Lead Opinion
delivered the opinion of the Court.
I
In this сase, the military judge awarded appellant 240 days (8 months) of credit against the adjudged sentence to confinement, as a result of pretrial conditions on appellant’s liberty not amounting to confinement. Appellant had pleaded guilty pursuant to a pretrial agreement that limited confinement to 3 years (36 months).
In accordance with the pretrial agreement, the convening authority approved confinement of 3 years, less 3 days’ credit for pretrial confinement actually served by appellant. The Court of Criminal Appeals affirmed in an unpublished opinion.
Appellant now contends that the military judgе erred in applying the credit to the adjudged sentence, rather than to the limitation established by the pretrial agreement.
II
Appellant was tried in Baumholder, Germany, on January 27,1997, for offenses committed between November 1995 and August 1996. In limine, he moved to dismiss the Charges and specifications for lack of a speedy trial. See RCM 707, Manual for Courts-Martial, United States (1995 еd.). He also asserted that his pretrial restriction amounted to confinement, and he moved for credit against any approved sentence to confinement. See RCM 305(k). Finally, he contended that his pretrial treatment constituted punishment, in violation of Article 13, Uniform Code of Military Justice, 10 USC § 813, аnd he moved for additional credit against any approved sentence to confinement.
After conducting an evidentiary hearing and considering the various stipulations of fact and memoranda of law submitted by the parties, the military judge denied the motion to dismiss for lack of a speedy trial. In addition, the judge ruled that “the conditions on liberties imposed by the company commander did not amount under the totality of the circumstances to restriction tantamount to confinement.” Further, the judge concluded that there was “no intent on the part of the company сommander and the first sergeant to punish the accused prior to trial.” Indeed, the military judge “commend[ed] the commander and the first sergeant for their actions to ameliorate the accused’s situation while he [appellant] was pending trial.” (Id.)
Nevertheless, “considering as a whole, the accused being deprived of his right to train as an 11 mike [his military occupational specialty], the accused’s service in a squad which basically performed details, and the conditions on the accused’s liberty during the period of time,” the military judge found that appellant “was in fact punished [pretrial], as that term is used in Article 13.” Further, the judge ruled that “the period of such
There are no issues bеfore us concerning the correctness of the judge’s rulings on speedy trial, the conditions of and effects on appellant’s liberty, or the ratable calculation of credit. The only issue before us relates to the point from which the credit against confinement should be aрplied.
Ill
The issue of credit for pretrial confinement and/or punishment has a long history in military law. From its inception, Article 13 has forbidden pretrial punishment, as well as arrest or confinement more rigorous than necessary to assure the accused’s presence at trial. Because pretrial confinement was not considered punishment, there was no automatic credit for pretrial confinement as recently as 1982. United States v. Davidson,
However, in United States v. Allen,
Many opinions over the years have addressed whether restriction or other “conditions on liberty” were equivalent, or “tantamount,” to confinement. E.g., United States v. King,
In United States v. Pierce,
In United States v. Suzuki
IV
None of these cases involving credit against confinement discuss the point from which the sentence is to be reduced by the credit. The answer, however, is quite simple. Pretrial agreements are a product of a bargaining process between an accused and a convening authority. United States v. Acevedo,
Where there is no pretrial agreement in effect, of cоurse, the credit can only be applied against the adjudged sentence; there is no other possibility. The adjudged sentence becomes the maximum punishment. Any and all credits against it must reduce it to that extent. Here, of course, the military judge did just that.
The situation is essentially the same, morеover, where the adjudged sentence to confinement turns out to be less than the sentence cap negotiated in a pretrial agreement. Again, the adjudged sentence becomes the maximum punishment; the pretrial agreement, being higher, does not operate. Any and аll credits can only be applied against the adjudged (lesser) sentence.
Where there is a pretrial agreement that sets out a lesser limitation than that adjudged by the court-martial, however, a different result obtains. Where the agreement establishes a maximum confinement, for еxample, that is less than that adjudged by the court-martial, that lesser limit becomes the maximum total confinement that the accused lawfully can be made to serve. Where portions of that confinement have already been served, actually or constructively, the credit aрplies against the agreement, otherwise the accused’s sentence will exceed the maximum lawful limit.
Thus the question here is, what did the agreement provide? It provided that the convening authority would “[disapprove any confinement adjudged in excess of three (3) years.” (Emphasis added.) The period of time credited by the military judge, however, did not involve confinement, nor was it tantamount to confinement. Therefore, the period in question was not affected by the agreement, and neither the judge nor the convening authority erred in not crediting the time against the agreement limitatiоn.
