United States v. Steck

8 M.J. 688, 1980 CMR LEXIS 669
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedJanuary 31, 1980
DocketNCM 79 0902
StatusPublished
Cited by3 cases

This text of 8 M.J. 688 (United States v. Steck) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Steck, 8 M.J. 688, 1980 CMR LEXIS 669 (usnmcmilrev 1980).

Opinions

GLADIS, Judge:

The accused was convicted pursuant to his guilty pleas at a general court martial bench trial of willfully damaging military property (two specifications), larceny of controlled drugs, and housebreaking, in violation of Articles 108,121, and 130, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 908, 921, and 930, and sentenced to a bad-conduct discharge, confinement at hard labor for 12 months, forfeiture of $250.00 pay per month for 12 months and reduction to pay grade E — 1. The convening authority directed a proceeding in revision, at which the accused was afforded the opportunity to withdraw his pleas, to cure a faulty plea bargain inquiry by establishing whether the pretrial agreement encompassed all of the understandings of the parties. See Article 62(b), UCMJ, 10 U.S.C. § 862(b); United States v. King, 3 M.J. 458 (C.M.A.1977); United States v. Green, 1 M.J. 453 (C.M.A.1976). After such a proceeding was held, the convening authority approved the sentence but suspended confinement and forfeitures in excess of 6 months.

The issues presented by this appeal are whether a defective plea bargain inquiry may be cured by a proceeding in revision and, if so, whether the proceeding in this case did cure the defect.1 We find that, although a proceeding in revision at which the accused is permitted to plead anew may cure a defective plea bargain inquiry if the entire record establishes the voluntariness of the accused’s pleas, it did .not do so in this case because the accused was not advised of the correct maximum punishment at the proceeding. Therefore, the entire record does not establish the vol-untariness of his pleas.

In King, supra, finding that the plea bargain inquiry was inadequate because the military judge did not secure from counsel confirmation that the written agreement encompassed all of the understandings of the parties and that his interpretation comported with that of the parties, the Court of Military Appeals held, in effect, that the remedy for a defective plea bargain inquiry was that normally utilized in guilty plea cases in which the providence of the pleas is not established by the trial judge’s inquiry. That remedy is a hearing at which the accused is permitted to plead anew. United States v. Gregg, 4 M.J. 897 (N.C.M.R.1978). See McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

Citing Gregg, supra, and United States v. Dimpter, 6 M.J. 824 (N.C.M.R.1979), the accused argues on appeal that proceedings in revision may not be used to cure a defective plea bargain inquiry because such proceedings do not afford the accused an opportunity to plead anew. Appellate defense counsel contends that an accused may not withdraw or change his pleas at a proceeding in revision because Manual for Courts-Martial, 1969 (Rev.) (MCM), paragraph 80c, prohibits the reopening of a case by the calling of witnesses or otherwise. See United States v. Simms, 20 C.M.R. 720 (A.F.B.R.1955).

In Dimpter, supra, we noted that a proceeding in revision is not designed to afford an accused the opportunity to plead anew. But in United States v. Barnes, 21 U.S.C.M.A. 169, 44 C.M.R. 223 (1972), the Court of Military Appeals approved the use of a proceeding in revision to cure a deficiency in the trial judge’s advice to the accused on his rights to counsel, noting that compliance with the objective of United States v. Donohew, 18 U.S.C.M.A. 149, 39 C.M.R. 149 (1969), to ensure that the accused understood those rights, was established by show[690]*690ing at the proceeding in revision that the accused understood his rights. The Court also noted that if an accused indicated he did not understand, apparently he would have been granted a rehearing. In the case at bar, had the accused withdrawn his pleas at the proceedings directed by the convening authority, the military judge could have terminated the proceedings and the convening authority could have subsequently set aside the findings of guilty and ordered a rehearing. There appear to be no sound reasons why a proceeding in revision or limited rehearing at which the accused is permitted to withdraw his pleas cannot be utilized to cure a defective plea bargain inquiry. Compare United States v. Berkley, 47 C.M.R. 30 (N.C.M.R.1973) (proceeding in revision at which the accused was permitted to plead anew utilized to cure defective providence inquiry) with United States v. Kaetzel, 48 C.M.R. 58 (A.F.C.M.R.1973) (proceeding in revision does not cure defective providence inquiry).

We recognize that in Gregg, supra, we said that the remedy for a defective providence inquiry is declaring the plea improvident, setting it aside, and permitting the accused to plead anew. Upon reexamination, we find the language in Gregg to be unnecessarily broad. Although prejudice may inhere in failure to comply with procedural safeguards that are designed to facilitate an accurate determination of the voluntariness of the accused’s plea, such prejudice may be cured without setting aside the pleas, findings of guilty, and sentence, in proceedings in which the accused is permitted to withdraw his pleas, because such proceedings will provide a record which will effectuate the policies underlying the procedural safeguards announced in McCarthy v. United States, supra, and United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969), which mandate demonstration upon a record established by the trial judge when the plea is entered that it is voluntary and provident. Although the findings of guilty have not been set aside, a subsequent proceeding at which the accused is permitted to withdraw his pleas and plead anew may be used to supplement a defective providence inquiry and satisfy the requirements of Care because, if the accused persists in his pleas, he is, in effect, reentering his pleas and their providence is thereby demonstrated at the time of entry. Inasmuch as a defective plea bargain inquiry affects the providence of the plea and the remedy for a defective plea bargain inquiry is the same as the remedy for an improvident plea, a defective plea bargain inquiry may be cured at a proceeding at which the accused is permitted to plead anew without setting aside the plea. Therefore, to the extent that Gregg requires the setting aside of an improvident plea of guilty by reason of a defective plea bargain inquiry, we decline to follow that case and hold that a defective providence or plea bargain inquiry may be cured by a proceeding in revision or limited rehearing at which the accused is permitted to plead anew.2

In this case, however, although the accused was permitted to plead anew, the proceeding in revision did not suffice to cure the defective plea bargain inquiry.

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Related

United States v. Steck
10 M.J. 412 (United States Court of Military Appeals, 1981)
United States v. Goodbread
11 M.J. 505 (U.S. Navy-Marine Corps Court of Military Review, 1981)
United States v. Waring
10 M.J. 730 (U.S. Navy-Marine Corps Court of Military Review, 1980)

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Bluebook (online)
8 M.J. 688, 1980 CMR LEXIS 669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-steck-usnmcmilrev-1980.