U.S. v. Smead, 68 M.J. 44

First Principles: Constitutional Matters: Generally

1. a PTA in the military justice system establishes a constitutional contract between the accused and the convening authority; in a typical PTA, the accused foregoes certain constitutional rights in exchange for a reduction in sentence or other benefit; as a result, when interpreting PTAs, contract principles are outweighed by the Constitution’s Due Process Clause protections for an accused; in a criminal context, the government is bound to keep its constitutional promises

First Principles: Constitutional Matters: Due Process

1. a PTA in the military justice system establishes a constitutional contract between the accused and the convening authority; in a typical PTA, the accused foregoes certain constitutional rights in exchange for a reduction in sentence or other benefit; as a result, when interpreting PTAs, contract principles are outweighed by the Constitution’s Due Process Clause protections for an accused; in a criminal context, the government is bound to keep its constitutional promises
2. where a plea is not knowing and voluntary, it has been obtained in violation of due process and is therefore void

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. at trial, the military judge must ensure that the accused understands the PTA, the parties agree to the terms of the agreement, the agreement conforms to the requirements of RCM 705, and the accused has freely and voluntarily entered into the agreement and waived constitutional rights
2. the military judge shall not accept a plea of guilty without first determining that the plea is voluntary

Military Justice Personnel: Convening Authority: Generally

1. an agreement in a PTA for a convening authority to withdraw and dismiss certain charges with prejudice upon announcement of sentence is not a legal nullity; the power of a convening authority to dismiss withdrawn charges with prejudice is consistent with the powers granted to convening authorities by Congress and the President in the final disposition of charges; for example, a convening authority may: (1) direct action resulting in a finding of not guilty by entering into a PTA providing that the prosecution will present no evidence on a charge under RCM 705(b)(2)(D); (2) grant transactional immunity under RCM 704 that precludes trial by court-martial of an immunized offense; and (3) disapprove any finding by a court-martial and substitute either a lesser included offense or a finding of not guilty under Article 60(c)(3), UCMJ
2. RCM 705(d)(4)(B) permits a convening authority to withdraw from a PTA if findings are set aside because a plea of guilty entered pursuant to the agreement is held improvident on appellate review; the rule establishes a two-part test in which the decision of the appellate court must: (1) set aside findings; and (2) do so because the plea was improvident
3. at a rehearing on findings and sentence, convening authority could not revive charges that had been dismissed with prejudice upon announcement of sentence at appellant’s first court-martial pursuant to a PTA; the remand for a rehearing did not return the parties to status quo ante, but was instead based on the government’s failure to comply with a PTA term involving the effective date of the reduction in rank

Trial Stages: Pretrial: Charges and Specifications

1. as a general matter, withdrawal of charges, by itself, does not preclude reinstatement of the withdrawn charges in a subsequent trial unless the withdrawal was for an improper reason
2. at a rehearing on findings and sentence, convening authority could not revive charges that had been dismissed with prejudice upon announcement of sentence at appellant’s first court-martial pursuant to a PTA; the remand for a rehearing did not return the parties to status quo ante, but was instead based on the government’s failure to comply with a PTA term involving the effective date of the reduction in rank

Trial Stages: Merits: Pleas, generally

1. where a plea is not knowing and voluntary, it has been obtained in violation of due process and is therefore void

Trial Stages: Merits: Guilty Pleas

1. the military judge shall not accept a plea of guilty without first determining that the plea is voluntary
2. in this case, the record did not raise a substantial question regarding the voluntariness of appellant’s plea, where despite the erroneous reinstatement at the rehearing of charges dismissed with prejudice pursuant to a PTA in appellant’s first court-martial, appellant did not assert at the rehearing that revival of the charges would compromise his ability to make a voluntary decision with respect to pleas or a plea agreement, the reinstated charges to which appellant pleaded not guilty were again withdrawn with prejudice at the rehearing, appellant’s second PTA contained generally more favorable terms than his original PTA, and appellant told the military judge during the providence inquiry that he had voluntarily entered in to the plea agreement

