United States v. Crowley

3 M.J. 988, 1977 CMR LEXIS 744

• Court: U.S. Army Court of Military Review
• Decided: July 20, 1977
• Docket: SPCM 12550
• Status: Published

Opinions

OPINION OF THE COURT

MOUNTS, Judge:

The issue to be decided in this case is whether the appellant’s plea of guilty was provident when analyzed under the guidelines established by the United States Court of Military Appeals in United States v. Green.1

In the Green case, the Court stated: “We will view a failure to conduct a plea bargain inquiry as a matter affecting the providence of the accused's plea . . .”²

We find that the military judge did conduct a plea bargain inquiry in our case. The inquiry, however, did not contain all of the specific areas of inquiry set out in Green. In Green the Court held:

“We, therefore, hold that as part of the Care inquiries . . . , the trial judge shall ascertain whether a plea bargain exists and, if so, shall conduct an inquiry into the pretrial agreement in accordance with the Elmore guidelines previously enunciated. Inquiry into the actual sentence limitations specified in the plea bargain should be delayed until after announcing sentence where the accused elects to be sentenced by the military judge rather than a court with members. »³

The Elmore⁴ guidelines are also stated in the Green decision and provide the following rules:

“[T]he trial judge must shoulder the primary responsibility for assuring on the record that an accused understands the meaning and effect of each condition as well as the sentence limitations imposed by any existing pretrial agreement. .

In addition to his inquiry with the accused, the trial judge should secure from counsel for the accused as well as the prosecutor their assurance that the written agreement encompasses all of the understandings of the parties and that the judge’s interpretation of the agreement comports with their understanding of the meaning and effect of the plea bargain. . . . ”

The United States Court of Military Appeals gave as its policy considerations in the Green case for requiring a plea bargain inquiry the following reasons:

“Judicial scrutiny of plea agreements at the trial level not only will enhance public confidence in the plea bargaining process, but also will provide invaluable assistance to appellate tribunals by exposing any secret understanding between the parties and by clarifying on the record any ambiguities which lurk within the agreements. More importantly, a plea bargain inquiry is essential to satisfy the statutory mandate that a guilty plea not be accepted unless the trial judge first determines that it has been voluntarily and providently made. Finally we believe trial judges must share the responsibility, which until now has been borne by the appellate tribunals, to police the terms of pretrial agreements to insure compliance with statutory and decisional law as well as adherence to basic notions of fundamental fairness.”⁵

The military judge in our case did conduct a plea bargain inquiry and also fully satisfied the requirements then established in 1969 by the Care decision.⁶ The plea bargain inquiry portion of the trial included in part the following dialogue:

“MJ: All right. Is there any pretrial agreement?

TC: There is, Your Honor. Let the record reflect that I am handing to the military judge what has been marked as Appellate Exhibit II, the Pretrial Agreement.

MJ: All right. I take it there is an appendix that goes along with Appellate Exhibit II?

TC: There is, and it has been marked as Appellate Exhibit III, pertaining to sentencing.

MJ: Would you give that to the reporter, please?

TC: Let the record reflect that I am handling Appellate Exhibit III, the sentencing portion of the Pretrial Agreement, to the court reporter.

MJ: Private, I am looking at what has been marked as Appellate Exhibit II, styled Pretrial Agreement, dated 5 October 1976. Did you sign the back page of Appellate Exhibit II?

ACC: Yes, Your Honor.

MJ: And did you read it over and discuss it with your defense counsel before you signed it?

ACC: I did, Your Honor.

MJ: And do you understand all of it?

ACC: Yes, Your Honor.

MJ: Now it says here that, ‘In offering the above agreement, I should like to state that I am satisfied with the defense counsel who has been appointed to defend me;’ is that correct?

ACC: Yes, Your Honor.

MJ: You are satisfied in all respects with Captain Desonier?

ACC: Yes, I am.

MJ: Do you feel that he is doing his best job by pleading you guilty of larceny?

ACC: Yes, Your Honor.

MJ: It goes on to say, ‘This offer to plead guilty originated with me and no person or persons have made any attempt to force or coerce me into making this offer or to plead guilty;’ is that correct?

