United States v. Rankin

3 M.J. 1043, 1977 CMR LEXIS 704

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: August 26, 1977
• Docket: NCM 77 0800
• Status: Published

Opinions

CEDARBURG, Chief Judge:

Appellant was convicted, in consonance with his plea, of wrongful appropriation of $142.00 in currency and a money order, in violation of Article 121, 10 U.S.C. § 921, UCMJ. The military judge sentenced him to a bad conduct discharge, forfeiture of $80.00 pay per month for six months, and reduction to pay grade E-l.

Prior to trial appellant had negotiated a pretrial agreement with the convening authority which provided that the convening authority would suspend any bad conduct discharge and any confinement in excess of 45 days. A condition of the sentence limiting feature of the agreement was the following express provision:

That it is expressly understood that I will not commit any act or misconduct punishable under any article of the Uniform Code of Military Justice between the date of trial and the date of the convening authority’s action. Any such misconduct will void the provisions of this agreement concerning the maximum sentence to be approved and authorize the convening authority to approve any sentence adjudged or portion thereof.

At the trial, the military judge carefully inquired into appellant’s understanding of the pretrial agreement. He specifically referred to the above quoted provision and got appellant’s understanding as follows:

Accused: That means that I can’t get in any trouble under the military Code, sir, during the time.

MJ: All right. What else?

Accused: And that if I should do so, the maximum charges that is — has been— that is been brought can be used against me.

MJ: If you commit an offense of the military Code, under military law, between today, the date of trial, and the date the convening authority takes his action, which may be tomorrow or six weeks from now, then this agreement is void. In other words, the convening authority does not have to live up to the terms of this agreement. That’s what that means. Do you understand that?

Accused: Yes, sir.

MJ: Do you have any questions?

Accused: No, sir.

We conclude that appellant, who proposed the agreement including the provision he now complains of, knew he must not commit any offense, cognizable under military law, under penalty of voiding the sentence limiting portions of the agreement he had negotiated.

On 31 January 1977, before the convening authority took his action a hearing was held into alleged misconduct of appellant which was alleged to have occurred on 16 January 1977. Appellant was represented by his trial defense counsel in an extended hearing in which appellant called witnesses and made argument through counsel. The hearing officer formally found appellant had committed an assault upon a Sergeant and recommended the pretrial agreement be held void by reason of appellant’s misconduct. On 23 February 1977, the convening authority approved the sentence as adjudged and declared the pretrial agreement void.

Appellant now complains:

THE CONVENING AUTHORITY FAILED TO ADHERE TO THE TERMS OF THE PRETRIAL AGREEMENT RELYING ERRONEOUSLY ON A PROVISION OF THE AGREEMENT WHICH WAS VOID AS AGAINST PUBLIC POLICY.

This Court has consistently rejected such contentions. United States v. Bigler, 50 C.M.R. 818 (N.C.M.R.1975); United States v. Poling, No. 770055 (N.C.M.R. 6 May 1977). We perceive no contravention of public policy in the provision’s requirement of good conduct.

In the instant case, it is clear from the record that the appellant understood and agreed to the condition of good conduct to obtain the sentencing advantage he had negotiated. As was recently stated by Senior Judge Newton in United States v. Pryor, 3 M.J. 737 (N.C.M.R.1977):

The appellant received no more, or less, than he bargained for. The burden to behave lawfully after trial was not unreasonably imposed or unreasonably to be expected of him. That he did not so behave is shown beyond doubt. No valid reason appears for complaint at this stage of the proceedings.

It is noted that the convening authority was adequately assured of the veracity of the post-trial misconduct found, through [here, the formal hearing, replete with findings of fact and recommendations] .. Inasmuch as an investigative procedure-hearing-opportunity to rebut was provided to appellant, no error is apparent.

The findings and sentence as approved on review below are affirmed.

Judge GREGORY concurs.