Lead Opinion
This case involves an issue of first impression concerning how far an accused and a convening authority can go in fashioning a pretrial agreement. The question is whether, in exchange for a sentence limitation in a pretrial agreement, an accused can plead not guilty, enter into a confessional stipulation, and waive his right to present evidence on the merits. We hold that, although unusual, this procedure is not inconsistent with due process under the facts of this ease.
A military judge, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of two periods of unauthorized absence, wrongfully possessing drug paraphernalia, wrongfully using marijuana and cocaine, and making and uttering checks without sufficient funds, in violation of Articles 86, 92, 112a, and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 892, 912a, and 923 (1994)[hereinafter UCMJ]. The military judge sentenced the appellant to confinement for 1 year, total forfeitures, reduction to paygrade E-l, and a bad-conduct discharge. The pretrial agreement had no effect on the sentence and the convening authority approved the sentence as adjudged. In his single assignment of error
Pretrial agreements have long been an important part of much of contemporary criminal litigation. They are intended to prevent informal “understandings” and protect the rights of the accused and the interests of the Government. See Santobello v. New York,
[Pjretrial agreements are properly limited to the exchange of a plea of guilty for approval of a stated maximum sentence. Attempting to make them into contractual type documents which forbid the trial of collateral issues and eliminate matters which can and should be considered below, as well as on appeal, substitutes the agreement for the trial and, indeed, renders the latter an empty ritual.
Id. at 178. See United States v. Allen, 8 C.M.A. 504, 507,
In later years the courts have provided the litigants with much wider latitude to negotiate agreements. In United States v. Schaf-fer,
The appellate courts have also reviewed whether a court can properly consider a stipulation of fact which admits all or many of the elements of the offense of which the accused is charged. In the leading ease, United States v. Bertelson,
In codifying this developing case law, R.C.M. 705 provides procedural guidance concerning pretrial agreements. R.C.M. 705(b) specifically provides that the accused’s consideration for entering into a pretrial agreement may include a promise to plead guilty “or to enter a confessional stipulation to one or more charges and specifica-tions____”
R.C.M. 705(c) outlines both prohibited and permissible terms or conditions in pretrial agreements: “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 posttrial and appellate rights.” R.C.M. 705(c)(1)(B). The next subsection states:
(2) Permissible terms or conditions. Subject to subsection (c)(1)(A) of this rule [which provides that the accused must have freely and voluntarily agreed to any condition], subsection (c)(1)(B) of this rule does not prohibit either party from proposing the following additional conditions:
(A) A promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or as to which a confessional stipulation will be entered____
The language of this Rule implies that an accused can either plead guilty or plead not
This subsection is intended to ensure that certain fundamental rights of the accused cannot be bargained away while permitting the accused substantial latitude to enter into terms or conditions as long as the accused does so freely and voluntarily. Subsection (1)(B) lists certain matters which cannot be bargained away. This is because to give up these matters would leave no substantial means to ensure judicially that the accused’s pleas were provident, that the accused entered the pretrial agreement voluntarily, and that the sentencing proceedings met acceptable standards.
Manual For Courts-Martial, United States (1995 ed.), app. 21, at A21-38 (citations omitted) [hereinafter MCM].
In the instant case, the appellant entered into a pretrial agreement with the convening authority 3 days before trial. Unlike virtually all such agreements we have reviewed, however, this one did not require that the appellant plead guilty to any of the offenses with which he was charged or even any lesser offenses. Instead, the major consideration he offered, in exchange for a promise from the convening authority to suspend any confinement in excess of 12 months, was to enter into a confessional stipulation and agree not to present any witnesses or other evidence on the merits.