ACC: Yes, sir.

MJ: And you understand all of that?

ACC: Yes, Your Honor.

MJ: And it says, ‘My defense counsel has advised me of the meaning and effect of my guilty plea, and I understand the meaning and effect thereof;’ is that right?

ACC: Yes, Your Honor.

MJ: It goes on to say, T understand that I may withdraw the plea of guilty at any time before findings are announced for any reason, and at any time before sentence is adjudged with permission of the military judge for good cause;’ do you understand that?

ACC: Yes, Your Honor?

MJ: Now, is there a stipulation of fact in this case?

TC: There is not, Your Honor.

MJ: All right. It goes on to say that, T further understand that this agreement will be automatically cancelled upon the happening of any of the following events: The withdrawal by either party from the agreement prior to trial;’ do you understand that?

ACC: Yes, Your Honor.

MJ: ‘The changing of my plea by anyone during trial from guilty to not guilty;’ do you understand that?

ACC: Yes, Your Honor.

MJ: And lastly, ‘The refusal of the court to accept my plea of guilty;’ do you understand that?

ACC: Yes, Your Honor.

MJ: Now, is it your understanding, Private, that you have a certain sentence agreement with the Convening Authority?

ACC: Yes, Your Honor.

MJ: And do you understand what that certain sentencing agreement is that you have with the Convening Authority?

ACC: I do.

MJ: All right. Now, tell me, is there anything at all about your pretrial agreement that you have with the Convening Authority that you do not un-' derstand?

ACC: Captain Desonier went over with me and explained very clearly to me, Your Honor, and I think I understand • it okay.

MJ: You understand everything?

ACC: Yes, Your Honor.

MJ: If you have any questions now is the time to ask?

ACC: I don’t have any questions, Your Honor.

MJ: All right. Has there been any restraint in this case?

TC: No, Your Honor.”

In addition, the military judge, sitting alone in our case, properly waited until after announcing the sentence to inquire into the actual sentence limitations specified in the plea bargain. The inquiry after the sentence was conducted as follows:

“TC: Let the record reflect that I am handing Appellate Exhibit III to the military judge.

MJ: Appellate Exhibit III, Private Crowley, reads: ‘Provided the Convening Authority agrees to: number one, suspend any confinement adjudged which is in excess of two months confinement at hard labor; and, number two, suspend any forfeitures adjudged which are in excess of two-thirds pay per month for three months.’

Now, is that the entire agreement as to sentence?

TC: It is, Your Honor.

MJ: And was that sentence agreement the understanding that you had with the Convening Authority?

ACC: Yes, Your Honor.

M J: Do you have any questions about it?

ACC: No, Your Honor.

MJ: The court is adjourned.”

The appellant alleges that the above-stated inquiry failed in several areas to fully comply with the Green requirements. These alleged failures are as follows:

1. The military judge failed to explain the significance of not entering into a stipulation of fact after discovering that there was no stipulation. The military judge is also alleged to have failed to explain to

. appellant that the agreement was automatically cancelled upon appellant’s failure to agree with trial counsel on the contents of the stipulation.

2. The military judge failed to insure on the record that the appellant understood the sentence limitations imposed by the pretrial agreement.

3. The military judge failed to ascertain from counsel that his understanding of the terms and conditions of the pretrial agreement comported with their understanding of the pretrial agreement.

4. The military judge did not secure from counsel for the accused as well as the prosecutor their assurances that the written agreement encompasses all of the understandings of the parties.

Taking these allegations in order, we decide as follows:

1. The military judge had no purpose to serve in explaining the condition in the agreement to enter into a stipulation. Having discovered that there was no stipulation the condition became moot. Insistence upon a stipulation could have only enhanced the Government’s position, since the Government had absolute control of its contents by its ability to cancel the plea agreement if there was disagreement on the contents of the stipulation.

2. We hold that where the sentence limitations are simple and straight forward, as in this case, the judge’s inquiry with the accused did insure on the record that the accused understood the sentence limitations. The military judge read the brief sentence limitations aloud to the accused. The military judge had previously obtained assurances from the accused that the defense counsel had gone over the agreement with the accused and explained it to him. The military judge asked if that was the sentence limitation agreement he had with the convening authority and asked if the accused had any questions. The military judge received appropriate responses to both these questions. This inquiry should be sufficient to insure to a reasonably cautious military judge, dealing with an average soldier, that the soldier fully understood the two noncomplex limitations concerning the sentence.

