UNITED STATES, Appellee, v. William T. LUNDY, Staff Sergeant, U.S. Army, Appellant.
No. 03-0620
U.S. Court of Appeals for the Armed Forces.
Argued April 21, 2004. Decided June 24, 2004.
60 M.J. 52
For Appellant: Captain Robert E. Desmond (argued); Colonel Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, Major Allyson G. Lambert (on brief); Captain Gregory M. Kelch.
For Appellee: Lieutenant Colonel Margaret B. Baines (argued); Colonel Lauren B. Leeker and Major Natalie A. Kolb (on brief).
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of a military judge sitting alone, appellant was convicted, pursuant to mixed pleas, of various sexual offenses against his children, including attempted carnal knowledge, attempted indecent acts, forcible sodomy (two specifications), and indecent acts (six specifications), in violation of
On Appellant‘s petition, we granted review of the following issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS, HAVING FOUND THAT THE CONVENING AUTHORITY DID NOT OR COULD NOT WAIVE FORFEITURES AT THE E-6 RATE AS PROVIDED IN THE PRETRIAL AGREEMENT, ERRED WHEN IT HELD THAT BECAUSE HIS FAMILY RECEIVED PAYMENTS UNDER THE TRANSITIONAL COMPENSATION PROGRAM,
10 U.S.C. 1059 , HIS PLEAS WERE NOT IMPROVIDENT.1
A. FORFEITURE OF PAY AND REDUCTION IN PAY GRADE
1. Authorized forfeitures and reductions
As we noted in United States v. Emminizer, 56 M.J. 441, 442 (C.A.A.F.2002), a court-martial may lead to two distinct types of forfeiture of pay and allowances: (1) an adjudged forfeiture included in the sentence imposed by a court-martial under Rule for Courts-Martial 1003(b)(2) [hereinafter R.C.M.]; and (2) mandatory forfeitures under
A service member‘s pay and allowances also may be affected by a reduction in pay grade. There are two distinct types of reductions in pay grade applicable to enlisted personnel: (1) an adjudged reduction included in the sentence adjudged by a court-martial under R.C.M. 1003(b)(4); and (2) a mandatory reduction to pay grade E-1, the lowest enlisted pay grade, under
(a) Unless otherwise provided in regulations to be prescribed by the Secretary concerned, a court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes—
(1) a dishonorable or bad-conduct discharge;
(2) confinement; or
(3) hard labor without confinement;
reduces that member to pay grade E-1, effective on the date of that approval.
Under
2. Effective dates and pre-action deferral
Adjudged forfeitures, mandatory forfeitures, and adjudged reductions in pay grade take effect on the earlier of: (1) fourteen days after the date on which the sentence is adjudged, or (2) the date on which the sentence is approved by the convening authority.
3. Post-action suspension and waiver
When taking formal action on the sentence under
Different rules pertain to statutorily mandated forfeitures and reductions. The convening authority is not authorized to suspend the mandatory forfeitures required by
Because mandatory reductions in pay grade are subject to service-specific regulation under
B. TRANSITIONAL COMPENSATION FOR ABUSED DEPENDENTS
Under
At the time of Appellant‘s court-martial conviction, payments to dependents began on the date that the convening authority approved a qualifying sentence.
The dependent is entitled to receive transitional compensation payments for a minimum of 12 months, even if the person who committed the dependent-abuse offense has been separated from the armed forces or otherwise no longer is eligible for military pay. See
The payment schedule for dependent-abuse compensation under
A spouse may not receive benefits under both
C. IMPLEMENTATION OF THE PLEA AGREEMENT BETWEEN APPELLANT AND THE CONVENING AUTHORITY
Prior to trial, Appellant and the convening authority entered into a pretrial agreement. Appellant agreed to plead guilty to multiple specifications of sodomy by force with a child and indecent acts with a child. The convening authority agreed to “defer any and all reductions and forfeitures until sentence is approved, suspend any and all adjudged and waive any and all automatic reductions and forfeitures, and pay them to [Appellant‘s] wife to the full extent as allowed by law[.]” The military judge determined that Appellant‘s pleas were provident and trial proceeded on the merits of two contested charges. Ultimately, the military judge found Appellant guilty of all charges to which he had pleaded guilty. As to the contested charges, the military judge found Appellant not guilty of the two specifications of attempted sodomy of a child; guilty, with exceptions and substitutions, of attempted carnal knowledge of a child; and guilty, with exceptions and substitutions, of attempted indecent acts. After conducting a sentencing proceeding, the military judge sentenced Appellant to confinement for 23 years, a dishonorable discharge, and reduction to the lowest enlisted grade.
