United States v. Makris

55 M.J. 715, 2001 CCA LEXIS 229, 2001 WL 1007616

• Court: United States Air Force Court of Criminal Appeals
• Decided: August 23, 2001
• Docket: ACM S29881
• Status: Published

Opinions

OPINION OF THE COURT

BRESLIN, Judge:

We have examined the record of trial and conclude the findings and sentence are correct in law and fact, the sentence is appropriate, and no error prejudicial to the substantial rights of the appellant was committed. Article 66(c), UCMJ, 10 U.S.C. § 866(c).

While this case was submitted to us on its merits, we note a condition in the pretrial agreement (PTA) that warrants discussion. The condition states that the appellant agreed “to proceed to trial as quickly as both sides are available, but in no case later than 31 July 2000, even if that requires me to change defense counsel.”

Rule for Courts-Martial (R.C.M.) 705(c)(1)(B) states that a term or condition in a PTA shall not be enforced if it deprives the accused of the right to counsel. We find no violation of this rule in this case because the PTA condition did not deprive the appellant of his right to counsel. However, given the rule, we suggest the exercise of caution when including conditions in PTAs that materially affect an accused’s attorney-client relationship(s). Additionally, when such conditions are included in PTAs, military judges should conduct an appropriate inquiry on the record to ensure that the condition does not deprive the accused of his or her right to counsel. Cf. United States v. McFadyen, 51 M.J. 289 (1999). In the appellant’s case, the military judge performed an appropriate inquiry and correctly found the PTA to be lawful.

Accordingly, the findings and sentence are

AFFIRMED.