2 M.J. 600 | U.S. Navy-Marine Corps Court of Military Review | 1976
Lead Opinion
Appellant stands convicted by special court-martial of numerous specifications under Articles 86 and 91, UCMJ, 10 U.S.C. §§ 886, 891 to which he pleaded guilty pursuant to a pretrial agreement. As the case reaches us, appellant’s sentence consists of a bad conduct discharge, two months confinement at hard labor, forfeiture of $50 pay per month for two months and reduction in rate to E-l, with the bad conduct discharge suspended pursuant to the pretrial agreement and, additionally, all confinement in excess of 24 days suspended for the period of confinement and six months. Appellant’s assignment of errors to the effect that two specifications fail to state offenses and that a third is improvident are without merit. There is another matter not noted by appellant, however, that must be addressed.
Having just recently been assigned to the bench, this case is the first in which I have been confronted with a pretrial agreement containing a provision as follows:
“That I understand that the convening authority will not be bound by the terms of this agreement should I engage, after the date this agreement is signed, but before the action of the convening authority, in any misconduct amounting to a violation of the Uniform Code of Military Justice, or state or federal criminal law. Should such misconduct occur and be evidenced by official records of misconduct, the convening authority may take his action on this case without being bound by the provisions of this agreement.”
Previous decisions by the U. S. Navy Court of Military Review have found paragraphs similar to this one to be legal, proper, and not contrary to public policy. United States v. Bigler, 50 C.M.R. 818 (N.C.M.R. 1975); United States v. Nolan, 50 C.M.R. 360 (N.C.M.R. 1975); United States v. May, 49 C.M.R. 863 (N.C.M.R. 1974); United States v. Scott, No. 73 2553 (N.C.M.R. 22 April 1974); and United States v. Hammonds, No. 74 0740 (N.C.M.R. 11 April 1974). The U. S. Army Court of Military Review also affirmed such pretrial agreement terms in United States v. Goode, 49 C.M.R. 292 (A.C.M.R. 1974). It could be argued that upon review of the Army Court’s action the U. S. Court of Military Appeals, in United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975) by quoting the pretrial agreement provision in the opinion and by seeming to accept the fact that a convening authority could depart from the sentencing terms agreed upon, affirmed the validity of such provisions. It should be noted, however, that the Court in that case was confronted by specific certified issues from the Judge Advocate General of the Army, which related to the question of providing a hearing for the accused before acting on the sentence and not specifically to the question of the legality of the pretrial agreement. Certainly, if the Court of Military Appeals intended to approve such a provision it was a departure from previous expressions by it that pretrial agreements should be limited to pleas of guilty for a stated approved sentence. In United States v. Cummings, 17 U.S.C.M.A. 376, 380, 38 C.M.R. 174, 178 (1968), the author of the majority opinion in Goode stated “We reit
In United States v. May, supra, Judge Williams finds such a provision valid after synthesizing and then applying a rule concerning pretrial agreement provisions which require more of an accused than his guilty plea. That rule, as phrased by Judge Williams, is that a provision requiring more of an accused than his guilty plea is invalid only if it is “against public policy”, is “repugnant to civilized sensibilities” or requires the accused to forego “statutory or constitutional rights.” He found terms voiding the sentence portion of the pretrial agreement, upon the accused’s commission of an act of misconduct, not in conflict with these criteria. Assuming, without deciding, the correctness of the rule announced in that case, I would apply it to the instant provision and find it requires declaring such a provision void. It is both repugnant to civilized sensibilities and against public policy to permit a convening authority to renounce a promise with respect to a sentence, after the accused pleads guilty in reliance on that promise. Misconduct committed after the accused pleads and is found guilty can be punished by separate, independent action and should, in my view, be irrelevant with respect to the convening authority’s agreed action on the sentence. As stated in United States v. Cox, 22 U.S.C.M.A. 69, 71, 46 C.M.R. 69, 71 (1972):
“In the pretrial negotiations, the convening authority occupies a strong bargaining position. Frequently the convening authority’s motive for consummation of the deal is a grant of clemency. However, the convening authority, as a bargainer, also benefits from such an agreement by his command not having to conduct a contested court-martial. The bargaining street is two way, not one way.”1
Both the Navy and Army Courts of Military Review in Scott, Bigler, and Goode, supra cite United States v. Lallande, 22 U.S.C.M.A. 170, 46 C.M.R. 170 (1973), in approving pretrial agreement conditions prohibiting misconduct. Interestingly enough, Judge Williams in May, supra, expressly chose not to consider that case in reaching his decision. I find Lallande, rather than supporting the validity of such provisions, pointing another way to their illegality. In Lallande, both Judge Quinn, writing for the majority, and Judge Duncan, concurring in part and dissenting in part, looked closely at the statutory authority for setting terms of probation and in so doing found only two provisions in the Uniform Code of Military Justice relating to probation. Article 71, UCMJ authorizes a convening authority to suspend the execution of a sentence, thereby empowering him to grant probation with respect to such suspension, and Article 72, UCMJ, provides for vacating such a suspension for violation of the probation. In the words of the U. S. Supreme Court, as quoted by Judge Duncan from Affronti v. United States, 350 U.S. 79, 83, 76 S.Ct. 171, 174, 100 L.Ed. 62, 66 (1955), “Federal judicial power to permit probation springs solely from legislative action.”
