ . . .it was stated to us, before we had made a decision as to a jury or judge alone trial, that the agreement would be conditioned upon not having the sentence determined by a board of officers or a board of officers with at least one-third enlisted members; that would be part of the agreement.
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The defense — we do waive that right in the agreement. We have no qualms about waiving that right, but it did not originate with us.”
The Court of Military Appeals in United States v. Schmeltz, 23 U.S.C.M.A. 377, 50
In the case sub judice, the requirement that appellant waive his right to a trial before a court with members originated with the Government. Although appellant may have had no qualms about waiving that right in order to obtain the pretrial agreement, it is improper in a negotiated plea to lead the accused to believe his judicial confession of guilt requires him to fore-go his statutory right to trial by a court-martial with members. See Article 16, UCMJ, 10 U.S.C. § 816. This constitutes extrajudicial infringement upon the trial and its procedures. United States v. Holland, supra.
The military judge was apparently aware of this clause’s potential to constitute error. Nevertheless, he did not dispel the appellant’s belief that the clause was required in order to qualify for the pretrial agreement.
The findings of guilty and the sentence are set aside. A rehearing may be ordered.