Lead Opinion
delivered the opinion of the Court.
On February 26, 1997, appellant was tried by a general court-martial composed of a military judge sitting alone at the Naval Trial Service Office Southeast, Corpus Christi Detachment, Corpus Christi, Texas. In accordance with his pleas, he was found guilty of 2 specifications of making and uttering bad cheeks, in violation of Article 123a, Uniform Code of Military Justice, 10 USC § 923a, and obtaining services under false pretenses, in violation of Article 134, UCMJ, 10 USC § 934. He was sentenced to a bad-conduct discharge, confinement for 10 months, total forfeitures, and reduction to pay grade E-l. On April 14, 1997, the convening authority approved the adjudged sentence but, in accordance with a pretrial agreement, he suspended adjudged forfeiture of pay for 12 months with provision for automatic remission and waived automatic forfeitures for 6 months. The Court of Criminal Appeals affirmed the findings and sentence as adjudged and approved. United States v. Williams,
On June 4,1999, this Court granted appellant’s petition for review on three issues:
I. WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL DEFENSE COUNSEL FAILED TO ASCERTAIN AND ADVISE APPELLANT ABOUT THE PRACTICAL CONSEQUENCES OF A MATERIAL PROVISION OF THE PRETRIAL AGREEMENT, PARAGRAPH 3 OF THE MAXIMUM SENTENCE APPENDIX.
II. WHETHER APPELLANT’S PLEAS TO ALL CHARGES AND SPECIFICATIONS WERE IMPROVIDENT BECAUSE APPELLANT WAS ERRONEOUSLY INDUCED INTO PLEADING GUILTY BY AN HONEST AND SUBSTANTIAL MISUNDERSTANDING AS TO A MATERIAL TERM IN THE PRETRIAL AGREEMENT, PARAGRAPH 3 OF THE MAXIMUM SENTENCE APPENDIX.
III. WHETHER THE LOWER COURT ERRED IN REFUSING TO FIND THAT THE MILITARY JUDGE HAD FAILED TO CONDUCT AN ADEQUATE INQUIRY TO DETERMINE IF APPELLANT UNDERSTOOD THE MEANING AND EFFECT OF PARAGRAPH 3 OF THE SENTENCE LIMITATION APPENDIX TO THE PRETRIAL AGREEMENT.
In accordance with the Government’s concession on Issue II, we resolve this question in appellant’s favor and remand this case for a rehearing. See generally United States v. Bedania,
The appellate court below found the facts pertinent to our review of this case. It stated:
The operative provision of the appellant’s pretrial agreement consists of the following language:
3. Forfeiture or Fine: All fines and/or forfeitures will be suspended for a period of twelve (12) months from the date that the sentence is adjudged, at which time, unless sooner vacated, the suspended fines and/or forfeitures will be remitted without further action. This agreement also constitutes a request by the accused for, and approval by the convening authority of, a six-(6) month waiver of automatic forfeitures which may be imposed pursuant to Art. 58b of the UCMJ.
Appellate Exhibit III. The military judge misadvised the appellant that the convening authority was obligated to suspend forfeitures of pay for 10 months from the date of sentencing. Record at 71. The military judge then advised the appellant that the convening authority had agreed to waive for 6 months the automatic forfeitures required by Article 58b, 10 USC § 858b, “the benefit of that waiver being to your dependents. ” Id. The appellant and both counsel indicated their agreement with the military judge’s understanding of the effects of the pretrial agreement. Id.
At the time of the appellant’s court-martial, he was on legal hold since the expiration of his active obligated service 2*295 weeks earlier. Record at 15. Neither the appellant nor his defense counsel were aware of the Department of Defense Regulation which provides that servicemembers on legal hold who are later convicted of an offense under the UCMJ forfeit the right to accrue pay or allowances after the conviction. See Defense counsel’s affidavit dated 4 March 1998. Leave-and-Earning Statements attached to the record of trial via motion indicate that no pay or allowances were disbursed to the appellant after the convening authority took action on the sentence.