Undoubtedly, the provision encountered in this case was considered particularly necessary by those who devised it to meet the situation that could arise when a convening authority agreed to suspend all or a portion of the approved sentence and the accused committed an act of misconduct before such suspension was effected. Such misconduct might have appeared to those drafters to be outside the scope of the probationary period set by a suspension and therefore not usable as a basis for vacating it. They, therefore, came up with this ingenious provision that would enable the convening authority to avoid suspending the sentence in such situations. Not only is this device illegal, for the
Before leaving this subject completely I feel it important to point out just one example of the potential for evil inherent in the use of pretrial agreement provisions prohibiting misconduct for an unspecified period until the convening authority acts. Such an example may be found in the recent case of United States v. Menard, No. 76 0205 (N.C.M.R. 17 November 1976) decided by this Court. Although disapproved on other grounds, with no provision prohibiting misconduct involved, that case graphically underscores the potential for harm to an accused. In Menard the accused pled guilty pursuant to a pretrial agreement and was found guilty but the convening authority did not act on the sentence for ten and one-half months. Had there been a “no misconduct” provision in that agreement and were it deemed legal that accused would have remained in a probationary status, waiting for a sentence, longer than most lawful probations associated with suspended sentences. Such a lengthy indeterminate probationary period, which must be served free from misconduct in order to get the convening authority to comply with his promised sentence action clearly offends against “civilized sensibilities.”
For the reasons enunciated in this opinion I find the quoted paragraph from the instant pretrial agreement void. I do not consider the remainder of the agreement tainted, however, and since all the other terms have been met, the sentence may be affirmed without regard to the invalid provision.
The findings and sentence as approved and partially suspended below are affirmed.
. In Cox the Court held that pretrial agreements do not carry with them an implied condition such as encountered in the instant case and noted that it was not called upon to decide
. United States v. Lallande, 22 U.S.C.M.A. 170, 175, 46 C.M.R. 170, 175 (1973).
Concurrence Opinion
(concurring in the result):
Although I would prefer that pretrial agreements simply provide for a plea of guilty in exchange for a limitation of sentence, I do not find that the provision in the pretrial agreement in question is invalid. I consider that cases cited by Judge Baum in the principal decision provide a rational analysis of the validity of the provision and adequately address the areas with which he voices his disagreement.
Concurrence Opinion
(concurring and dissenting):
I concur in affirming the findings and sentence. However, I would permit the inclusion in the pretrial agreement the provision condemned by my brother. While that provision has not been included in the suggested form for pretrial agreements, JAGMAN A-l-e and JAGMAN A-l-f, nor is it specifically provided for in the instruction, JAGMAN 0114, in my opinion such provision is not prohibited, it does not waive any statutory or constitutional right and it is not contrary to public policy or to the rule in United States v. Cummings, 17 U.S. C.M.A. 376, 38 C.M.R. 174 (1968). I see nothing wrong with an accused agreeing not to further violate the criminal laws, until the convening authority has had time to act on his then current trial.