United States v. Green

1 M.J. 453, 1976 CMA LEXIS 7197
CourtUnited States Court of Military Appeals
DecidedAugust 13, 1976
DocketNo. 31,443
StatusPublished
Cited by244 cases

This text of 1 M.J. 453 (United States v. Green) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Green, 1 M.J. 453, 1976 CMA LEXIS 7197 (cma 1976).

Opinions

OPINION OF THE COURT

FLETCHER, Chief Judge:

Charged with robbery of a German national, the accused entered a plea of guilty before Judge Dennis R. Hunt in accordance with a pretrial agreement with the convening authority which limited the approved sentence to a bad-conduct discharge, confinement at hard labor for 12 months, and accessory penalties. During his inquiry into the providence of the plea, Judge Hunt examined the quantum portion of the pretrial agreement. This, appellant contends, prejudiced his right to have the trial judge arrive at an independent and impartial sentence. We granted review to reexamine the limitations upon, as well as the obligations of, the trial judge with regard to his examination of and inquiry into the terms of a negotiated plea bargain.

I

Appellant acknowledges that the propriety of the judge’s action here was sanctioned in United States v. Villa, 19 U.S.C.M.A. 564, 567, 42 C.M.R. 166, 169 (1970):

We perceive no reasonable risk that other trial judges would be any less independent and impartial because they knew the sentence terms of a pretrial agreement. We conclude, therefore, that there is no reasonable risk that knowledge of the sentence provision of a pretrial agreement would incline the military judge to abstain from adjudging a less severe sentence than he would otherwise have imposed.

Nevertheless, it is suggested that Villa created only a presumption that a trial judge was capable of disregarding the terms of a pretrial agreement. Through statistical analysis of negotiated plea cases pending before the U.S. Army Court of Military Review, the appellant contends that the presumption in Villa has, in fact, been rebutted. Thus, we are urged to overrule Villa rather than to perpetuate a legal fiction. In effect, the defense seeks to substantiate statistically the view taken by [455]*455Judge Ferguson in his dissenting opinion in United States v. Villa, supra at 569, 42 C.M.R. at 171:

It is, in my opinion, asking too much to expect ... [a trial judge] to maintain an impartial disposition relative to sentence after he learns, through perusal of the pretrial agreement, that the initial appellate authority has already determined an appropriate sentence and that if he adjudges a sentence in excess thereof, the ultimate sentence must be reduced. Not infrequently, sentences returned by a court-martial are less than that agreed upon. Where this likelihood exists, perusal of the terms of the agreement undoubtedly would have an effect on the judge’s decision.

The statistical data filed by appellate defense counsel reflect that in only 20 percent of the cases surveyed did the trial judge actually examine the quantum portion of the pretrial agreement before sentencing. This is in keeping with the guidance offered in the Military Judges’ Guide :1

Normally sound practice indicates that in a trial before a military judge alone, the military judge in inquiring into the providence of the plea should defer consideration of the provisions of the agreement relating to the quantum of the agreed punishment until after announcing sentence. ... If after considering the quantum provisions the military judge determines for any reason that the plea was improvident, he must take appropriate corrective action.

Of the 20 percent of the cases in the survey in which the trial judge did examine the quantum portion of the pretrial agreement before announcing sentence, in only 12.5 percent of those cases did the judge actually announce a sentence less severe than that spelled out in the plea bargain. This is in contrast with the remaining 80 percent of the cases surveyed in which the trial judge did not examine the sentence provisions and adjudged more lenient sentences at a rate of 28.4 percent.

Appellate defense counsel also have digested 61 recent negotiated plea cases which came before Judge Hunt. In every case, he examined the quantum portion of the pretrial agreement before determining an appropriate sentence. In six cases (9.8 percent of the sample) the adjudged sentence was more lenient than that set forth in the plea bargain.

While it could be argued that the statistical data with regard to Judge Hunt’s sentencing decisions suggests that he was influenced by the convening authority’s limitations on the sentence to be approved, it is at least equally plausible that Judge Hunt simply adjudged more severe, yet nevertheless appropriate, sentences than the convening authority was willing to approve. Because the statistics with regard to Judge Hunt establish no impropriety and more likely than not merely reflect a general sentencing policy which differs somewhat from that of the convening authority, we conclude that there is no evidence indicating a failure to adjudge a fair, impartial, and appropriate sentence in this instance. Even so, the general statistical data presented does illuminate a disturbing trend which should prompt every trial judge to reconsider the recommendation previously mentioned from the Military Judges’ Guide. Adherence to the procedure set forth therein will not affect the judge’s ability to determine the providence of a plea, yet it may enhance the perceived fairness of the sentencing process.

II

Our discussion thus far has focused upon limitations on the trial judge’s inquiry into the terms of a pretrial agreement. Of equal importance are his affirmative obligations insofar as negotiated pleas are concerned. In a concurring opinion in United States v. Elmore, 1 M.J. 262, 264-65 (1976), I observed that trial judges, as part of their inquiry into the providence of a guilty plea, should carefully inquire into the terms and conditions of any existing pretrial agreement:

[456]*456[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. Where the plea bargain encompasses conditions which the trial judge believes violate either appellate case law, public policy, or the trial judge’s own notions of fundamental fairness, he should, on his own motion, strike such provisions from the agreement with the consent of the parties.
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.

We are not unmindful of the additional burden such an inquiry would place on the trial judiciary. Nevertheless, the propriety and meaning of various plea bargain provisions remains a fertile source of appellate litigation. E.g., United States v. Elmore, supra; United States v. Kapp, 23 U.S.C.M.A. 442 n. 50 C.M.R. 461 n. 1 M.J. 58n. (1975); United States v. Holland, 23 U.S.C.M.A. 442, 50 C.M.R. 461, 1 M.J. 58 (1975).

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1 M.J. 453, 1976 CMA LEXIS 7197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-green-cma-1976.