3. The military judge did fail to ascertain from counsel that his understanding of the terms and conditions of the pretrial agreement comported with their understanding of the pretrial agreement. The military judge did ascertain from trial counsel that the judge’s understanding of the sentence was the entire agreement as to sentence. The military judge also inquired in a detailed and thorough manner with the accused as to each condition of the agreement and his understanding of these terms. Both the defense counsel and the trial counsel were present and listened to this detailed explanation which was placed on the record by the military judge. The judge’s understanding was spread on the record in an unambiguous manner. Under these circumstances we do not find an error when the military judge fails to ask counsel if his understanding comports with their understanding. We find that under these circumstances we can safely infer that the judge’s understanding comports with counsels’, because they are under a duty to voice their disagreement on the record. The military judge did not hurry through the inquiry or attempt to brush any questions aside. Both counsel had a lengthy opportunity to correct the record if corrections were necessary. We do not suggest that this is the best procedure. We encourage military judges to ask the specific question of both counsel, but the failure to ask this question should not cause an improvident plea per se.

4. The appellant alleges, and we agree, that the military judge did not secure from the counsel for the accused as well as the prosecutor their assurance that the written agreement encompasses all of the understandings of the parties. As previously noted the judge asked the trial counsel if that was the entire agreement as to sentence but this falls short of compliance with this condition. In addition, we do not find that by silence of counsel, we can infer that there were no additional agreements. The stated policy reason for this condition is to expose any secret understandings. If there were secret understandings it is difficult to infer that counsel would volunteer to reveal them at trial even though they would be under a duty to volunteer such information. Having the question answered by counsel, however, does insure a direct responsibility in this procedure which should have a prophylactic effect in the prevention of any secret agreements. Having found that the answer to this inquiry can not be inferred from the silence of counsel, we are left with the question of whether we must find the plea improvident. We find that this Court can remedy this defect. We have by order of this Court, dated 18 May 1977, secured affidavits from the trial counsel and trial defense counsel. These affidavits have been included with the record and reflect that neither counsel had any secret understandings and the written agreement contained all the provisions surrounding the agreement. We find this to be a particularly salutary use of our unique appellate fact-finding authority. Such fact-finding authority was given to this Court by Article 66(c) of the Uniform Code of Military Justice, 10 U.S.C. § 866(c).⁷ By using this fact-finding power we are indeed sharing the responsibility to police the terms of pretrial agreements with the military judge, as noted in the Green decision. Having now found that there were no secret agreements in this case, we have assured ourselves that this plea of guilty was provident. We see no merit in the argument that we can not cure this defect at this level. It appears clear from the record that the military judge simply forgot to ask counsel this question. No underlying sinister motives for the omission can be detected. No underlying sinister motives for the omission can be detected. There is no doubt that counsel’s answers to our affidavits would have been the same answers they would have given at the trial. Had they given such answers at the trial the military judge would have no reason to inquire further and indeed the guidelines in Green do not provide for a further inquiry. There is no method to absolutely test, even with the response being made directly to the military judge, whether the response of counsel is accurate. However, the prophylactic nature of the question being asked is still present whether the military judge asks the question or we ask the question by affidavit. Therefore, it would be a case of putting form over substance if we were to find that we could not cure a defect of this unique nature at the appellate level. It is also inappropriate to argue that once the defect exists there is no remedy short of a rehearing or dismissal. If we find through the use of a valid fact-finding procedure that the plea was provident, how can the fundamental rights of the accused be injured? They can not. In fact his rights are more fully protected by this procedure in assuring a more efficient disposition of his case.

In addition, we do not disagree in principal with the judges of this Court who find that these kinds of facts must be established by a limited rehearing, where the accused, counsel and the military judge will all be present. A limited rehearing would also be another method to establish the fact that there were no secret agreements but it is much more costly and time consuming than the securing of affidavits from counsel.

