United States v. Barfield

2 M.J. 136, 1977 CMA LEXIS 10903

• Court: United States Court of Military Appeals
• Decided: February 1, 1977
• Docket: No. 26,547; CM 428401
• Status: Published

Opinions

Opinion of the Court

COOK, Judge:

On a previous appeal, this Court authorized a rehearing for sentencing because of prejudicial error in the denial of a defense request for a continuance to obtain an Army psychiatrist, Dr. Gould, as a witness. 22 U.S.C.M.A. 321, 46 C.M.R. 321 (1973). The question here is the correctness of the trial judge’s denial, at the rehearing, of a defense motion, under paragraph 81b (2), Manual for Courts-Martial, United States, 1969 (Rev.), to suspend the proceeding and refer to this Court the accused’s contention that his plea of guilty at the original trial was improvident.

At a rehearing, the trial judge must proceed in accordance with the mandate of the appellate court. United States v. Yaeger, 15 U.S.C.M.A. 226, 35 C.M.R. 198 (1965). Consequently, when the mandate provides for a rehearing only as to sentence, the trial court cannot vacate an outstanding plea of guilty or otherwise proceed with the case as though a plea of not guilty had been entered. Should the accused challenge the validity of the plea, the trial judge may, if the evidence warrants, suspend the hearing and refer the matter to the appellate authority for such action in regard to the plea as it deems required or appropriate. United States v. Kepperling, 11 U.S.C.M.A. 280, 29 C.M.R. 96 (1960). These general principles provide the theme for paragraph 81b (2) of the Manual,¹ which, in material part, is as follows:

81. REHEARING AND NEW OR OTHER TRIALS.

b. Procedure. .

(2) Rehearings on sentence only. .

No new evidence of guilt or innocence not presented at the original trial shall be presented but the matters covered in [paragraph] 75 are proper. . . . The accused at such a rehearing may not withdraw any plea of guilty upon which the findings of guilty now before the court were based. However, if he establishes that such a plea was improvident ([paragraph] 70b), the rehearing will be suspended and the matter referred to the authority directing the rehearing on the sentence, for appropriate action.

Preliminary to consideration of the merits of the defense contention is whether paragraph 81b (2) is applicable to an accused who asserts only that he has evidence, which, had he presented it at the original trial, might reasonably have led to a finding of not guilty. In Kepperling, at a rehearing of the sentence, the accused moved to withdraw his plea of guilty because he desired to put the Government to its proof. While recognizing that such a change of mind can be effected as of course at a trial of the merits, the Court held that a change of mind which merely compels the Government “to prove one’s criminality does not show improvidence of a plea to the merits.” 11 U.S.C.M.A. at 284, 29 C.M.R. at 100. Six years later, and before the adoption of the 1969 Manual, the Court confronted the problem of post-conviction changes of mind, accompanied by “avowals of innocence.” United States v. Chancelor, 16 U.S.C.M.A. 297, 300, 36 C.M.R. 453, 456 (1966). To reduce such declarations of innocence from the commonplace to the rare, the Court recommended that, before acceptance of a plea of guilty, the trial judge conduct a thorough examination of the accused so that “express admission of factual guilt” by the accused would be a matter of record. Id. The contemplated consequence of this procedure was that “post-trial protestations of innocence” would fall on “deaf ears.” Id.

Although the background notes on the Manual provision do not mention Chancelor,2 the language of paragraph 81b (2) indicates that the draftsmen adopted not only the procedure explicated in Kepperling for the handling of a post-conviction challenge to a plea of guilty, but also Ghancelor’s concept of the effect upon such a challenge of admissions of factual guilt made by the accused during his examination at the original trial on the merits.³ Thus, unlike Article 45(a), Uniform Code of Military Justice, 10 U.S.C. § 845(a), which authorizes disregard of a plea of guilty at a trial of the merits whenever the accused “sets up matter inconsistent” with the plea, or the plea is improvident, or was entered “through lack of understanding of its meaning and effect,” paragraph 81b (2) is available to an accused who can establish the improvidence of his plea, but not to one who only offers matter inconsistent with the plea, which was available to him at the original trial, but which he had been elected not to present. We conclude, therefore, that paragraph 81b (2) does not use the word “improvident” to include all three of the grounds that would, under Article 45(a), override a plea of guilty at a trial of the merits, but is limited to a showing that the “plea was improvident,” which does not include matter inconsistent with the facts admitted by the plea. As the accused’s motion to suspend the rehearing was based solely on the ground that he had evidence inconsistent with the facts he had admitted during the inquiry into his understanding of the elements and circumstances of the offense and conceded by his plea of guilty, it was properly denied by the trial judge.⁴

The decision of the United States Army Court of Military Review is affirmed.

Chief Judge FLETCHER concurs.

1 . Department of the Army Pamphlet 27-2, Analysis of Contents, Manual for Courts-Martial, United States, 1969 (Rev.), at 15-1.

2 . Id.

3 . In United States v. Care, 18 U.S.C.M.A. 535, 538, 40 C.M.R. 247, 250 (1969), the Court reiterated Chancelor’s observations on the consequence of a trial record of the accused’s own “admission of factual guilt.” See also United States v. Dusenberry, 23 U.S.C.M.A. 287, 291, 49 C.M.R. 536, 540 (1975). Cf. Article 73, Uniform Code of Military Justice, 10 U.S.C. § 873, which authorizes a petition for new trial on the ground of “newly discovered evidence.”

4 . The Government and the Court of Military Review responded on the merits to the accused’s contention. We are fully in accord with the American Bar Association Standards Relating to Pleas of Guilty, which indicate that a plea of guilty may be withdrawn after conviction “to correct a manifest injustice.” Id. § 2.1 (1968). With this standard in mind, we are satisfied that the accused’s plea of guilty was the product of a reasoned assessment, with the assistance of defense counsel, of the strength of the evidence of guilt against him. In the circumstances disclosed by the record, what this Court said in United States v. Dusenberry, 23 U.S.C.M.A. 287, 291, 49 C.M.R. 536, 540 (1975), is appropriate:

Unless an accused can allege and prove serious derelictions on the part of his counsel sufficient to show that his plea was not a knowing and intelligent act, he is bound by either his own or his attorney’s assessment of the law and facts when he admits his guilt by his plea.