United States v. Perron

58 M.J. 78, 2003 CAAF LEXIS 150, 2003 WL 297148
CourtCourt of Appeals for the Armed Forces
DecidedFebruary 12, 2003
Docket02-0168/CG
StatusPublished
Cited by68 cases

This text of 58 M.J. 78 (United States v. Perron) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Perron, 58 M.J. 78, 2003 CAAF LEXIS 150, 2003 WL 297148 (Ark. 2003).

Opinions

Judge BAKER

delivered the opinion of the Court:

Appellant was tried by a special court-martial composed of a military judge alone. In accordance with his pleas, Appellant was convicted of one specification of wrongful possession of a controlled substance and two specifications of wrongful use of a controlled substance, in violation of Article 112a, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 912a (2002). He was sentenced to a bad-conduct discharge, confinement for 90 days, and a reduction to pay grade E-3. Consistent with a pretrial agreement, the convening authority approved the adjudged sentence but suspended all confinement in excess of 60 days for a period of six months.

The Coast Guard Court of Criminal Appeals set aside the convening authority’s action due to a mutual misunderstanding regarding a material term in the pretrial agreement. United States v. Perron, 53 M.J. 774, 777 (C.G.Ct.Crim.App.2000) (.Perron I). On remand, the convening authority approved only the bad-conduct discharge and the reduction to E-3.

On November 1, 2001, the Court of Criminal Appeals again reviewed the convening authority’s action. United States v. Perron, 57 M.J. 597 (C.G.Ct.Crim.App.2001) (Perron II). It affirmed the findings of guilty and the bad-conduct discharge, but set aside the reduction to pay grade E-3, restoring all rights, privileges, and property related to portions of the sentence that had been set aside. Id. at 599.

This Court granted review on the following issues:

I. WHERE THERE HAS BEEN A FAILURE OF A MATERIAL TERM IN A PRETRIAL AGREEMENT, MAY AN APPELLATE COURT FASHION AN ALTERNATIVE REMEDY OF ITS OWN CHOOSING, CONTRARY TO APPELLANT’S WISHES, OR MUST IT AFFORD AN APPELLANT THE OPPORTUNITY TO WITHDRAW FROM THE AGREEMENT?
II. WHETHER THE LOWER COURT ERRED BY FAILING TO FIND THAT APPELLANT’S PLEAS OF GUILTY PURSUANT TO A PRETRIAL AGREEMENT WERE VOLUNTARY BEYOND A REASONABLE DOUBT, WHERE THE COURT CONCLUDED THERE HAD BEEN A FAILURE OF A MATERIAL TERM OF THE AGREEMENT.

We reverse the Court of Criminal Appeals’ decision. Because we resolve this case on Issue I, we do not reach the second granted issue.

Background

On January 15, 1999, Appellant and the Government entered into a pretrial agreement. One provision of that agreement required the convening authority to waive all automatic forfeitures and pay those to Appellant’s family during his confinement.1 After Appellant began serving his confinement, trial defense counsel informed Appellant that he had entered a no-pay status upon his confinement due to the expiration of his enlistment term prior to trial.2 As a result, his family did not receive the agreed-upon payments during his confinement.

On March 8, 1999, trial defense counsel sent a clemency request to the convening authority, alerting him to the problem. In the request, Appellant’s counsel asked the convening authority to correct the mistake:

Please consider BM2 Perron’s family in this matter. The family cannot survive financially without the aid of BM2 Perron. [80]*80Granting relief from the pay provisions or immediate release from jail in order to gain immediate employment are the only options that allow for the financial relief his family desperately needs.

On March 11, 1999, the convening authority responded to trial defense counsel’s plea for relief as follows:

1. I reviewed your clemency request of 8 Mar 99. Upon review, and in accord with Article 58b, UCMJ, 10 U.S.C. § 858b, I have acted upon your concerns. I immediately sent a letter requesting a waiver of all forfeitures (including automatic forfeitures) in the subject case to USCG Human Resource Service and Information Center (HRSIC) (a copy of which was provided to you, see Enel. (1)).
2. Enclosure (2) provides the response from HRSIC to the request. Unfortunately, due to SN Perron’s status (involuntary extension due to pending court-martial), he was in a no-pay status when sentencing occurred and the entire time he was in jail. Thus, there were no forfeitures available to forfeit. As such, it is impossible to achieve the desired result provided for in Article 58b. I have made every attempt available and acted as provided for in the Pre-Trial Agreement. I have waived all forfeitures. As a result of an administrative distinction, however, the desired result of having SN Perron’s . family receive these waived automatic forfeitures is impossible.
3. Further, I have reviewed your clemency request as it relates to the immediate release of SN Perron. I deny your sought relief. I will, however, ensure this request is reviewed again by the SJA and myself once the record of trial is forwarded for our respective reviews and my final action.

Because the convening authority’s action did not correct the misunderstanding regarding the forfeiture provision, Appellant sought relief from the Coast Guard Court of Criminal Appeals. The Court of Criminal Appeals found that none of the trial participants, including the military judge, realized that Appellant would enter a no-pay status upon confinement because his enlistment expired prior to trial.3 Perron I, 53 M.J. at 777. It also determined that the forfeiture provision of the pretrial agreement was a material term of the agreement, a conclusion the Government has not challenged in this Court. Id. The lower court therefore remanded the case to the convening authority to either set aside the findings of guilty and the sentence or determine whether some other form of alternative relief was appropriate. Id.

On remand, the convening authority modified the sentence, approving only the bad-conduct discharge and the reduction to E-3. Because the revised sentence did not include confinement, the pay center determined that Appellant was entitled to payment for the time he spent in confinement, which by that time had been completed. The pay center therefore paid Appellant $3,184.90, the amount his family would have received had the forfeiture provision been effective.

Unsatisfied with the convening authority’s action, Appellant again appealed to the Court of Criminal Appeals for relief. In his appeal, Appellant continued to argue that his plea was involuntary. Perron II, 57 M.J. at 598. The basis of his claim was that the convening authority’s action in disapproving confinement and allowing for the belated payment of the funds his family should have received under the pretrial agreement was insufficient to cure the failed material provision in the pretrial agreement. Id. In other words, Appellant argued that he would not have agreed to the pretrial agreement had he been offered the relief provided by the convening authority, because payment of the forfeiture amount after confinement did not compensate his family for the value the payments would have had if they had been paid during his incarceration. He claimed that the only proper relief was for the Court of [81]*81Criminal Appeals to either allow him to withdraw his plea or accept his proposed relief— disapproval of his bad-conduct discharge. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
58 M.J. 78, 2003 CAAF LEXIS 150, 2003 WL 297148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-perron-armfor-2003.