United States v. Rondash

30 M.J. 686, 1990 CMR LEXIS 162, 1990 WL 19697

• Court: U.S. Army Court of Military Review
• Decided: February 28, 1990
• Docket: ACMR 8902355
• Status: Published

Opinion

Opinion of the Court

PER CURIAM:

Appellant entered into a pretrial agreement whereby, in exchange for his pleas of guilty and promise to testify truthfully at another’s court-martial, the convening authority agreed to refer appellant’s case to a special court-martial. During the providence inquiry, the military judge directed the trial counsel to separately mark the offer and quantum portion of the agreement. There was no separate quantum portion. The agreement to refer the case to a special court-martial appeared on the face of the offer. Therefore, the judge was made aware of the agreement to refer the case to a special court-martial.

Appellant now alleges it was error to disclose to the military judge the sentence limitation portion of the agreement. We agree. See United States v. Green, 1 M.J. 453, 455 (C.M.A.1976) (In order to “enhance the perceived fairness of the sentencing process” inquiry into sentencing limitations specified in plea bargain should be delayed until after sentence announcement in judge alone courts-martial); see also United States v. Jones, 24 M.J. 525 (A.F.C.M.R.), petition denied, 25 M.J. 308 (C.M.A.1987). The agreement to refer the case to a special court-martial should have been included in a separate quantum portion of the agreement. Such an agreement is equivalent to a sentence limitation within the meaning of Green.

We find that the erroneous procedure was defense initiated and that there was no defense objection. The court finds no “plain error” within the meaning of Manual for Courts-Martial, United States, 1984, Military Rule of Evidence 103(d). Accordingly, trial defense counsel’s failure to object waived this issue on appeal.

We have considered the other errors asserted by appellant and find them to be without merit.

The findings of guilty and the sentence are affirmed.