41 M.J. 736 | N.M.C.C.A. | 1994
TMs ease presents the question of what remedies are available to an appellant whose pretrial agreement contains a provision found, at the appellate level, to be invalid. After striking the offending provision, we provided the appellant the opportumty to withdraw Ms guilty pleas and return to trial to pursue the course of action wMch had been barred by the invalid provision. He chose to forego that opportumty and to persist in his pleas. Accordingly, we find Ms pleas to be provident, and we affirm the findings of guilty and the sentence.
Pursuant to Ms pleas, the appellant was convicted of two incidents of selling cocaine in violation of Article 112a, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 912a. He was sentenced to confinement for 18 months, forfeiture of all pay and allowances, reduction to pay grade E-l, and a dishonorable discharge. The convening authority approved the sentence and suspended all confinement in excess of 6 months for a period of 12 months from the date of trial in accordance with the terms of the pretrial agreement.
The pretrial agreement also contained the following provision:
k. THAT, the defense agrees not to raise a motion to dismiss based on purported demal of the accused’s right to a speedy trial. TMs term originated from the defense. This term is not intended nor should be construed to require the defense to refrain from raising any other motion or defense consistent with other terms of tMs agreement.
Before the appellant entered Ms pleas, Ms counsel filed a motion to dismiss based upon demal of his right to speedy trial. Appellate Ex. I. The motion asserted, inter alia, that the appellant had been held in pretrial confinement awaiting trial in excess of 90 days and presented what appears to be at least a colorable claim that United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166, 1971 WL 12477 (1971), mandated dismissal of the charge against him.
On appeal, we specified the issue of whether this provision was valid and, if not, what was the effect on the appellant’s pleas.
We found merit in the Government’s argument that the appellant’s election of a remedy should be made at the appellate level rather than at a rehearing, but we modified his options somewhat. After determining that the provision in question was prohibited and unenforceable, we struck it and ordered the appellant to advise the Court whether he desired to (1) withdraw his pleas and pursue the motion to dismiss for denial of speedy trial at a rehearing, or (2) abandon the motion to dismiss and persist in his pleas under the pretrial agreement as amended. The analysis below explains why we framed the appellant’s options in this manner.
First, as a preliminary matter, we assessed the effect of this invalid provision on the providence of the appellant’s pleas. In United States v. Jones, 23 M.J. 305 (C.M.A.1987), the Court addressed the propriety of including a waiver of certain pretrial motions as part of a defense-proposed pretrial agreement. The Court held that an otherwise valid guilty plea will rarely, if ever, be invalidated on the basis of plea-agreement provisions proposed by the defense. See also United States v. Zelinsky 24 M.J. 1 (C.M.A. 1987) (provision waiving trial by members not condoned but did not invalidate guilty plea where provision was freely-conceived defense product). Likewise, in this ease, although the provision is prohibited by regulation, it was proposed by the defense and there is no evidence of “over-reaching” by the Government that led to the defense proposal. Jones, 23 M.J. at 307. Finally, the appellant has not claimed on appeal that his pleas were rendered improvident by the presence of this provision. In sum, we have examined the record and the law and we find no basis to question the providence of the appellant’s pleas.
Next, we turned to the effect of striking the invalid provision on the appellant’s right to litigate his speedy trial motion. Normally, we would conclude that he waived that right by his affirmative decision on the record not to pursue that motion. United States v. Britton, 26 M.J. 24 (C.M.A.1988); R.C.M. 907(b)(2)(B). However, it is clear that his decision was the direct result of the provision we have now found to be invalid and unenforceable. Accordingly, we will not apply waiver.
Furthermore, we cannot determine the validity of the speedy trial issue at this juncture because the issue was not adequately developed below. Therefore, and in view of our finding that the provision is invalid, the appellant must now be afforded that to which he was entitled at trial: the option to pursue the motion untethered to the pretrial agreement. A reasonable and efficient
Finally, assuming for the moment that the appellant elected to litigate the motion at a rehearing, we have examined the effect that decision would have had on the status of the pleas and findings. As noted above, we have already concluded that his pleas are provident. Yet, we would view maintaining the guilty pleas and findings intact as incompatible with returning the case for a rehearing to litigate the speedy trial motion. The reason for this conclusion is that it is now the law that a finding of guilty based upon a guilty plea waives appellate review of a military judge’s denial of a motion to dismiss for lack of speedy trial.
in the end, the appellant got what he bargained for — a relatively low limitation on unsuspended confinement. In addition, he has been provided the opportunity to recover what he voluntarily gave up to get that bargain. Similarly, although not entitled to enforcement of the speedy trial provision, the Government retained the benefits of its bargain — avoiding speedy trial litigation and a contested trial. No party to this court-martial can legitimately cry “foul” at this resolution.
The appellant’s original assignments of error have all been decided by appellate decision adversely to his position and therefore are devoid of merit. Weiss v. United States, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994); United States v. Mitchell, 39 M.J. 131 (C.M.A.1994), cert. denied, — U.S.-, 115 S.Ct. 200, 130 L.Ed.2d 131 (1994). Accordingly, the findings of guilty and the sentence, as approved on review below, are affirmed.
. Since the date of trial, Burton has been overruled by United States v. Kossman, 38 M.J. 258 (C.M.A.1993), which applies retroactively. 38 M.J. at 261. Consequently, even though the rule that would have been applied on the date of trial would have been Burton, our review and any subsequent re-litigation of this speedy trial issue would apply the “reasonable diligence” standard
. WHETHER THE DEFENSE-ORIGINATED PRETRIAL AGREEMENT PROVISION "NOT TO RAISE A MOTION TO DISMISS BASED ON PURPORTED DENIAL OF THE ACCUSED’S RIGHT TO A SPEEDY TRIAL” VIOLATED RULE FOR COURTS-MARTIAL 705(c)(1)(A), (B), UNITED STATES V. CUMMINGS, 17 U.S.C.M.A. 376, 38 C.M.R. 174, 1968 WL 5361 (1968), AND, IF SO, WHETHER THE APPELLANT’S PLEA WAS RENDERED IMPROVIDENT, OR WHETHER HE SUFFERED ANY OTHER FORM OF PREJUDICE AS A RESULT. (CITATIONS OMITTED.)
. We also find that the invalid provision did not orchestrate the appellant’s court-martial so as to turn it into an "empty ritual.” United States v. Holland, 1 M.J. 58, 60 (C.M.A.1975); United States v. Jennings, 22 M.J. 837 (N.M.C.M.R. 1986).
. Unless the accused enters a conditional plea of guilty under R.C.M. 910(a)(2), specifically preserving for appeal his motion to dismiss for denial of speedy trial. That option, however, is not the appellant's, unilaterally. The Government would have to consent to such a conditional plea.