United States v. Hill

U.S. Army Court of Military Review

United States v. Hill

7 M.J. 580, 1979 CMR LEXIS 729

CourtU.S. Army Court of Military Review

DecidedMarch 30, 1979

DocketSPCM 13734

StatusPublished

Cited by3 cases

This text of 7 M.J. 580 (United States v. Hill) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Hill, 7 M.J. 580, 1979 CMR LEXIS 729 (usarmymilrev 1979).

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OPINION OF THE COURT

FELDER, Judge:

Pursuant to a pretrial agreement, the appellant pleaded guilty to being absent without authority, disobeying a noncommissioned officer and breaching restraint by absenting himself from the correctional custody facility. The approved sentence necessitates review of the case by this Court.

The appellant now claims that his plea of guilty is improvident for two reasons. First, since the convening authority suspended the bad-conduct discharge for four months and because neither the written agreement nor the trial judge mentioned the period of suspension, there was a sub rosa arrangement that was not discussed during the providency inquiry. Secondly, the plea is unacceptable because the bargained agreement contains a provision contrary to law and public policy, to wit: the agreement becomes invalid if the appellant pleads not guilty at a rehearing directed by the convening authority.

The appellant’s assertions lack merit. Where, as here, the providency inquiry satisfies the standards set forth in United [581]*581States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969), the failure of the trial judge to strictly comply with the requirement of United States v. King, 3 M.J. 458 (C.M.A.1977) and United States v. Green, 1 M.J. 453 (C.M.A.1976) is a matter that affects the providence of the plea. However, a plea of guilty will not be declared improvident unless the appellant demonstrates to this Court that the failure by the trial judge to strictly comply with the mandates of King and Green has caused harm to him. To the contrary, in this case the suspension of the discharge for only four months benefitted the appellant and since no rehearing has been directed, the complained of provision is nugatory. This Court will not grant relief to the appellant on an illusive basis.

Accordingly, the findings of guilty and sentence are affirmed.

Senior Judge MITCHELL concurs.

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OPINION OF THE COURT

FELDER, Judge:

Pursuant to a pretrial agreement, the appellant pleaded guilty to being absent without authority, disobeying a noncommissioned officer and breaching restraint by absenting himself from the correctional custody facility. The approved sentence necessitates review of the case by this Court.

The appellant now claims that his plea of guilty is improvident for two reasons. First, since the convening authority suspended the bad-conduct discharge for four months and because neither the written agreement nor the trial judge mentioned the period of suspension, there was a sub rosa arrangement that was not discussed during the providency inquiry. Secondly, the plea is unacceptable because the bargained agreement contains a provision contrary to law and public policy, to wit: the agreement becomes invalid if the appellant pleads not guilty at a rehearing directed by the convening authority.

The appellant’s assertions lack merit. Where, as here, the providency inquiry satisfies the standards set forth in United [581]*581States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969), the failure of the trial judge to strictly comply with the requirement of United States v. King, 3 M.J. 458 (C.M.A.1977) and United States v. Green, 1 M.J. 453 (C.M.A.1976) is a matter that affects the providence of the plea. However, a plea of guilty will not be declared improvident unless the appellant demonstrates to this Court that the failure by the trial judge to strictly comply with the mandates of King and Green has caused harm to him. To the contrary, in this case the suspension of the discharge for only four months benefitted the appellant and since no rehearing has been directed, the complained of provision is nugatory. This Court will not grant relief to the appellant on an illusive basis.

Accordingly, the findings of guilty and sentence are affirmed.

Senior Judge MITCHELL concurs.

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7 M.J. 580, 1979 CMR LEXIS 729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hill-usarmymilrev-1979.

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