United States v. Neal

3 M.J. 593, 1977 CMR LEXIS 845

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: March 11, 1977
• Docket: NCM 76 2621
• Status: Published

Opinions

BAUM, Judge.

Appellant stands convicted by general court-martial, judge alone, of larceny of U. S. Government self-service items valued at over $3,000 and a 20 day unauthorized absence in violation of Articles 121 and 86, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 921, respectively. The judge imposed a sentence consisting of a bad conduct discharge, confinement at hard labor for eight months, forfeitures of $150 per month for eight months and reduction to E-l. The convening authority approved the sentence as adjudged and deferred application of forfeitures until execution of the sentence. Prior to his action on the record the convening authority had deferred the remaining confinement of approximately seven months until sentence execution also.

Appellant pled guilty pursuant to a pretrial agreement, the terms of which require interpretation by this Court. First, it must be noted that a provision similar to the one cited by me in United States v. Johnson, 54 C.M.R. 435, 2 M.J. 600 (N.C.M.R.1976), which voids the sentence portion upon establishment that the appellant has committed acts of misconduct subsequent to trial, also appears in the instant pretrial agreement. Although my brothers have not agreed with me on this matter, I find this provision void for the reasons outlined in Johnson : it is against public policy; it attempts to create a probation which the convening authority is not authorized by statute to establish; and it exceeds the scope of pretrial agreements authorized by the JAG Manual, Section 0114.

The following provision also appears in this agreement:

That, I understand that this agreement will be automatically cancelled upon the happening of any of the following events:

(1) Failure of the agreement with the trial counsel on the contents of the stipulation of facts, or modification or withdrawal at any time of the agreed stipulation of facts without the consent of the trial counsel; ....

Such a provision, which makes the efficacy of the agreement contingent upon meeting trial counsel’s terms with respect to a stipulation, has been condemned by this Court as improper. United States v. Eymer, No. 76 0275, 1 M.J. 990 (N.C.M.R. 11 August 1976). Since the stipulation and the pretrial agreement were both signed by all parties on the same date, it appears likely that the stipulation was agreed upon at the time the plea was negotiated and became a part of the agreement as written, without prejudice to the accused. In a proper case, however, upon a showing that the accused was forced to agree to trial counsel’s terms for a stipulation after the plea bargain had been approved by the convening authority, I would declare the agreement void as well as the plea of guilty based upon it. There being no such showing in this case, I find no prejudice and move on to another provision requiring our interpretation.

There are two appendices to the instant pretrial agreement as follows:

MAXIMUM SENTENCE APPENDIX TO MEMORANDUM OF PRETRIAL AGREEMENT

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MAXIMUM SENTENCE TO BE APPROVED BY CONVENING AUTHORITY:

1. DISCHARGE: That portion of the sentence awarding a punitive discharge will be approved.

2. CONFINEMENT AT HARD LABOR: Only so much of the sentence awarding confinement at hard labor as provides for nine (9) months will be approved.

3. FORFEITURES: Only so much of the sentence awarding forfeitures as provides for $185.00 per month for nine (9) months will be approved.

4. REDUCTION: That portion of the sentence awarding reduction as adjudged will be approved.

CONDITIONS OF PROBATION APPENDIX TO MEMORANDUM OF PRETRIAL AGREEMENT

It is understood and agreed that the suspension of those portions of the sentence prescribed as the maximum sentence to be approved by the convening authority is conditioned upon the probationer refraining from committing any acts of misconduct prohibited by the Uniform Code of Military Justice, the laws of the United States, the District of Columbia, or the State of North Carolina, or the regulations of the Department of the Navy or United States Marine Corps. It is also understood that any violation of these conditions may result in the vacation of any suspension.

The provision concerning suspension is identical to the one found in United States v. Eymer, supra. In that case it was stated:

It is apparent that some portion if not all of the sentence was to be suspended on probation and the ambiguities in the agreement should be resolved in the appellant’s favor. United States v. Hamill, 8 U.S.C.M.A. 464, 24 C.M.R. 274 (1957); United States v. Franklin, 41 C.M.R. 431 (A.C.M.R.1969). If the convening authority had intended that no portion of the sentence was to be suspended he should have made that fact clear in the pretrial agreement. We will act to give effect to suspension of the sentence as the convening authority was legally bound to have done. United States v. Cox, 22 U.S.C.M.A. 69, 46 C.M.R. 69 (1972); United States v. Glaze, 22 U.S.C.M.A. 230, 46 C.M.R. 230 (1973).

We feel bound to follow the same course in the instant case.

The findings of guilty and sentence as approved below are affirmed, but the execution of the entire sentence is suspended until 3 June 1977, at which time, unless the suspension is sooner vacated, the sentence will be remitted without further action.