Following announcement of the sentence, the military judge conducted the required inquiry into sentence-limitation portions of the plea agreement. See R.C.M. 910(f). The military judge asked the parties about the provision in the agreement that payments would be made to Appellant‘s wife to “the full extent as allowed by law.” The parties agreed that the phrase was used to incorporate the statutory six-month maximum period for waived forfeitures under
the effect of the pretrial agreement on the sentence is that the convening authority may approve only so much confinement as extends to 18 years, but may approve the dishonorable discharge, but will defer the reduction until sentence is approved, and will suspend the automatic reduction and
forfeitures and pay them to the spouse of the accused for a period of six months following approval.
Immediately following the court-martial, Appellant began to serve the adjudged period of confinement. See
On the day after the sentence was adjudged, Appellant‘s wife, in a parallel development, filed an application for transitional compensation as an abused spouse under
Before the convening authority acted on the sentence under
In exchange for the accused‘s pleas of guilty, the convening authority will defer any and all reductions and forfeitures until sentence is approved, suspend any and all adjudged and waive any and all automatic reductions and forfeitures; and pay them to Mrs. Lundy, the accused‘s wife, to the full extent as allowed by law; and disapprove all confinement in excess of eighteen (18) years.
The SJA forwarded this recommendation to the convening authority, along with a proposed action. The action, which was signed by the convening authority, reduced the adjudged period of confinement from 23 to 18 years, per the pretrial agreement. As further required by the pretrial agreement, the action did not approve the adjudged reduction in rank. In addition, the action implemented the pretrial agreement‘s requirement for waiver of mandatory forfeitures for a period of six months, specifically directing that “forfeitures be sent to the accused‘s wife.”
The Government implemented the waiver of mandatory forfeitures, although the funds were transmitted to Appellant, contrary to
II. DISCUSSION
A. IMPLEMENTATION OF PRETRIAL AGREEMENTS
In United States v. Perron, 58 M.J. 78 (C.A.A.F.2003), we observed that—
where an accused pleads guilty in reliance on promises made by the Government in a pretrial agreement, the voluntariness of that plea depends on the fulfillment of those promises by the Government. . . .
[W]here there is a mutual misunderstanding regarding a material term of a pretrial agreement, resulting in an accused not receiving the benefit of his bargain, the accused‘s pleas are improvident. In such instances, . . . remedial action in the form of specific performance, withdrawal of the plea, or alternative relief, is required.
Id. at 82 (citations omitted).
In the present case, Appellant pleaded guilty in reliance on a promise by the Government that his confinement would not exceed 18 years, that reductions and forfeitures would be deferred, and that for a six-month period following the convening authority‘s action, any mandatory reduction in pay grade would be suspended so that his wife would
Because this regulatory impediment resulted from a departmental action rather than a statutory mandate, see
During the sixth-month period in which Appellant‘s wife received the waived forfeitures at the E-1 rate, it was still possible to fulfill the agreement. When Appellant brought the discrepancy to the attention of military officials, the Government could have fulfilled the agreement by granting an exception or waiver to suspend the reduction and provide the waived forfeiture at the E-6 rate. Corrective action, however, was not taken.
B. THE RELATIONSHIP BETWEEN ARTICLE 58b WAIVED FORFEITURES AND TRANSITIONAL COMPENSATION UNDER 10 U.S.C. § 1059 IN DEPENDENT-ABUSE CASES
On appellate review, the Court of Criminal Appeals concluded that payment of waived forfeitures to Appellant‘s wife at the E-6 level through suspension of the mandatory reduction was a material part of the agreement between Appellant and the convening authority. Lundy, 58 M.J. at 804. The court stated, however, that remedial action was not necessary because Appellant‘s family had been adequately compensated during the six-month period from other funds, employing a three-step rationale. First, the court noted that dependent-abuse payments had been made to Appellant‘s wife under
The interpretation of applicable law by the court below is inconsistent with the position taken by the Department of Defense in the administration of the compensation program established under
As originally enacted, subsection (e) precluded payment of dependent-abuse benefits in any case until the service member‘s pay and allowances were discontinued.
The subsequent development of the waived forfeitures provision in
The legislation as enacted, however, did not retain the proposed § 1059a, nor did it retain the prohibition against concurrent payment of waived forfeitures under
The DoD/OGC Memorandum specifically considered whether concurrent receipt of waived forfeitures and dependent-abuse compensation under
In the case of payment of transitional compensation by reason of a total forfeiture of pay and allowances pursuant to a sentence of a court-martial, payment of transitional compensation shall not be made for any period for which an order—
(1) suspends, in whole or in part, that part of a sentence that includes forfeiture of the member‘s pay and allowance; or
(2) otherwise results in continuation, in whole or in part, of the member‘s pay and allowances.