Before accepting the pretrial agreement, Appellate Exhibit I, and the Stipulation of Fact, Prosecution Exhibit 1, the military judge conducted a comprehensive on-the-ree-ord review. He stated that this “appears to be a confessional stipulation” and that it was therefore “necessary that I conduct what’s called a Bertelson inquiry.” Record at 7. Inquiring of both counsel and the appellant, the military judge ascertained that entering into the stipulation was a condition of the pretrial agreement and that the appellant had discussed it carefully with his defense counsel. Record at 7-9. In a manner quite similar to a Care inquiry, the military judge, after laying out each of the elements of the offenses, reviewed whether the appellant understood that the stipulation admitted virtually every element of each of the offenses to which he was pleading not guilty. Record at 9-19. He then went over every one of the provisions of the pretrial agreement to make sure that the appellant understood it completely. Record at 19-24. He thus assured himself that the appellant had entered into the agreement intelligently and voluntarily and that there was a factual basis for each of the admissions. Finally, the appellant produced persuasive evidence and testimony, and then argued vigorously, in an effort to limit his punishment. Record at 28-47. This was no “kangaroo court.'’
We also note that the appellant expressly waived his right to present evidence on the merits. The Supreme Court recently observed that waiver is the “intentional relinquishment of a known right” and that it has the legal effect of extinguishing any error regarding that right. United States v. Ola-no,
We also can find no prejudice to the appellant on these facts. In United States v. Gibson,
Under the circumstances of this case, we believe that there was no infringement on the appellant’s due process or other substantive rights. Moreover, we have no difficulty finding, as did the military judge, that the appellant “knowingly and voluntarily consented to the use of [the confessional] stipulation as evidence before this court.” Record at 25. We also find no abuse of his discretion in his finding “that the pretrial agreement is in accordance with appellate case law, not contrary to public policy or [his] own notions of fairness____” Id. See United States v. Cas-sity,
Although we conclude that there was no error on the facts of this case, we question what the parties hoped to accomplish by taking such a novel approach. Unlike in Schaffer, the trial defense counsel was not preserving his right to argue for a lesser quantum of criminal culpability. See Schaf-fer,
The real reason we perceive for the approach taken here was an effort by counsel and the convening authority to expedite the findings portion of the trial and avoid a full-blown Care inquiry. We join with our dissenting brother in finding this disturbing. We do not fault the military judge: he fully met his responsibility of examining the operative documents which came before him, resolving ambiguities, and ensuring compliance with applicable law. The military judge is only the referee: he is not the coach for either side and cannot devise the game plan. And, on balance, we believe this proceeding was conducted fairly.
While we are confident that the military judge protected the fundamental rights of the appellant and the court-martial as a whole was not the “sham” proceeding the appellant now claims, we would caution practitioners against entering a not guilty plea merely to avoid the providence inquiry. See United States v. Clevenger,
This court has authorized parties to use a stipulation of fact to help the providence inquiry proceed more smoothly, United States v. Sweet, 38 M.J. 583, 589-90, 592-93 (N.M.C.M.R.1993), aff'd,
Despite our concerns, however, and after reviewing the entire record, we conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Accordingly, we affirm the findings and the sentence, as approved on review below.
Chief Judge DOMBROSKI concurs.
Notes
. THE MILITARY JUDGE ERRED IN ACCEPTING APPELLANT'S PRETRIAL AGREEMENT IN THAT THE PRETRIAL AGREEMENT CONTAINED A PROHIBITED AND UNENFORCEABLE PROVISION TO "CALL NO WITNESSES AND PRESENT NO EVIDENCE ON MY BEHALF DURING THE CASE ON THE MERITS,”
. The accused in Schaffer had not only waived the pretrial investigation but entered into a confessional stipulation of fact which established a prima facie case of larceny but allowed his counsel to argue that he should be found guilty only of wrongful appropriation.
. The appellant also agreed to a trial by military judge alone and to complete in-patient drug rehabilitation "at the earliest time practicable.” Appellate Exhibit I, "Terms of the Agreement,” at 2, HH 1, 4. The appellant does not contend that these are objectionable terms or conditions. See R.C.M. 705(c)(2)(E).
. We note that the trial defense counsel did argue in a brief closing argument that, other than the inference raised by the stipulation, the Government failed to prove intent to defraud under the Art. 123a, UCMJ, 10 U.S.C. § 923(a), offenses. Record at 26-27. But we are inclined to believe that this was a spur-of-the-moment argument, and not a fundamental part of the appellant’s trial strategy.
