United States v. Kraffa

11 M.J. 453, 1981 CMA LEXIS 12939

• Court: United States Court of Military Appeals
• Decided: September 21, 1981
• Docket: No. 39,252; NCM 79-0554
• Status: Published

Opinions

Opinion of the Court

COOK, Judge:

In accordance with his pleas, appellant was convicted by a general court-martial, consisting of a military judge alone, of six specifications alleging the wrongful sale, possession, and transfer of marihuana, and one specification of absence without authority, in violation of Articles 92 and 86, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 886, respectively. On January 8, 1979, he was sentenced to confinement at hard labor and forfeiture of $200 pay per month for 18 months, reduction to the pay grade of E — 1, and a bad-conduct discharge. The convening authority approved the findings and sentence, but directed that “[t]he sentence to confinement at hard labor and application of forfeitures will be deferred upon commencement of excess leave on 3 July 1979 until completion of appellate leave unless sooner rescinded.” His action was subsequently amended to reflect the effective date of the deferment and excess leave as June 8,1979.¹ This action complied with the following provision of a pretrial agreement:

5 OTHER: Upon the accused’s request, the convening authority agrees to defer all confinement in excess of six months.

To approve the accused’s request for appellate leave and place the accused upon appellate leave upon his release from the place of post trial custody.

After announcing the adjudged sentence, the military judge examined the sentencing provisions of the pretrial agreement and entered into the following colloquy with the parties at trial:

MJ: Now, under five other. Upon the accused’s request, the Convening Authority agrees to defer all confinement in excess of six months. Now, that means that after service of six months confinement at hard labor, the Convening Authority agrees to defer the rest of the confinement, that is, not to suspend it, that is, not to remit it, but to defer it. Do you understand what deferment of confinement means?

ACC: No, sir, I do not. I understand, sir.

MJ: You do understand what deferment of confinement is. Okay. And a final provision to approve the accused’s request for appellate leave and to place the accused upon appellate leave upon his release from the place of post-trial custody. That indicates to me that after you have served your six months of confinement, the . . . [convening authority] will defer all remaining confinement at hard labor, and should a request for appellate leave be forthcoming, the accused, the Convening Authority agrees to place you upon what is called appellate leave and send you home awaiting the appellate review of the case. Do you understand?

ACC: Yes, sir.

MJ: Is my interpretation consistent with yours, Captain BREWER?

TC: It is, Your Honor.

MJ: Captain MAGNUSON?

DC: It is, Your Honor.

MJ: And you, Lance Corporal KRAFFA?

ACC: Yes, sir, it is.

In an opinion dated April 9, 1980, the United States Navy Court of Military Review held that the military judge’s failure to explain the distinction between a suspension or remission of a sentence and a deferment of the sentence “prevents us from finding a provident plea,” and it set aside the findings of guilty. United States v. Kraffa, 9 M.J. 643, 646 (N.C.M.R.1980). The court below also held that there were other deficiencies in the providency inquiry, but noted “they may not have been fatal.” Id. at 644. Government counsel filed a motion for reconsideration. While the motion was pending before the court below, the convening authority remitted the unexecuted confinement at hard labor.² Subsequently, the court denied the Government’s motion for reconsideration without opinion. The Judge Advocate General, in turn, certified the following issue to this Court:

Was the United States Navy Court of Military Review correct as a matter of law in its determination that the pleas of guilty were improvident because the military judge did not fully explain the meaning of deferment (and how deferment differs from suspension and remission) where such deficiency has been remedied by the convening authority’s supplemental action ordering that all unexecuted confinement at hard labor be remitted?

Initially, we consider the legal consequence of the fact that the convening authority’s remission action was taken after publication of the court’s opinion. Our dissenting Brother concludes that the court’s action expunged the findings of guilty and the sentence and, thereby, left nothing upon which the convening authority could act. A decision of the Court of Military Review, however, is not self-executing. The court issues no mandate, but its decision is forwarded to the convening authority for further action. See Article 66(e), UCMJ, 10 U.S.C. § 866(e); JAGMAN 0124a (3).

The authority of a Court of Military Review to reconsider its own decision cannot be doubted. United States v. Reeves, 1 U.S.C.M.A. 388, 3 C.M.R. 122 (1952); see United States v. Sapigao, 9 M.J. 111, 112 (C.M.A.1980) (Fletcher, J., dissenting). The absence of a mandate and the authority to reconsider results in an inchoate decision by a Court of Military Review until the possibility of reconsideration is removed. Where a motion for reconsideration has been filed the legal efficacy of the decision is effectively removed. In United States v. Sparks, 5 U.S.C.M.A. 453, 457-58, 18 C.M.R. , 81-82 (1955), the Court analyzed the inchoate nature of a Board of Review (now Court of Military Review) decision and rejected an argument that it was equivalent to a mandate with the following remarks:

Moreover, in Reeves, we rejected a contention that the transmittal by a board of review of its decision to The Judge Advocate General divested that tribunal of jurisdiction. Yet that act would seem as closely similar to the issuance of its mandate by a civilian court as would the referral of the decision to the officer exercising general court-martial jurisdiction over the accused. We suspect, too, that the usual civilian mandate is to be complied with instanter by the trial court to which it is issued.

On the other hand, no immediate action by the officer exercising general court-martial jurisdiction is contemplated —save, of course, that involved in serving the accused with a copy of the decision. It would seem then that only at the expiration of 30 days from that event does the board’s decision achieve that unqualified status which would serve, in terms of legal consequence, as an analogy to the mandate of a civilian court.³

(Emphasis supplied.)

