United States v. Hunter

64 M.J. 571, 2007 CCA LEXIS 3, 2007 WL 156383

Opinions

McClelland, judge:

Appellant was tried by special court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of the following offenses: three specifications of failure to go to his appointed place of duty, in violation of Article 86, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886; one specification of willful dereliction of duty by making unauthorized charges to a Government credit card and by failing to make payments on that card, in violation of Article 92, UCMJ, 10 U.S.C. § 892; one specification of larceny of a motorcycle, in violation of Article 121, UCMJ, 10 U.S.C. § 921; and one specification of dishonorable failure to pay a debt, in violation of Article 134, UCMJ, 10 U.S.C. § 934.

The military judge sentenced Appellant to a bad-conduct discharge, confinement for eight months, and reduction to E-l. The Convening Authority approved only so much of the sentence as includes a bad-conduct discharge, reduction to E-2, and confinement for eight months, but suspended confinement in excess of 180 days for the period of twelve months from the date of the Convening Authority’s action. Although the pretrial agreement provided that the execution of all confinement in excess of 120 days would be suspended for a period of twelve months from the date of the Convening Authority’s action, the Convening Authority partially withdrew the sentence limitation due to Appellant’s misconduct. Appellant waived a R.C.M. 1109 hearing to determine whether the alleged misconduct was committed, in exchange for the Convening Authority’s agreement not to impose more than sixty days of additional confinement and not to take further action upon the suspected misconduct. Automatic forfeitures were deferred and waived.

Before this Court, Appellant has assigned two errors: (1) that Appellant’s pleas were improvident because the military judge failed to ensure that Appellant understood the meaning and effect of each condition of the pretrial agreement, and (2) that Appellant’s plea to a dishonorable failure to pay a just debt (Charge IV) is improvident because the military judge misadvised Appellant of the elements of the offense and failed to elicit facts sufficient to establish that his conduct was dishonorable. We heard oral argument on the first assignment of error on 14 July 2005.

Misconduct Provisions in Pretrial Agreement

Appellant complains that the military judge failed to inquire into whether Appellant understood the misconduct provisions in his pretrial agreement, and asserts that he was prejudiced by that failure when it was applied, causing him to serve an additional two months of confinement.

Appellant’s pretrial agreement, which he and his counsel signed on 16 November 2004, two days before the trial, provided for approval of a punitive discharge, disapproval of any reduction below the paygrade of E-2, and suspension of confinement in excess of 120 days. The agreement provided that if Appellant engaged in misconduct at any time after signing the pretrial agreement and before completing the sentence, including any suspension, the Convening Authority was entitled to take certain actions. If the Convening Authority acted on the misconduct after Appellant’s guilty pleas were accepted but before the Convening Authority took action under R.C.M. 1107, the Convening Authority could set aside the sentence limitations, after affording Appellant a hearing “substantially similar to the hearing required by Article 72, UCMJ, 10 U.S.C. § 872, and the procedures based on the level of adjudged punishment set forth in R.C.M. 1109(d), (e), (f), or (g)”.¹ (Appellate Ex. VIII at 3.)

The military judge conducted an inquiry on the pretrial agreement, but the record of trial reveals no inquiry on the misconduct provisions of the pretrial agreement.²

Upon entry to Naval Brig Norfolk pursuant to the court-martial sentence to confinement for eight months, apparently Appellant was found to be in possession of stolen or misappropriated government property, and a routine urine sample tested positive for marijuana use. On 11 February 2005, defense counsel submitted a written “Offer to waive 1107 Hearing” offering Appellant’s waiver of a hearing and agreement to serve an additional sixty days confinement that would otherwise have been suspended, in exchange for the Convening Authority’s agreement “not to pursue charges for drug use or possession or larceny that are currently known or suspected by the command.” A four-page document prepared on DD Form 455³ reflects the Convening Authority’s 15 February 2005 acceptance of the offer, and the Convening Authority’s action dated 8 March 2005 implements it, suspending confinement in excess of 180 days rather than the 120 days provided for by the pretrial agreement.

R.C.M. 910(f)(4) requires that if a plea agreement exists, the military judge “shall inquire to ensure: (A) That the accused understands the agreement; and (B) That the parties agree to the terms of the agreement.” An inquiry that fails to ensure that the accused understands the terms of the agreement falls short of that requirement. United States v. Felder, 59 M.J. 444, 445 (C.A.A.F.2004). To obtain relief for such a failure, Article 59(a), UCMJ, 10 U.S.C. § 859(a), burdens an appellant to demonstrate material prejudice to a substantial right. Id. at 446.

We hold that the failure to specifically inquire into Appellant’s understanding of the misconduct provisions of the pretrial agreement was error. The question follows, has Appellant shown prejudice to a substantial right?

The inquiry required by R.C.M. 910(f)(4) is a part of the inquiry into the providence of the accused’s pleas, under R.C.M. 910(c)-(e) as well as R.C.M. 910(f). The obvious point of the inquiry is to ensure that an accused fully understands the ramifications of the pretrial agreement as they may play out in the accused’s case, and hence to make a fully informed decision as to whether or not to plead guilty under the conditions of the agreement. In other words, the substantial right with which we are concerned is the right to make a fully informed decision as to whether or not to plead guilty. Prejudice, therefore, results when an accused, based on a misunderstanding, makes a decision that is different from the decision he would have made had it not been for the misunderstanding.

