U.S. v. Resch, 65 M.J. 233

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. before a plea of guilty may be accepted, a trial judge is required to advise the accused that his guilty plea waives his constitutional rights to a jury trial, to confrontation of his accusers, and his privilege against self-incrimination; in military practice, Article 45, UCMJ, requires the military judge to address the accused personally and explain the rights he is giving up, and to obtain the accused’s express waiver of these rights; in addition, the military judge is obligated to ensure that an accused understands the provisions of any pretrial agreement, and to ensure that the parties agree to the terms set forth in the agreement; moreover, the military judge must ensure that the accused freely consents to enter into any stipulation of fact or stipulation of expected testimony
2. the military judge erred when he advised the accused that his guilty plea waived his right against self-incrimination with respect to the unauthorized absence offense to which he pleaded guilty and that he retained that right with respect to the greater offense of desertion to which he pleaded not guilty, and then later, when the defense counsel asked the military judge to consider the accused’s providence inquiry statements after the close of the government’s evidence, the military judge concluded that he could consider everything that he had heard up to that point, without further questioning or advising the accused; this, of course, was error because it was inconsistent with the advice the military judge gave the accused on the greater offense of desertion and therefore, beyond the accused’s express waiver of his privilege against self-incrimination
3. military law imposes an independent obligation on the military judge to ensure that the accused understands what he gives up because of his guilty plea and the accused’s consent to do so must be ascertained
4. after having expressly advised the accused that the stipulation of fact entered into in conjunction with his guilty pleas would be used, as indicated in the stipulation’s first paragraph, for the limited purposes of determining the providence of his guilty pleas to unauthorized absence and for determining the sentence, the military judge erred in conducting no inquiry into a later paragraph of the stipulation that suggested a broader use by the prosecution of the stipulation and the included exhibits on the greater offense of desertion; without further inquiry into this paragraph to clarify the apparent inconsistency between it and the first paragraph, there was an insufficient basis to determine that the accused knowingly consented to the use of the stipulation and the adjoining exhibits in the government’s case on the merits of the desertion offense

Trial Stages: Merits: Guilty Pleas

1. before a plea of guilty may be accepted, a trial judge is required to advise the accused that his guilty plea waives his constitutional rights to a jury trial, to confrontation of his accusers, and his privilege against self-incrimination; in military practice, Article 45, UCMJ, requires the military judge to address the accused personally and explain the rights he is giving up, and to obtain the accused’s express waiver of these rights; in addition, the military judge is obligated to ensure that an accused understands the provisions of any pretrial agreement, and to ensure that the parties agree to the terms set forth in the agreement; moreover, the military judge must ensure that the accused freely consents to enter into any stipulation of fact or stipulation of expected testimony
2. the military judge erred when he advised the accused that his guilty plea waived his right against self-incrimination with respect to the unauthorized absence offense to which he pleaded guilty and that he retained that right with respect to the greater offense of desertion to which he pleaded not guilty, and then later, when the defense counsel asked the military judge to consider the accused’s providence inquiry statements after the close of the government’s evidence, the military judge concluded that he could consider everything that he had heard up to that point, without further questioning or advising the accused; this, of course, was error because it was inconsistent with the advice the military judge gave the accused on the greater offense of desertion and therefore, beyond the accused’s express waiver of his privilege against self-incrimination
3. military law imposes an independent obligation on the military judge to ensure that the accused understands what he gives up because of his guilty plea and the accused’s consent to do so must be ascertained
4. after having expressly advised the accused that the stipulation of fact entered into in conjunction with his guilty pleas would be used, as indicated in the stipulation’s first paragraph, for the limited purposes of determining the providence of his guilty pleas to unauthorized absence and for determining the sentence, the military judge erred in conducting no inquiry into a later paragraph of the stipulation that suggested a broader use by the prosecution of the stipulation and the included exhibits on the greater offense of desertion; without further inquiry into this paragraph to clarify the apparent inconsistency between it and the first paragraph, there was an insufficient basis to determine that the accused knowingly consented to the use of the stipulation and the adjoining exhibits in the government’s case on the merits of the desertion offense
5. the accused’s plea to an unauthorized absence terminating on a particular date was provident, notwithstanding the fact that he claimed during the plea inquiry to having contacted his recruiter at an earlier date; accepting the accused’s assertion as true, the record does not reflect that he physically presented himself to military authorities for the purpose of surrendering; as such, the accused set up a mere possibility of a conflict, which does not provide a substantial basis for questioning the plea of guilty to the later termination date

Trial Stages: Merits: Pretrial Agreements

1. before a plea of guilty may be accepted, the military judge is obligated to ensure that an accused understands the provisions of any pretrial agreement, and to ensure that the parties agree to the terms set forth in the agreement; moreover, the military judge must ensure that the accused freely consents to enter into any stipulation of fact or stipulation of expected testimony

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the military judge’s errors in giving the accused inconsistent advice on what the military judge could consider from the stipulation of fact on the merits of the greater offense of desertion and in failing to clarify inconsistent paragraphs in the stipulation as to what he could consider on the merits, were materially prejudicial to the accused’s substantial rights; without the accused’s statements and the facts admitted in the stipulation, the government’s case on desertion consisted solely of testimony from the accused’s company commander that the first time he saw the accused at a formation in his unit following his absence was on a later termination date; this testimony was insufficient to establish the accused’s intent to remain away permanently where the accused’s presence at formation would seem to bely an intent to remain away permanently; this testimony was also insufficient to establish the later termination date where viewing the evidence in the light most favorable to the prosecution, the company commander’s testimony of when he first noticed the accused in formation did not provide legally sufficient evidence that would permit a rational trier of fact to conclude beyond a reasonable doubt that the accused was returned to military control on that date