Nearly 11 months after his general court-martial the appellant filed with this court an affidavit in which he made the following averments:
1. I entered into a pre-trial agreement with the convening authority in my general court-martial (Case No. 9700848).
2. The only reason I entered into the pretrial agreement was because, in exchange for my pleas of guilty, the convening authority agreed to: 1) suspend all adjudged forfeitures and fines for a period of 12 months, and 2) to waive all automatic forfeitures under article 58b, UCMJ for a period of six months.
3. At the time I entered into the pretrial agreement, I fully expected that my dependent would receive my full pay and allowances for six months after the date of the court-martial.
Post-trial affidavit of George E. Williams, Jr., dated 11 January 1998. In a post-trial affidavit dated 4 March 1998, the appellant’s trial defense counsel indicated that the pretrial agreement provision for suspending adjudged and automatic forfeitures was because the appellant “was concerned that his family would otherwise be without any source of income.” In another post-trial affidavit, dated 17 April 1998, the trial defense counsel indicated that the main concern of the appellant and his family was the confinement which they wanted to limit. The defense counsel stated his belief that the appellant’s assertions “that forfeitures were all that he was concerned with is patently false and misleading.”
United States v. Williams,
Our starting point on this appeal is the Government’s concession that “because appellant did not receive the benefit of his bargain, his pleas were not provident.” Govt’s Answer to Final Brief at 3. It based this concession on the decisions of this Court in United States v. Mitchell,
The Government clearly articulated why the above cases required it to concede this issue. It said:
Based upon this controlling precedent, the Government is constrained to agree that on the facts of this case, appellant’s pleas are improvident. Under Olson, the term in question herein, suspension and waiver of forfeitures, is material because it was interjected into the proceedings by the PTA. Id. at 297. Just as in Olson, all of the parties misunderstood the Government’s ability to comply with this term. Id. This “misunderstanding as to [this material] term gives appellant the right to rescind the agreement.” Id. Accordingly, because appellant did not receive the benefit of his bargain, his pleas are improvident, the findings should be set aside, and appellant should be retried. Mitchell,50 MJ at 82 ; Olson, 25 MJ at 297-98.
Govt. Brief at 8 (footnotes omitted).
It further stated:
Even if this term were collateral, the Government would still be constrained to agree with appellant. As this Court has noted,
When collateral consequences of a court-martial conviction ... are relied upon as the basis for contesting the providence of a guilty plea, the appellant is entitled*296 to succeed only when the collateral consequences are major and the appellant’s misunderstanding of the consequences ... is induced by the trial judge’s comments during the providence inquiry....
United States v. Bedania,12 MJ 373 , 376 (CMA 1982). Here, the military judge specifically told appellant that as a result of the pretrial agreement, the convening authority would suspend the adjudged forfeitures and that automatic forfeitures would be waived for the benefit of appellant’s dependents. (R. 71.) Thus, even if the provision is collateral, appellant is entitled to succeed.
Govt. Brief at 8 n. 1.
This Court’s decision in United States v. Albert,
In Bedania, we delineated the test for determining whether a misunderstanding by an accused of a term in a pretrial agreement could invalidate a guilty plea. We said:
We agree with [U.S. v.] Santos [4 MJ 610 (NCMR 1977)] that the divorce of administrative-discharge proceedings from the military justice system does not inevitably require that a guilty plea be upheld as provident despite the accused’s misapprehension of the possibility or the likelihood that he will be administratively discharged. However, when collateral consequences of a court-martial conviction-such as administrative discharge, loss of a license or a security clearance, removal from a military program, failure to obtain promotion, deportation, or public derision and humiliation-are relied upon as the basis for contesting the providence of a guilty plea, the appellant is entitled to succeed only when the collateral consequences are major and the appellant’s misunderstanding of the consequences (a) results foreseeably and almost inexorably from the language of a pretrial agreement; (b) is induced by the trial judge’s comments during the providence inquiry; or (c) is made readily apparent to the judge, who nonetheless fails to correct that misunderstanding. In short, chief reliance must be placed on defense counsel to inform an accused about the collateral consequences of a court-martial conviction and to ascertain his willingness to accept those consequences.