Citing the development over time of specific provisions allowing concurrent payment, the Memorandum concluded that subsection (h) “should be limited to cases where a court-martial sentence does not include a punitive separation but results in total forfeitures, whether by explicit provision of the sentence or by automatic total forfeiture as a result of a sentence to confinement.”
In addition, R.C.M. 1101(d), which addresses the convening authority‘s discretionary power to waive forfeitures, is instructive. Subsection (d)(2) lists a wide variety of factors involving financial and other circumstances “that may be considered by the convening authority in determining the amount of forfeitures, if any, to be waived includ[ing]
In view of the statutory provisions, the pertinent legislative history, and administrative implementation, we decline to conclude that Congress intended to preclude dependent-abuse victims from receiving transitional compensation under
C. RESPONSIBILITY FOR IMPLEMENTATION OF THE PRETRIAL AGREEMENT
In the present case, the convening authority had discretion to decide whether forfeitures should be waived in whole or in part. The convening authority exercised his discretion to provide waived forfeitures to Appellant‘s wife, and entered into a pretrial agreement to provide her with waived forfeitures at the E-6 rate. Once Appellant fulfilled his responsibilities under the agreement by providently pleading guilty, Appellant‘s wife was entitled to receive waived forfeitures at the E-6 rate. Waived forfeitures were paid, but only at the E-1 rate, contrary to the agreement.
The court below suggested that even if Appellant‘s wife was entitled to receive both waived forfeitures and dependent-abuse compensation, Appellant cannot complain about implementation of the agreement because, in the court‘s view, Appellant was obligated to prove that he had provided waived forfeitures at the E-1 rate to his wife. Lundy, 58 M.J. at 806. Under
D. REMEDIAL ACTION
As discussed in Section II.A., supra, when the Government does not fulfill a material provision in a pretrial agreement, remedial action is required in the form of specific performance, withdrawal of the plea, or alternative relief. In Perron, we held that an appellate court cannot impose alternative relief on an unwilling appellant. 58 M.J. at 78.
The present case is in a different procedural posture than Perron, where the Court of Criminal Appeals determined that remedial action was necessary and sought to impose it on an unwilling Appellant. Because the lower court in the present case determined that no relief was warranted, the case did not proceed to a point where the court had to reach a definitive conclusion as to: (a) whether specific performance was possible; and (b) whether there were viable options for alternative relief under Perron. Under these circumstances, a remand to the court below is appropriate. See, e.g., United States v. Smith, 56 M.J. 271 (C.A.A.F.2002); United States v. Mitchell, 50 M.J. 79 (C.A.A.F.1999).
The court below should consider whether it has authority to suspend a reduction in pay grade for six months, or whether the Govern-
III. DECISION
The decision of the United States Army Court of Criminal Appeals is reversed. The case is returned to the Judge Advocate General for remand to the Court of Criminal Appeals for further consideration in light of this opinion.
CRAWFORD, Chief Judge (concurring):
The Court of Criminal Appeals should determine if this case is distinguishable from United States v. Perron1 because that record established that the timing of the payment was important. On January 15, 1999, Perron entered into a pretrial agreement that required the convening authority to waive all automatic forfeitures and pay those to Perron‘s family. On March 8, 1999, shortly after the convening authority‘s action, the defense counsel sent a clemency request to the convening authority noting that his family had not been paid the forfeitures and that his “family cannot survive financially without the aid.” 2 He asked for relief in the form of the payment of forfeitures to his family or immediate release from jail. On March 11, 1999, the convening authority responded that he had sent a letter to the Defense Finance and Accounting Service (DFAS) requesting a waiver of all forfeitures and payment to his dependents. DFAS responded that that was not possible because he had entered a no-pay status when sentencing occurred and he was confined. Thus, because there were no forfeitures available, none could be paid to his family.
After the convening authority‘s action and the response from DFAS, Perron again sought relief from the Coast Guard Court of Criminal Appeals.
Perron clearly noted on the record his unwillingness to receive late payment. However, where timing is not critical to specific performance, that is, payment plus interest satisfies the agreement, there is no reason to permit withdrawal of the plea. The court below should determine the materiality of the timing and whether this case is different from Perron. A payment at this time may constitute specific performance.
While it is important for the Court to note its interpretation of