United States v. Clark

17 C.M.A. 26, 17 USCMA 26, 37 C.M.R. 290, 1967 CMA LEXIS 313, 1967 WL 4240

• Court: United States Court of Military Appeals
• Decided: May 5, 1967
• Docket: No. 19,826
• Status: Published

Opinions

Opinion of the Court

Quinn, Chief Judge:

Before a general court-martial, the accused pleaded guilty to several offenses in violation of the Uniform Code of Military Justice, and was sentenced to a bad-conduct discharge, reduction to grade E-l, and confinement at hard labor for six months. The convening authority approved the sentence as adjudged. On this appeal, the accused contends he was not credited with the period of his pretrial confinement, as provided by his pretrial offer to plead guilty.

During an unauthorized absence, the accused was apprehended by agents of the Federal Bureau of Investigation. He was confined in the brig at Treasure Island, San Francisco, California. A week after he was served with the charges, and ten days before his case came on to be heard, the accused submitted to the convening authority an offer to plead guilty to all the charges. The offer contained the following statement as to the convening authority’s action on review of the record of the impending trial:

"Sentence as approved by Convening Authority agreeable to accused

“1. Punitive Discharge — BCD.

“2. Confinement or Restraint 10 mos. confinement at hard labor, credit will be given for the period of pretrial confinement served.

“3. Forfeiture or Fine — Forfeiture of $75.00 per month for 10 mos.

“4. Reduction to E-l.”

Appellate defense counsel contend the offer, which was approved by the convening authority, contemplated that the credit for pretrial confinement would be applied against any confinement adjudged by the court-martial, regardless of its duration. If the agreement is so construed, the convening authority’s action does not conform to it because no deduction for pretrial confinement was made from the six months adj'udged by the court-martial. See United States v Stovall, 16 USCMA 291, 36 CMR 447. As the defense views the agreement, therefore, the credit provision is a separate and distinct benefit that had to be accorded the accused by the convening authority in his review of the case. The Government contends the accused’s interpretation of the pretrial agreement is contrary to its plain language and manifest import. It reads the credit clause as an integral part of the provision for confinement for ten months, and interprets it as applying only if the confinement adjudged by the court-martial was ten months or more. In its view, the offer contemplated only the possibility that the court-martial would adjudge confinement for more than ten months, which would then be reduced by the convening authority to ten months, less such time as the accused spent in pretrial confinement.

A careful reading of the offer supports the Government’s interpretation. The record indicates it was so understood at trial. The agreement was submitted to the law officer in the out-of-court hearing to determine the vol-untariness of the accused’s proposed plea of guilty and his understanding of its meaning and legal consequences. Referring to the particulars of punishment indicated in the offer, the law officer restated them as follows: “Do you understand . . . the convening authority has agreed to approve a sentence which does not exceed a punitive discharge, amounting to a bad conduct discharge, ten months confinement at hard labor — credit being given for the period of pretrial confinement served?” (Emphasis supplied.) The accused and his counsel indicated they understood the agreement in that light and were satisfied with it.

The maximum punishment authorized for the offenses charged included a dishonorable discharge and confinement at hard labor for two and one-half years. As the Government observes, the references in the offer to a ten-month limit on forfeitures, as well as confinement, demonstrate that the accused and his counsel did not expect the court-martial to adjudge a lesser period of confinement or a lesser period of forfeitures. The court-martial was more lenient than anticipated. This unexpected result was probably achieved by the quality of the defense sentence presentation, which emphasized the length of the accused’s pretrial confinement as the “first” of several factors the court should take “into consideration;” but whatever the reason, the sentence adjudged by the court-martial did not change the meaning of the pretrial agreement. According to its terms, after the convening authority reviewed the sentence, the accused was not to be subject to confinement for more than ten months, less the period of his pretrial restraint. As the district legal officer noted in his post-trial advice to the convening authority, “the sentence imposed by the court ... is less than that agreed to in the pretrial agreement.” Consequently, in approving the sentence, the convening authority did not approve a period of confinement greater than that specified in the agreement. United States v Monett, 16 USCMA 179, 182, 36 CMR 335.¹

The decision of the board of review is affirmed.

Judge Kilday concurs.

1 In military practice, pretrial confinement may be taken into account by the court-martial and the convening authority. Manual for Courts-Martial, United States, 1951, paragraphs 76 and 88. See also United States v Griffin, 20 CMR 529. Recent changes in Federal civilian criminal law require that credit be given for pretrial confinement. 18 USC § 3568. It may perhaps be appropriate for the President, acting under the authority conferred by Article 36(a), Uniform Code of Military Justice, 10 USC § 836, to conform the military practice to that prevailing in the civilian courts.