In United States v. Gonzalez, 61 M.J. 633, 636 (C.G.Ct.Crim.App.2005), this Court posed the question about prejudice thus: “In particular, would the Appellant have chosen to change his plea to not guilty and demand a contested trial had he understood the correct application of Articles 58a and 58b, UCMJ, 10 U.S.C. §§ 858a and 858b, to special courts-martial conducted by the U.S. Coast Guard?” The question was whether a proper understanding would have changed Gonzalez’s decision in court.⁴ This Court’s conclusion was negative. Id.

At the time of the providence inquiry by the military judge in this case, Appellant surely was aware of his conduct that, if discovered, could trigger the misconduct provisions. He needed to understand those provisions; such understanding might have led him to withdraw his guilty pleas because of the distinct possibility that the sentence limitation would be nullified by his misconduct. The fact that he did not withdraw from the agreement does not necessarily justify the conclusion that he did not understand.⁵ However, unlike Gonzalez, in this case we cannot say that if Appellant had originally misunderstood and had then been given a correct understanding, he would have been unlikely to have changed his pleas to not guilty. We must, therefore, consider whether, by the end of the providence inquiry, Appellant was laboring under a misunderstanding.

Later events may provide a clue to his understanding. The time came when the misconduct provisions posed a real threat, apparently leading Appellant and his counsel to consider negotiating a post-trial agreement that would limit the consequences of his misconduct to two extra months of confinement instead of the four months that were at risk under the pretrial agreement.⁶ Again, Appellant needed to understand those provisions in order to make a decision — and surely did, since their application was no longer theoretical. At this point, any disparity between Appellant’s previous understanding and his new understanding in light of the facts should have occasioned a complaint. Appellant’s offer dated 11 February 2005 could be viewed as either an acknowledgment that he had understood all along or a waiver of the issue, but for one problem. Nowhere in the post-trial documents of this case does Appellant’s signature appear*. In view of the absence of Appellant’s signature from the post-trial agreement, we hesitate to draw any inferences from it in the Government’s favor.

We are mindful, however, that even before this Court, Appellant has not claimed that he did not understand the misconduct provisions of his pretrial agreement. In truth, their basic import is not difficult to understand.⁷ We see no reason to believe that Appellant did not, during the trial, understand the misconduct provisions to an extent that would make a difference. We conclude that Appellant has not shown prejudice from the military judge’s failure to discuss the misconduct provisions of the pretrial agreement.

Dishonorable Failure to Pay Debt

The specification under Charge IV, for violating Article 134, UCMJ, reads as follows:

In that Machinery Technician Third Class Jesse C. Hunter, U.S. Coast Guard, USCGC MACKINAW, Cheboygan, Michigan, on active duty, being indebted to, his landlord, Mr. Roger Kopernik in the sum of approximately $1800.00 for rent of an apartment, which amount was due and payable in part on divers occasions from on or about September 2003 and due in full on or about September 2004, did, at or near, Cheboygan, Michigan, from approximately July 2004 to September 2004, dishonorably fail to pay this debt.

The Stipulation of Fact (Prosecution Ex. 1) establishes the following facts. Appellant rented premises from Mr. Kopernik on or about 14 September 2003, but failed to make some of the rent and utility payments under the lease. On or about 19 May 2004, Appellant and Mr. Kopernik signed an agreement in which Appellant agreed to pay the rent on time and make payments on the arrearages. Appellant “failed to make all of the required payments as he agreed that he would.” (Prosecution Ex. 1 at 4.) He was evicted in early October 2004, at which time Appellant owed Mr. Kopernik $1,806.16 in back rent and utilities.

During the providence inquiry, Appellant admitted the truth of the facts stipulated. The military judge also elicited from him that he was receiving his military pay during the entire period, that it was a conscious and knowing decision not to pay, that nothing prevented him from paying, that he could have paid the debt if he had wanted to, and that he believed his failure to pay the debt was dishonorable in that he had signed an agreement and did not fulfill it.

Appellant now complains that the military-judge misstated the elements of the offense, implying that the September 2003 — 19 May 2004 time period was part of the offense. This complaint lacks merit. The military judge’s rendition of the elements closely tracks the specification itself except for trivial word omissions which we do not believe could have misled Appellant. More substantively, he also complains that the military judge failed to elicit facts sufficient to show that his failure to pay was dishonorable.

Before accepting a guilty plea, the military judge must establish a factual basis for the plea by questioning the accused. R.C.M. 910(e).

