U.S. v. Smith, 56 M.J. 271

Trial Stages: Merits: Pretrial Agreements

1. when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled; the accused is entitled to the benefit of any bargain on which his guilty plea was premised
2. the military judge must ascertain the understanding of each party to a pretrial agreement during the inquiry into the providence of the plea, and after imposing sentence, the military judge must address the parties’ understanding of any limitations on the sentence in order to assure that there is a mutual agreement
3. if the military judge determines that the accused does not understand the material terms of a pretrial agreement, or that the parties disagree as to such terms, the military judge shall conform, with the consent of the Government, the agreement to the accused's understanding or permit the accused to withdraw the plea
4. when the issue is whether the collateral consequences of a court-martial constitute a material component of a pretrial agreement, a guilty plea may be withdrawn only when the collateral consequences are major and the appellant's misunderstanding of the consequences (a) results foreseeably and almost inexorably from the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
5. in the event of a misunderstanding as to a material term in a pretrial agreement, the remedy is either specific performance of the agreement or an opportunity for the accused to withdraw from the plea; the Government may provide alternative relief if it will achieve the objective of the agreement
6. where there has been a mutual misunderstanding as to a material term, the convening authority and an accused may enter into a written post-trial agreement under which the accused, with the assistance of counsel, makes a knowing, voluntary, and intelligent waiver of his right to contest the providence of his pleas in exchange for an alternative form of relief
7. where the record demonstrates that all participants in the proceeding proceeded on the assumption that appellant’s pay would provide the basis upon which the forfeiture protection provisions of the pretrial agreement would be implemented, and where in fact appellant was entitled to no pay because he was held beyond his term of service, there was a misunderstanding as to a material term in a pretrial agreement
8. remedial action is required where the circumstances reflect pleas that rest in a significant degree on an agreement with the Government that was a material part of the consideration, and the Government has not fulfilled its part of the agreement
9. assuming that the bargained-for benefit of a pretrial agreement is outside the authority of the Government to provide, it is necessary to determine whether some appropriate alternative relief is available as an adequate means of providing appellant with the benefit of his bargain; if such appropriate alternative relief is available, the Court of Criminal Appeals may affirm the findings and so much of the sentence that will reflect this relief; if not, in the absence of appellant having received his full consideration in return for his pleas of guilty, the court must set aside the findings and sentence and authorize a rehearing