Servicemembers are not entitled to sentence credit against confinement for any and all time during the pendency of court-martial charges, even if restraints on liberty which are not tantamount to confinement are imposed. Such periods of restraint, however, can оften be useful to the defense in mitigation. Here, for example, the defense was successful in convincing the military judge to reduce the adjudged sentence due to the restraint. No one could have known whether the adjudged sentence would turn out to be greater or lesser than the рretrial agreement. Had the adjudged sentence been lesser than the agreement, the pretrial restraint would have been effective in substantially reducing appellant’s sentence.
Furthermore, the fact of pretrial restraint can be a useful bargaining tool for the defеnse in negotiating an acceptable pretrial agreement: “How about disapproving confinement in excess of 36 months, rather than the 48 months you are proposing, due to the lengthy pretrial restraint the accused has endured.” For all we know, trial defense counsel engaged in exactly such negotiations in this case.
One thing is clear, however. Pretrial confinement, or its equivalent, cannot be bargained away in arriving at a sentence limitation. For it is the Secretary of Defense himself who has mandated that the armed forces comply with federal рractice and credit pretrial confinement. United States v. Allen, swpra. Under the circumstances of this case, however, no error has occurred.
The decision of the United States Army Court of Criminal Appeals is affirmed.
Notes
. The military judge accepted appellant's pleas of guilty to 2 specifiсations of conspiracy to distribute drugs, 2 specifications of absence without leave, and 8 specifications of use, possession with intent to distribute, and distribution of drugs, in violation of Articles 81, 86, and 112a, Uniform Code of Military Justice, 10 USC §§ 881, 886, and 912a, respectively.
. Literally, the judge announced a sentеnce to confinement of 53 months, which he explained included 8 months of credit. The balance of the sentence adjudged included reduction to E-l, total forfeitures, and a dishonorable discharge.
Concurrence Opinion
(concurring in part and in the result).
The majority holds that in a case involving pretrial punishment not tantamount to confinеment, it is appropriate to apply any credit against the sentence adjudged at trial rather than the sentence approved by the convening authority. In the absence of a precedent requiring a different result, I agree that the military judge did not err in this ease.
I note, hоwever, that this result produces an anomaly where there has been a pretrial agreement limiting the maximum confinement that may be approved by the convening authority. If a servicemember has been sub
In the present case, the improper punishment involved actions not tantamount to confinement, so the credit was not applied against the maximum sentence imposable under the pretrial agreement, but instead was applied against the adjudged sentence. Because the adjudged sentence (whether designated as 63 or 51 months), as reduced by the 8-months’ credit was greater than the 36 months provided for in the pretrial agreement, appellant received no relief, despite the military judge’s determination that he had suffered illegal punishment so serious that it warranted 8 months’ confinement credit.
There does not appear to be any significant policy reason that would explain why 8-months’ confinement credit in the case of one type of punishment should be applied against the maximum sentence that could be аpproved by the convening authority (i.e., the maximum imposable under a pretrial agreement), while the credit for another type of punishment is applied against the adjudged sentence without regard to a pretrial agreement. This anomaly is subject to further distortions if considerаtion of the potential initial release date is taken into account. See Larner, supra.
I would hold, prospectively, that confinement credit be applied in the same manner for all types of pretrial confinement and pretrial punishment, and that it be applied against the sentence that may be approved by the convening authority, rather than the sentence adjudged at trial. This would eliminate speculation as to whether the court-martial actually granted relief, and would ensure — under United States v. Suzuki, supra — that an adjudication of illegal pretrial punishment results in effective rеlief.
Concurrence Opinion
(concurring in the result):
This is an unusual ease on its facts because the unlawful pretrial punishment did not entail unlawful pretrial confinement. The military judge felt that a judicial credit was warranted for appellant’s maltreatment. Cf. United States v. Suzuki,
It is clear that the military judge intended that appellant be given 8 months of confinement credit for unlawful pretrial punishment in violation of Article 13, UCMJ. It is just as obvious that he intended this credit be applied to the adjudged sentence. In fact, he specifically denied a motion of appellant to apply this credit to his sentence as approved by the convening authority. Thus, the military judge’s intent to afford a judicial remedy of limited and special nature, while irregular, was not flouted in this case. Cf. Suzuki, supra at 493.