Part of Appellant’s complaint is near-incredulity that the required factual basis could be found in the absence of more detail about the monthly rent and the payments actually made by Appellant. The providence inquiry for Charge IV is set forth in Appendix B to this opinion. It is true that details are scarce and the providence inquiry is formulaic and not especially convincing. Questioning that elicited details beyond the vague information in the Stipulation of Fact, instead of solely questions to be answered by yes or no, would have done much to establish a firm factual basis and verify that Appellant really understood what was going on and knew and understood what he was admitting. We previously pointed out the likely inadequacy of an inquiry that does not go beyond a bare-bones stipulation of fact in United States v. Schrader, 60 M.J. 830, 831 (C.G.Ct.Crim.App.2005), where we said, “All military judges should remind themselves that such stipulations, without a more detailed inquiry, are not an adequate factual basis supporting guilt.” However, the factual details elicited in this case, though minimal, are sufficient to fulfill the requirement, in our view. Military judges who take comfort in this result do so at their peril. We urge military judges to expand their inquiries beyond the boundaries of stipulations and generic lists of questions.

Appellant focuses his assertion of error on what he calls the absence of facts to establish that his failure to pay was attributable to more than negligence, citing United States v. Burris, 59 M.J. 700 (C.G.Ct.Crim.App.2004), and United States v. Taylor, 61 M.J. 640 (C.G.Ct.Crim.App.2005). “More than negligence in nonpayment is necessary. The failure to pay must be characterized by deceit, evasion, false promises, or other distinctly culpable circumstances indicating a deliberate nonpayment or grossly indifferent attitude toward one’s just obligations.” MCM, Pt. II, ¶71.0.

Burris “stated that he simply could not pay his debts as they were due, and alluded to severe pay problems that left him unable to pay for basics.” Burris, 59 M.J. at 703. This, combined with the fact that the meaning of “dishonorable” had not been explained to him, led this Court to find Burris’s guilty pleas improvident. Id. at 704. Taylor failed to follow up when his credit card statements did not reach him at his new address. This Court found his conduct to be simple negligence, while irresponsible, and his guilty plea, too, was held improvident. Taylor, 61 M.J. at 644.

Here, by contrast, Appellant admitted at trial that he could have paid, nothing prevented him, it was a conscious decision not to pay; he was receiving his military pay. We cannot agree with Appellant that this was no more than negligence. The landlord took the step of obtaining Appellant’s written agreement in May 2004 to remedy what might previously have been thoughtless failures to pay. By September 2004, Appellant had failed his obligations under the May agreement to the tune of $1,800. We find that this amounted to distinctly culpable circumstances; his admittedly deliberate nonpayment was dishonorable under MCM, Pt. II, ¶ 71.c.

Decision

We have reviewed the record in accordance with Article 66, UCMJ, 10 U.S.C. § 866. Upon such review, the findings and sentence are determined to be correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty and the sentence, as approved and partially suspended below, are affirmed.

Judge KANTOR concurs.

1 . Note that R.C.M. 1109 allows for vacation of suspension "based on a violation of the conditions of suspension which occurs within the period of suspension.” R.C.M. 1109(b)(1), Manual for Courts-Martial (MCM), United States (2005 ed.) (although the 2002 edition of the MCM was in effect at the time of the offenses resulting in the charges and at the time of trial, the versions of the relevant provisions in both the 2002 and 2005 editions are identical). Hence the misconduct provisions of the instant pretrial agreement gave the Convening Authority more flexibility compared with the basic scheme of a suspended sentence, that is, the option of responding to Appellant’s new misconduct, if any, within a broader period of time without initiating a new proceeding under the UCMJ. This is permissible under R.C.M. 705(c)(2)(D), but see United States v. Bulla, 58 M.J. 715 (C.G.Ct.Crim.App.2003), for discussion of possible limitations, which are not implicated in this case.

2 . Of the five-page "Pretrial Agreement (Part I),” the first two pages set forth the pleas to be entered and several standard provisions. The third page sets forth the misconduct provisions. The fourth page sets forth several concessions by Appellant, including a restitution undertaking. The fifth page is the signature page. The military judge appears to have assumed that all of the first three pages are covered by the Trial Guide, which he carefully followed. In fact, much but not all of the standard provisions on the first two pages are covered in the Trial Guide. He gave attention to most of the fourth page, and thoroughly discussed the restitution provision, but omitted mention of the provision concerning non-objection to service record documents during pre-sentencing. Military judges need to be more careful when determining which provisions of a pretrial agreement need to be discussed in addition to the inquiry provided in the Trial Guide. We have raised this caution in numerous cases in the past, e.g. United States v. Sheehan, 62 M.J. 568, 570 (C.G.Ct.Crim.App.2005), and seven cases cited therein.

3 . The form bears the title “Report of Proceedings to vacate suspension of a general court-martial sentence or of a special court-martial sentence including a bad-conduct discharge under Article 72, UCMJ, and R.C.M. 1109."

4 . Implicitly, this Court assumed that Gonzalez did not have a correct understanding.

5 . It is common for a consensual search to lead to the discovery of obviously incriminating evidence of which the consenter must have been aware.

6 . Such a post-trial agreement is permissible. United States v. Dawson, 51 M.J. 411 (C.A.A.F.1999).

7 . The relevant portion of the pretrial agreement is set forth in Appendix A to this opinion.