. We trust that the parties did not take this approach merely to create an appellate issue.
Dissenting Opinion
(dissenting):
I respectfully dissent. In the pretrial agreement for this contested general court-martial, the appellant agreed to waive his right to be tried by members, to present evidence on the merits, and to call witnesses on the merits. The appellant also agreed to enter into a confessional stipulation of fact, Prosecution Exhibit 1, which effectively encompassed all of the elements of the charged offenses. Now, the appellant contends that the combination of those pretrial agreement terms violates Rule for Courts-Martial 705(c)(1)(B), Manual for Courts-Martial, United States (1995 ed.) [hereinafter R.C.M.]. I agree.
The Government argues that R.C.M. 705(c)(1)(B) has not been violated, and, even if it was, the appellant waived the issue at trial, which precludes this court from reviewing the alleged error. Also, the Government argues that because the appellant understood the nature and the consequences of all of the agreement’s terms and voluntarily entered into the agreement, that the appellant should not be heard to complain now.
R.C.M. 705(c)(1)(B) indicates 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, ...” or several other rights. In this case, the appellant was denied the right to counsel. On its face, this case was a contested general court-martial. However, the trial defense counsel made no opening statement, and the pretrial agreement barred the appellant from offering evidence on the merits or calling witnesses on the merits. If there had been no pretrial agreement requiring such total inaction, we would not hesitate, I hope, to find that the appellant was denied his constitutional and statutory right to effective representation. I am not willing to approve of a pretrial agreement in which the parties contract for ineffective assistance of counsel in violation of R.C.M. 705(c)(1)(B).
This agreement also violates R.C.M. 705(e)(1)(B) because it deprives the appellant of his right to due process. There cannot be any more fundamental due process right at a contested general court-martial than the right of an accused to present evidence and call witnesses. By its terms, this agreement deprived the appellant of that opportunity.
Actually, this case was a contested general court-martial in name only. The appellant contends, and the Government concedes in its pleading, that this was a de facto guilty plea case. I agree and I am not satisfied with the trial judge’s inquiry regarding the rights of the appellant. The trial judge should have ascertained, on the record, that the appellant understood that his was not really a contested case. The trial judge should have ensured that the appellant was aware of the important rights he enjoyed because of his pleas of not guilty. Also, he should have ensured that the appellant was knowingly, consciously, and intelligently waiving those rights in this de facto guilty plea case. See R.C.M. 910(c); United States v. Care,
I understand that the law in this area has evolved during the last 30 years. At one time, agreements were limited to pleas and sentence terms. Now, military appellate courts approve a much broader range of pretrial agreement terms. Also, I believe that the range of acceptable terms probably exceeds the limits of those listed in R.C.M. 705(c)(2). However, the pretrial agreement in the instant case goes too far. It became a substitute for the trial on the merits. The merits phase of the trial became nothing more than an empty ritual, a mere expedient for the sentencing phase of the trial. In short, the merits phase of the trial was a sham. Any pretrial agreement which requires such a sham should be void as a matter of law and public policy.
What the trial judge and my brethren approve, I would find contrary to public policy. In United States v. Cassity,
Although they approve of the appellant’s pretrial agreement, my brethren indicate that they are disturbed by its use, which was apparently to avoid a complete Care inquiry. They caution counsel against this practice. Unfortunately, practitioners will see the bottom line, that this pretrial agreement has been approved by our court. The cautions expressed by the majority will be recognized as dicta, and likely will not be followed.
By approving this agreement, we have not improved our system of justice, done anything to increase public confidence, or enhanced the quality of representation and justice provided to our Marines and Sailors. We have done just the opposite. I would not approve the provisions of the pretrial agreement that require the appellant to present no evidence and call no witnesses on the merits. In my opinion, those terms violate R.C.M. 705(c)(1)(B) and should be deemed void and unenforceable as a matter of law and public policy.