United States v. Pilkington
51 M.J. 415
C.A.A.F.
1999
Check Treatment

*1 STATES, Appellee, UNITED PILKINGTON, Corporal, E. Lance

John Corps, Appellant.

U.S.

No. 98-0512.

Crim.App. No. 96-2393.

U.S. Court

the Armed Forces. 17,

Argued Dec. 9, Sept. Decided C.J., COX, opinion delivered the GIERKE,

Court, in which CRAWFORD J., JJ., SULLIVAN, filed a dissent- joined. J., joined. opinion, which Appellant: Lieutenant Commander For JAGC, (argued); Lofton, USN Lieuten- L.J. Nest, JAGC, Jeffrey K. Van USNR. ant Major Fleming, R. Appellee: For Clark Sandkuhler, K.M. (argued); USMC Colonel JAGC, USMC, Myers, D.H. and Commander (on brief); Lieutenant Commander USN Jones, JAGC, Blankenship Nancy USN. opinion of Judge COX delivered Chief the Court. convicted, pursuant to his

Appellant was conspiracy pleas special subordinates, maltreatment of to maltreat (5 specifications), subordinates (2 statement, specifi- and assault false official cations). 81, 93, 107, and Uniform Arts. Justice, Military §§ Code 928, respectively. by appellant to decide asked We are authority had the power approve post-trial modifications See 50 provided Appellant’s original adjudged pleas, any for his suspended for a punitive would following the date period of 12 months Appellant received sentence trial. discharge, confinement for 150 *2 416

days, pay per sphere all, forfeiture of month for attendant to $550.00 confinement. After months, grade 4 and reduction in to E-l. appellant already in brig was when he trial, appellant approached After the conven- proposed bargain. his question The and, authority ing contrary to the advice of appellant operating whether was of his own counsel, his defense offered to his bywill proposing free new suspended discharge in bad-conduct return being while confined. cap period for a on his confinement for a of question We answer in the affirmative. days. convening authority The agreed, appellant received a bad-conduct dis- Appellant argues unsuspended that an charge. discharge is an pun- increased Here, however, appellant This is not the ishment. first time that had the this Court post-trial agreements, has considered counsel, or although advice and assistance of pretrial agreements modifications to made appellant ignore chose to his advice on this post-trial. recently, Most in United States v. Moreover, appellant already matter. knew Dawson, 51 MJ 411 approved we that he discharge had received a bad-conduct use anof that was reached period days. confinement for a of 150 It trial, under the circumstances of that case. solely appellant’s was approach choice to supra at the accused was bargain for less con- fully approached informed and convening decided, Appellant finement. after consult- authority, with the assistance and advice of counsel, spending days with that 60 more counsel, in negotiate order to an brig was more onerous than the bad- give up rights certain from her first court- discharge. conduct That personal was his martial in order to benefit from not being make, choice to and it is not for tous substi- tried a second separate court-martial for a judgment personal tute our on this matter offense. We held an because arms- place Acevedo, of his. See United States length conducted, negotiation had been there 169MJ was no reason not to affirm Dawson’s deci- sion agreement. to enter into the appellant’s Because counsel advised action, against such there is no issue of lack Similarly, as with other cases involv counsel, of or ineffective assistance coun ing negotiations between an accused and the sel, might that appel factor whether convening authority, we look to whether the lant intelligently entered into this decision. stripped accused has been of substantial v. Pilkington, rights, has been coerced into a post- .1998). 2 (N.M.Ct.Crim.App 525 n. agreement, or has somehow otherwise deprived been process of his due rights. See Appellant upon took it himself to enter into supra, negotiations. these He received the benefit 52MJ There is bargain. Regardless his of the advisabili- deprivation no such under the circumstances ty decision, of his legal there is no error or of this case. deprivation process of due under these cir- Appellant may very cumstances. have question This case focuses on the believed, believe, and still that circum- his disparate positions bargaining be discharge stances a bad-conduct not as appellant tween and the Government tainted detrimental as the adverse administrative At the time that may he have received. Under entered into this with the Govern circumstances, these it is not our role to ment, already he was serving beginning second-guess appellant’s personal as choice of his sentence to confinement. This Court to what course of action was better for him. is therefore concerned about whether his Appellant any was not denied dealings his substan- prod Government were a 59(a), fully rights. UCMJ, uct tial Art. informed and considered deci 859(a). product § sion or were a of the coercive atmo- Orser, Navy- Cooke of the United States decision authorized Corps subsequent of Criminal authority, after affirmed. agreed-to-punish- his to alter SULLIVAN, Judge, with whom Swift, MJ *3 See v. ment. Waller joins (dissenting): Judge, 1990). (CMA majority opinion sanctions pretrial agreement scrutiny alteration, of a Judicial simply because such an in the by judge is established a trial assent request do Mutual a so. submitted system. military justice United States alone, however, not parties sufficient of the (1997). Yet, today, Bartley, 47 MJ pretrial valid. to render pretrial the majority allows alteration of 142. generally by of a this case means sum, pretrial agreement was In judicial without such scruti- trial modification ritu- “empty into an undermined and turned ap- ny. that the voluntariness of It admits sup- post-trial agreement al” because essential; pellant’s post-trial agreement it. planted however, it that voluntariness based assesses States v. United appeal and only parties’ arguments on the on Allen, 8 USCMA CMR post-trial agreement terms of the itself. This has no authenticated record on effect, ignores majority this Court’s voluntariness, scope, judge which to mandating judicial scrutiny pre- precedent legality later There is no of the agreements and the President’s orders 910(f)(1) (4), judicial scrutiny agree- pretrial scrutiny RCM value to for such under — Courts-Martial, you for can such scruti- Manual United ment at trial when evade (1995 ed.).1 Green, 1 MJ unsupervised United States v. ny by of an means (CMA 1976); King, United States 3 agreement. Accordingly, I would remand (CMA 1977); Daw- MJ 458 United States v. DuBay2 hearing to determine this case son, MJ 142 providence under States v. Green and United States v. bound the United King, supra. both in this case. Cf. proceeding charge connec- Appellant’s the re- and the vacation 1. case stands contrast cently agree- decided United States v. with the initial court-martial. That tion 1999), (CMA 411 convening authority's where Court sanctioned ment was deemed "collateral to court-martial ac- Id. at and within the command structure.” pending charge in a second cused to withdraw exchange for waiv- court-martial the accused’s DuBay, States v. 17 USCMA any complaint concerning post-apprehen- er of CMR pending sion confinement in connection with the