U.S. v. Tate, 64 M.J. 269

Trial Stages: Merits: Pretrial Agreements

1. RCM 705(c), which governs the scope of pretrial agreements, identifies both permissible and prohibited terms and conditions; with respect to prohibited terms, RCM 705(c) states that a term or condition in a pretrial agreement shall not be enforced if it deprives the accused of the right to counsel, the right to due process, the right to challenge the jurisdiction of the court-martial, the right to a speedy trial, the right to complete sentencing proceedings, and the complete and effective exercise of post-trial and appellate rights
2. RCM 705(c)(1)(B) does not preclude an agreement to waive rights that may be waived in collateral or unrelated proceedings, such as the right to waive an administrative discharge board hearing, as provided in applicable administrative regulations
3. under his pretrial agreement in which all confinement in excess of 50 years would be suspended, appellant agreed to waive both mandatory and discretionary consideration by the Navy Clemency and Parole Board for twenty years and to decline clemency or parole if offered during that period; under the Board’s rules, a person serving appellant’s sentence -- confinement for fifty years -- would be eligible for clemency consideration after five years, and for parole consideration after ten years; with respect to the requirement to refuse clemency or parole, the court of criminal appeals held that those terms were unenforceable as a violation of public policy, because the convening authority would be usurping the service secretary’s authority and the President’s authority to exercise their independent discretion in granting clemency; that decision is not challenged here; with respect to the agreement to not request clemency or parole, the CAAF found that RCM 705(c)(1)(B) precluded the use of pretrial agreement terms inconsistent with the complete and effective exercise of post-trial and appellate rights and that any terms and conditions that would deprive appellant of parole and clemency consideration under generally applicable procedures were unenforceable under RCM 705(c)(1)(B)

Trial Stages: Appeals: Remedies › Generally

1. by its terms, RCM 705(c)(1)(B) provides that an impermissible term or condition in a pretrial agreement shall not be enforced; in some cases, the presence of an impermissible term requires an appellate court to void the entire agreement and authorize a rehearing; in other cases, an impermissible term may be treated as null without impairing the remainder of the agreement; in the present case, in view of the agreement of both parties on this matter, the terms and conditions that would deprive appellant of parole and clemency consideration under generally applicable procedures may be stricken without impairing the balance of the agreement and the plea

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether a condition of a pretrial agreement violates RCM 705(c)(1)(B) is a question of law that an appellate court reviews de novo