Rule 19, Courts of Military Review Rules of Practice and Procedure, 3 M.J. Cl, now provides for the time periods during which a motion for reconsideration must be filed, but the inchoate nature of a Court of Military Review decision has not changed since Sparks. Thus, the decision of the Court of Military Review in the present case did not void or nullify the findings and sentence. Since we perceive the convening authority’s remission as an exercise of his own independent responsibilities and because there was no court mandate directed to him, his action was not an attempt to usurp the power of the appellate court.

The question before this Court, therefore, is whether the remission required a different disposition of the Government’s motion for reconsideration.

Under any interpretation of the plea agreement, appellant could not reasonably have believed that, if the court-martial sentenced him to confinement at hard labor in excess of 6 months, the convening authority was bound to reduce the period to less than 6 months. In other words, he had to know that he was liable to serve a maximum period of confinement of 6 months. Consequently, if the convening authority, in his original action, had reduced the 18-month period adjudged by the court-martial to 6 months, appellant would have been protected against any harm from misunderstanding of the deferment provision of his plea agreement. Does it make any difference to appellant that the convening authority effected the reduction subsequent to his original action, but before the Court of Military Review acted on the Government’s application for reconsideration of its decision? We are certain it does not.

In United States v. Cooke, 11 M.J. 257 (C.M.A.1981), this Court observed that “if the convening authority grants the same relief for which the accused thought he had contracted” in a plea agreement, there is no occasion to vacate his plea of guilty for misunderstanding of the sentence terms specified in the agreement. Id. at 261 (footnote omitted). Of course, Cooke was decided after the Court of Military Review acted in this case, but the concept of conforming judicial action to the terms of a pretrial agreement has long been recognized. United States v. Scott, 4 M.J. 205 (C.M.A.1978). Thus,-in reviewing the original action of the convening authority, the court, itself, could have reduced the period of confinement to 6 months, and, thereby, assured appellant the benefit he believed he was entitled to under his plea agreement and render unnecessary setting aside his plea of guilty as improvident. United States v. Scott, supra. Alternatively, the court could have remanded the case to the convening authority to determine, in his discretion, whether to conform his action to appellant’s understanding of the plea agreement or to set aside the findings of guilty and the sentence to allow appellant the opportunity to be free of punishment more onerous than that for which he believed he had contracted. Either alternative was still available to the Court of Military Review when the Government requested reconsideration of the court’s decision.

As we observed earlier, the Court of Military Review’s decision did not divest it of jurisdiction over the case. See United States v. Robertson, 17 U.S.C.M.A. 604, 38 C.M.R. 402 (1968). Until the Government’s application was disposed of, the findings and sentence of the court-martial had not vanished from the judicial scene, leaving nothing upon which the convening authority could act. With the findings and sentence still viable, was the convening authority powerless to do anything to guarantee the benefits of the bargain the appellant may have believed he had struck? No suggestion of any legal impediment to such action appears in the pleadings or the order of the Court of Military Review. Nor do we perceive any vice in the Government’s request that the Court of Military Review consider the intervening action by the convening authority in determining the merits of the request for reconsideration of the court’s original decision. In Thorpe v. Housing Authority, 386 U.S. 670, 87 S.Ct. 1244, 18 L.Ed.2d 394 (1967), and 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), a tenant in a public housing project disputed eviction. After granting certiorari, the United States Supreme Court remanded the case to the North Carolina Supreme Court to allow consideration of a new circular on eviction issued by the Department of Housing and Urban Development.

Certainly, under the original decision of the Court of Military Review, appellant would have had the opportunity to change his plea, even if the question of whether there had been a sufficient meeting of the minds on the confinement provision to protect him against a longer period of confinement at a rehearing would not have been resolved. Cf. United States v. Lanzer, 3 M.J. 60 (C.M.A.1977). The action taken by the convening authority removed the doubt; it gave the appellant what he would have received under the most favorable interpretation of his plea agreement. Informed of that action, the Court of Military Review was not bound to rely upon this Court to conform its earlier decision to the facts, but could, itself, effect the requisite modification. We are impelled, therefore, to answer the certified question in the negative.

In its initial review, the Court of Military Review perceived other deficiencies in the trial judge’s inquiry into appellant’s understanding of the terms of his plea agreement. The court did not indicate whether it deemed these deficiencies sufficient to warrant invalidation of the plea of guilty, and the Judge Advocate General has not asked that we review them. As the record must, in any event, be remanded to the court below, we express no opinion on that subject.

The decision of the United States Navy Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Navy for submission to the Court of Military Review for further proceedings consistent with this opinion.

Chief Judge EVERETT concurs.

1 . Apparently the amendment incorporated the good time credit which accused accrued during his period of confinement.

2 . Neither the Government nor appellant has challenged the power of the convening authority to remit the confinement. Thus, we need not now decide if a deferred sentence is equivalent to a suspended sentence which may be remitted after the case is forwarded for appellate review. Compare para. 88e with para. 89b of the Manual for Courts-Martial, United States, 1969 (Revised edition), and United States v. Shulthise, 14 U.S.C.M.A. 31, 33 C.M.R. 243 (1963).

3 . If 30 days pass after the accused is notified of the decision of the board of review and he does not petition, and no certificate is filed, the sentence may lawfully be ordered into execution. Manual for Courts-Martial, United States, 1951, paragraph 100c. A sentence to dismissal must, however, receive further action before execution. See Article 71 b.