4 M.J. 897 | U.S. Navy-Marine Corps Court of Military Review | 1978
Pursuant to pleas of guilty entered in accordance with a pretrial agreement, the accused was convicted at a special court-martial bench trial of willful destruction of military property, simple arson, and simple assault, in violation of Articles 108, 126, and 128, UCMJ, 10 U.S.C. §§ 908, 926, and 928. The sentence approved on review below
The accused asserts and the Government concedes that the inquiry of the military judge concerning the pretrial agreement was inadequate because the judge did not secure from the defense counsel and the prosecutor confirmation that the written agreement encompassed all of the understandings of the parties. The issue presented by this appeal is whether there is a remedy for the deficient inquiry other than setting aside the findings. Citing Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) and United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), appellate Government counsel asks us to establish the facts by obtaining affidavits or answers to interrogatories from counsel or, in the alternative, to remand the record of trial to the convening authority for a limited hearing. We reject the Government’s position and reverse, because such a defect in a plea bargain inquiry is a matter affecting the providence of the accused’s plea and requires the remedy normally utilized in cases involving improvident pleas, that is, setting aside the findings based upon the improvident pleas of guilty and authorizing a rehearing at which the accused is permitted to plead anew.
In United States v. Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976), to ensure that the propriety and meaning of various plea bargain provisions would be satisfactorily set forth on the record, the Court of Military Appeals announced guidelines for plea bargain inquiries, which included the trial judge’s securing assurance from the counsel for the accused as well as the prosecutor that the written agreement encompasses all of the understandings of the parties. The Court noted that a plea bargain inquiry is essential to satisfy the statutory mandate
In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Supreme Court was faced with determining the effect of noncompliance with a rule designed to assist the district judge in making the constitutionally required determination that an accused’s guilty plea is truly voluntary and produce a complete record at the time the plea is entered of the factors relevant to the voluntariness determination. The rule required the judge to address the defendant personally and determine that the plea was made voluntarily with understanding of the nature of the charge and the consequences of the plea. Rejecting the holdings of the courts of appeals which had ruled that, if voluntariness cannot be determined from the record, the case should be remanded for an evidentiary hearing on the
In Blackledge v. Allison, supra, the Supreme Court sanctioned the use by a federal district judge, pursuant to the Rules Governing Habeas Corpus Proceedings, of interrogatories and uncontroverted affidavits in order to determine whether an evidentiary hearing into an accused’s allegations in a petition for habeas corpus is necessary. In United States v. DuBay, supra, the Court of Military Appeals ordered evidentiary hearings to determine whether trials were infected with unlawful command influence and directed the law officers (trial judges) to set aside the findings or sentence, or both, if such influence was found. The Court has sanctioned the use of such hearings to resolve various other issues. United States v. Ray, 20 U.S.C.M.A. 331, 43 C.M.R. 171 (1971) (speedy trial); United States v. Perez, 18 U.S.C.M.A. 24, 39 C.M.R. 24 (1968) (denial of counsel). See United States v. McCarthy, 25 U.S.C.M.A. 30, 54 C.M.R. 30 (Interim), 2 M.J. 26 (1976) (jurisdiction). Cf. United States v. Dyjak, 18 U.S.C.M.A. 81, 39 C.M.R. 81 (1969) (admissibility of evidence). We are unaware of any case on direct appeal in which the Court of Military Appeals has authorized a limited rehearing at which the accused is not permitted to plead anew to cure a defective inquiry into the voluntariness and providence of the accused’s pleas. But cf. Smith v. Helgemoe, 23 U.S.C.M.A. 38, 48 C.M.R. 509 (1974) (providence of plea raised by post-trial allegation in petition for habeas corpus); United States v. Davis, 47 C.M.R. 831 (N.C.M.R. 1973) (providence of plea raised by post-trial affidavit on direct review).
We construe King to prohibit appellate authorities from filling in a record which does not establish the providency of an accused’s pleas by compliance with the procedures mandated in Care and Green. We cannot distinguish this case from King. The military judge failed to obtain the requisite assurances from either the trial or the defense counsel. He did not ask the accused himself whether the written agreement encompassed all the understandings of the parties. Therefore, we decline to follow Crowley or Williamson or order a limited rehearing at which the accused is not permitted to plead anew. To do so
King is dispositive here. Finding that the procedure mandated in Green has not been complied with, we must hold that the guilty pleas of the accused in this case are improvident and set them aside. Accordingly, the findings of guilty and sentence are set aside. A rehearing is authorized.
Senior Judge NEWTON concurs.
Judge GRANGER (ABSENT).
. See Article 45(a), UCMJ, 10 U.S.C. § 845; United States v. Chancelor, 16 U.S.C.M.A. 297, 36 C.M.R. 453 (1966).
. It appears that the providence inquiries in Smith v. Helgemoe and Davis were sufficient under the existing law and no issues of providency arose until they were raised by the post-trial assertions of the accused. Limited evidentiary hearings were ordered in these cases.