We are aware that the Care decision itself deals with basic substantive requirements, and specific compliance with its guidelines is mandated in order to insure the providency of a plea of guilty. These guidelines include a detailed explanation of the offense, explicit advice as to what is given up by the accused’s waiver of a trial on the merits and other very basic items of information. All of these guidelines concern the basic substantive rights of the accused to insure a knowing, intelligent and conscious waiver. As previously noted, the Green decision makes its additional guidelines part of the Care inquiry. The Green case also states that a failure to conduct a plea bargain inquiry will be viewed as a matter affecting the providency of the plea. Therefore, if the specific guidelines of Green are not followed, must we hold the plea improvident? We find that substantial compliance with certain guidelines is sufficient. The specific guidelines of Green are intended to obtain the overall policy objectives of complete fairness, enhancing public confidence, assuring clarity and complete openness in the plea bargaining procedures. These are important but not of the same substantive nature and importance as the basic Care inquiry. They do not require the strict specific adherence to each guideline to obtain the policy objectives. Also, only the failure to conduct a plea bargain inquiry is noted as affecting providency. The Green case does not specifically state that failure to follow each specific guideline while conducting the plea bargain inquiry must result in an improvident plea.

In summary, we find the guilty plea in this case was provident. The Green decision does not require a perfect plea bargain inquiry. If the military judge has conducted an inquiry which is in substantial compliance with the Green guidelines, we hold that the plea can be considered provident. In order to have substantial compliance, we require a sufficiently high level of compliance so that we can assure ourselves from the record by direct responses or justifiable inferences that all the inquiries have been satisfactorily covered and answered. As noted, we do not feel that we can infer a proper response if the question concerning possible secret agreements is not asked. Such a defect requires further shared action on our part. We find that securing affidavits to answer this question is an appropriate use of our fact-finding power. The use of this procedure enhances the stature of this Court by enabling the Court to cut through unnecessary formalism and achieve a timely, less expensive result, which at the same time protects the rights of the accused. In this regard, if the affidavits would have indicated any possibility of a secret agreement, this Court would have taken immediate action to insure that the appellant’s rights were fully protected.

The findings of guilty and the sentence are affirmed.

Chief Judge CLAUSEN, Senior Judges CARNE and JONES, and Judges MITCHELL, DeFORD and FELDER concur. Judge FULTON not participating.

1 . 1 M.J. 453 (1976).

2 . Id. 1 M.J. at 456.

³

4 . United States v. Elmore, 1 M.J. 262 (1976).

5 . Supra 1 M.J. at 456.

6 . United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).

7 . We are aware of military case law which does not allow this Court to consider evidence outside the record of trial to support or reverse a conviction on the merits. United States v. Lanford, 6 U.S.C.M.A. 371, 379, 20 C.M.R. 87, 95 (1955); United States v. Bethea, 22 U.S.C. M.A. 223, 46 C.M.R. 223 (1973). The issues before us are clearly distinguishable. Here, we are faced with a situation which requires a determination of whether a collateral procedural defect in the guilty plea inquiry may improvidence the appellant’s plea. It does not per se change the substance of the appellant’s admission of guilt or the validity thereof but rather concerns a collateral procedural plea bargain inquiry.

We are charged with the responsibility of expediting the appeal process, and in also improving techniques for the preparation of records for appeal which will conserve public funds and time expended in the criminal process.* Affidavits can supply the Court with necessary valid information as to whether any secret agreements were made. By using affidavits we expedite the time necessary for the processing of such matters and conserve public funds as rehearings are not required absent some showing of their necessity. These procedures are in full accord with the noted Standards. We note that the United States Supreme Court in the recent case of Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977), in dealing with the providency of a guilty plea, has stated that district court judges, who have fact-finding powers similar to the powers that this Court was given by Congress in Article 66(c), can develop their own suitable procedures for discovery, concerning omissions in the providency inquiry. Therefore, we find a substantial basis for concluding that this Court may properly utilize affidavits as a means of avoiding the need for an evidentiary hearing.

* See paragraphs 3.3 and 3.4, Standards Relating to Criminal Appeals, American Bar Association Project on Standards for Criminal Justice, hereafter termed the Standards.