Turning to appellant’s case, we agree with the Government that it meets these requirements. See United States v. Olson, supra at 297. Where, as here, an accused pleads guilty relying on incorrect advice from his attorney on a key part of the pretrial agreement (entitlement to pay), and the military judge shares that misunderstanding and fails to correct it,
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed; the findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy. A rehearing may be ordered.
Notes
Appellate Exhibit V (R. 74) is a service-record-book entry which was expressly called to the judge’s attention prior to the conclusion of this court-martial. It states, "6 Feb 97: Held involuntarily beyond normal expiration of obligated service awaiting trial by court-martial. Authority MILPERSMAN 1050155.” The charge sheet also shows that he enlisted on February 15, 1991, for 6 years and the date of appellant's trial was February 26, 1997. (R. 45-46; 73-74)
Concurrence Opinion
(concurring in the result):
I concur with reversing this conviction based solely on appellate government counsel’s concession. Presumably, the Government prefers to have the findings of guilt set aside and to shoulder the expense of a rehearing rather than to fashion a remedy to provide appellant the benefit of his plea bargain. See United States v. Mitchell,
Facing a maximum punishment that included, inter alia, 145 years and 6 months’ confinement, appellant negotiated a pretrial agreement with his convening authority. Appellant agreed to plead guilty to making and uttering 29 checks (the value of which exceeded $20,000) with intent to defraud, and to obtaining services (of a value exceeding $1200) under false pretenses. The convening authority agreed to suspend any adjudged confinement exceeding 12 months, and to suspend all forfeitures and fines as well as to waive, for 6 months, automatic forfeitures imposed pursuant to Article 58b, UCMJ, 10 USC § 858b. Neither the defense counsel, trial counsel, staff judge advocate, nor military judge knew that servieemembers, such as appellant, who are held beyond the expiration of their service commitments for trial by court-martial, and are later convicted and incarcerated, are not entitled to pay. See United States v. Albert,
At trial, appellant pled guilty and was sentenced to a bad conduct discharge, confinement for 10 months, total forfeitures, and reduction to E-l. The convening authority approved the sentence and upheld his end of the bargain by suspending all forfeitures of pay for 12 months and waiving all automatic forfeitures required by Article 58b for 6 months. Because he was entitled to no pay, appellant did not reap the benefit of the pretrial agreement as it related to fiscal considerations.
Before the Court of Criminal Appeals, appellant asserted that the only reason he entered into the pretrial agreement was to secure the financial benefits therein, and ensure his family members would receive his full pay and allowances for the 6 months following his court-martial. The Court of Criminal Appeals found otherwise.
I agree with the majority that the issue is whether this appellant understandingly, voluntarily, and intelligently entered into his pretrial agreement. See Brady v. United States,
In my opinion, this ease fits squarely within the four corners of United States v. Albert, supra, a unanimous opinion of this Court which has been overlooked by both counsel and the courts below. The issue in Albert was whether the Government fully complied with the terms of a pretrial agreement, similar in nature to the one in the case sub judice. While this appellant has phrased the granted issue differently from that in Albert, the core question remains identical — voluntariness of the plea. I can find nothing in
Should the Government distinguish Albert and decide that the financial relief for which appellant bargained was material to his guilty plea, it still has the option of making appellant whole in lieu of treating the plea as improvident. See United States v. Olson, supra; United States v. Cooke,
In both United States v. McLaughlin,
Notwithstanding the force .of precedent from this Court, and the decision of the Court of Criminal Appeals below, the Government has elected to support appellant’s position. Accordingly, I concur, albeit reluctantly, with setting aside the findings and sentence.