United States v. Sawinski

16 M.J. 808, 1983 CMR LEXIS 887
CourtUnited States Court of Military Appeals
DecidedMay 20, 1983
DocketNMCM 82 4500
StatusPublished
Cited by9 cases

This text of 16 M.J. 808 (United States v. Sawinski) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sawinski, 16 M.J. 808, 1983 CMR LEXIS 887 (cma 1983).

Opinions

ABERNATHY, Senior Judge:

We had thought that, with the passage of over 13 years since its pronouncement, attempts to experiment with the procedural requirements of United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969), had ceased. Unfortunately, we were wrong.

Assigned as error, we are now asked to review the sufficiency of a providence inquiry in which the only relation of the appellant to the facts alleged in the offenses was by way of a stipulation of fact, received in evidence as an appellate exhibit and as to which no questions concerning the substantive content of the stipulation were propounded to appellant. The Government, in its reply to appellant’s assertion, concedes error and moves the Court to direct a proceeding in revision to correct the deficiencies in the providence inquiry. We accept the concession of error as properly made and reverse.

Appellant, tried by general court-martial consisting of military judge alone, pleaded guilty to four separate trilogies of drug offenses involving both marijuana and lysergic acid diethylamide (LSD) and occurring on 10, 12 and 19 March 1982 and 12 April 1982. After the statement of pleas, the military judge properly advised appellant that his pleas of guilty were equivalent to a conviction, that he could be found guilty on the basis of his pleas alone and without receipt of evidence, and that his pleas would not be accepted unless he realized that by his pleas he admitted every element of each offense. The military judge thereafter apprised appellant that by his pleas he waived his constitutional right against self-incrimination, his right to a trial of the facts by court-martial, and his right to be confronted by the witnesses against him. Appellant acknowledged his awareness of the implications of his pleas upon these rights.

The military judge then inquired as to the existence of a stipulation of fact. In response, the defense counsel offered a stipulation as Appellate Exhibit II. The military judge gave the following advice to appellant concerning the received stipulation: (1) that it constituted an agreement between counsel and appellant that the stated contents of the stipulation were true; (2) that if accepted into evidence the contents would become uncontradicted facts in the case; (3) that appellant could not be forced to enter into the stipulation; (4) that appellant should only enter into the stipulation if he truly wanted to do so and felt it was in his own best interest; (5) that the stipulation would be used “during this inquiry to help me determine the providency of your guilty plea;” (6) that trial counsel could use the stipulation as a matter in aggravation during the sentencing phase of trial; (7) that the military judge would consider the contents of the stipulation as setting forth aggravating matters; and, (8) that if the stipulation were contradicted after the plea of guilty was accepted, the providency into the plea would have to be reopened. Appellant acknowledged his understanding of each ramification of the [810]*810stipulation as explained, admitted to the truthfulness of its contents, and stated that he had read the stipulation, discussed it with his counsel and was entering into the stipulation voluntarily. The stipulation of fact was then received into evidence as an appellate exhibit, subject to acceptance of the pleas of guilty. We here observe that the stipulation contained a tailored recitation of all the elements of each offense alleged and a “factual confession” to each offense which set forth, with utmost particularity, virtually every fact which the Government would have been required to prove beyond reasonable doubt if trial had proceeded on the merits.1

With the stipulation in evidence, the military judge advised appellant of the elements of the offenses to which pleas of guilty had been entered, sufficiently tailoring each element to the averred acts in each specification so as to relate appellant personally to the offenses charged. Though the military judge indicated that appellant should be prepared to discuss the facts with him, the only substantive colloquy between judge and appellant which followed resulted in obtaining appellant’s admission that he knew that a “prohibition of pretty high level, maybe even it was Navy regulations,” made unlawful the possession, sale and transfer of controlled substances, to include marijuana and LSD; that what appellant was “doing” on 10, 12 and 19 March was wrongful;2 that Article 1151, Navy Regulations, was “extra-territorial” in that it applied to military personnel off-base as well as on-base;3 and, that appellant was a member of the naval service. There ensued neither discussion of the matters contained within the stipulation of fact nor questioning of appellant concerning the factual basis for his pleas. We here note that the only in-court verbal acknowledgment by appellant of facts relating to the offenses occurred in his unsworn statement offered during sentencing wherein he disclaimed any involvement in the sale of drugs beyond the transactions charged and also identified the purchasers involved in each specification.

The providence inquiry at an end, the military judge apprised appellant of the maximum permissible punishment based upon his pleas of guilty and thereafter purported to discuss the terms of the pretrial agreement. In doing so, however, he omitted any reference to five of the eight major paragraphs, which contained eight enumerated conditions or understandings to the agreement.

Prior to announcing his findings, the military judge did not specifically state that he found the pleas to have been entered voluntarily and with full knowledge by appellant of their meaning and effect or that the pleas were determined to be provident. The final irregularity in this trial proceeding was the failure of the military judge to enter findings whether the terms of the pretrial agreement were, or were not, in accordance with appellate case law, contrary to public policy, or contrary to the judge’s notions of fundamental fairness. See United States v. Williamson, 4 M.J. 708 (N.C.M.R.1977); United States v. Hoaglin, 10 M.J. 769 (N.C.M.R.1981).

United States v. Care, supra, sets forth as procedural elements to a provident plea inquiry the requirement that the military judge “question the accused about what he did or did not do ... to make clear the basis for a determination by the military trial judge ... whether the acts or the [811]*811omissions of the accused constitute the offense or offenses to which he is pleading guilty. United States v. Rinehart, 8 U.S.C. M.A. 402, 24 C.M.R. 212 (1957); United States v. Donohew, 18 U.S.C.M.A. 149, 39 C.M.R. 149 (1969). This requirement will not be satisfied by questions such as whether the accused realizes that a guilty plea admits ‘every element charged and every act or omission alleged and authorizes conviction of the offense without further proof.’ ” Care, supra at 541, 40 C.M.R. at 253. The charge of Care goes on to reflect that the military judge must shoulder the responsibility to “personally address” the accused not only to ascertain that a factual basis for the plea of guilty exists, but also to advise him that his plea waives the constitutional rights enumerated above.

We believe the case law which has emerged subsequent to, and in interpretation of, Care supports the proposition that “personally addressing” and “questioning” an accused requires at least some minimal,

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16 M.J. 808, 1983 CMR LEXIS 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sawinski-cma-1983.