Trial Stages: Merits: Pretrial Agreements

1. a PTA in the military justice system establishes a constitutional contract between the accused and the convening authority; in a typical PTA, the accused foregoes certain constitutional rights in exchange for a reduction in sentence or other benefit; as a result, when interpreting PTAs, contract principles are outweighed by the Constitution’s Due Process Clause protections for an accused; in a criminal context, the government is bound to keep its constitutional promises
2. at trial, the military judge must ensure that the accused understands the PTA, the parties agree to the terms of the agreement, the agreement conforms to the requirements of RCM 705, and the accused has freely and voluntarily entered into the agreement and waived constitutional rights
3. appellant bears the burden of establishing that a PTA term is material and that the circumstances establish governmental noncompliance; in the event of noncompliance with a material term, an appellate court considers whether the error is susceptible to remedy in the form of specific performance or in the form of alternative relief agreeable to appellant; if such a remedy does not cure the defect in a material term, the plea must be withdrawn and the findings and sentence set aside
4. under RCM 705(a), an accused and the convening authority may enter into a PTA in accordance with the provisions of RCM 705, subject to such limitations as the Secretary concerned may prescribe; RCM 705(b) provides that a PTA may include a variety of promises by the accused and the convening authority; the phrase “may include” reflects that the President has not limited the nature of agreements under the rule to the items listed in RCM 705(b); among the promises that may be made by an accused, the rule includes: (1) a promise to plead guilty to one or more charges and specifications, and (2) a promise to fulfill such additional terms or conditions which may be included in the agreement and which are not prohibited under the rule; among the promises that may be made by a convening authority, the rule includes: (1) a promise to withdraw one or more charges or specifications from the court-martial; (2) a promise to have the trial counsel present no evidence as to one or more specifications or portions thereof; and (3) a promise to take specified action on the sentence adjudged by the court-martial; under RCM 705(c)(1), a term or condition shall not be enforced: (1) if the accused did not freely and voluntarily agree to it; and (2) if it deprives the accused of the right to due process or certain other expressly enumerated rights; RCM 705(c)(2) adds that the prohibition on deprivation of certain rights in subsection (c)(1) does not preclude a voluntary agreement to: provide a stipulation of fact; testify in a subsequent proceeding; provide restitution; conform conduct to probation conditions through the period of any suspended sentence; or waive procedural requirements with respect to an investigation under Article 32, the composition of the court-martial, or the personal appearance of sentencing witnesses; the limitations of RCM 705(c)(1) are the only express limitations on terms of PTAs under the rule; other limitations may be provided under departmental regulations
5. RCM 705, which governs PTAs, is not a rule of exclusion; RCM 705 provides broad authority as to the terms that the parties “may include” in an agreement; dismissal with prejudice as a term of a PTA does not come within the few express prohibitions in the rule
6. an agreement in a PTA for a convening authority to withdraw and dismiss certain charges with prejudice upon announcement of sentence is not a legal nullity; the power of a convening authority to dismiss withdrawn charges with prejudice is consistent with the powers granted to convening authorities by Congress and the President in the final disposition of charges; for example, a convening authority may: (1) direct action resulting in a finding of not guilty by entering into a PTA providing that the prosecution will present no evidence on a charge under RCM 705(b)(2)(D); (2) grant transactional immunity under RCM 704 that precludes trial by court-martial of an immunized offense; and (3) disapprove any finding by a court-martial and substitute either a lesser included offense or a finding of not guilty under Article 60(c)(3), UCMJ
7. a reviewing court may cure a government breach of a PTA in several ways: requiring specific performance of the initial PTA, providing the appellant with alternative relief, providing an adequate remedy to cure the breach, or allowing withdrawal of the pleas
8. RCM 705(d)(4)(B) permits a convening authority to withdraw from a PTA if findings are set aside because a plea of guilty entered pursuant to the agreement is held improvident on appellate review; the rule establishes a two-part test in which the decision of the appellate court must: (1) set aside findings; and (2) do so because the plea was improvident
9. at a rehearing on findings and sentence, convening authority could not revive charges that had been dismissed with prejudice upon announcement of sentence at appellant’s first court-martial pursuant to a PTA; the remand for a rehearing did not return the parties to status quo ante, but was instead based on the government’s failure to comply with a PTA term involving the effective date of the reduction in rank

Trial Stages: Appeals: Harmless / Prejudicial Error

1. error at rehearing in allowing reinstatement of charges that had been dismissed with prejudice upon announcement of sentence at appellant’s first court-martial pursuant to a PTA was harmless, where appellant was not prejudiced because the convening authority properly dismissed those charges with prejudice at the rehearing

Trial Stages: Appeals: Remedies › Generally

1. appellant bears the burden of establishing that a term in a PTA is material and that the circumstances establish governmental noncompliance; in the event of noncompliance with a material term, an appellate court considers whether the error is susceptible to remedy in the form of specific performance or in the form of alternative relief agreeable to appellant; if such a remedy does not cure the defect in a material term, the plea must be withdrawn and the findings and sentence set aside
2. a reviewing court may cure a government breach of a PTA in several ways: requiring specific performance of the initial PTA, providing the appellant with alternative relief, providing an adequate remedy to cure the breach, or allowing withdrawal of the pleas

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

1. when an appellate issue concerns the meaning and effect of a PTA, interpretation of the agreement is a question of law, subject to review under a de novo standard; when appellant contends that the government has not complied with a term of the agreement, the issue of noncompliance is a mixed question of fact and law
2. appellant bears the burden of establishing that a PTA term is material and that the circumstances establish governmental noncompliance; in the event of noncompliance with a material term, an appellate court considers whether the error is susceptible to remedy in the form of specific performance or in the form of alternative relief agreeable to appellant; if such a remedy does not cure the defect in a material term, the plea must be withdrawn and the findings and sentence set aside
3. an appellate court reviews a military judge’s acceptance of a plea for abuse of discretion, and it applies the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea