United States v. Williamson

4 M.J. 708, 1977 CMR LEXIS 614

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: December 21, 1977
• Docket: NCM 77 1803
• Status: Published

Opinions

BAUM, Judge:

Appellant stands convicted of a 2 year unauthorized absence after pleading guilty pursuant to a pretrial agreement. He was sentenced by a special court-martial judge to a bad conduct discharge, confinement at hard labor for 3 months, and forfeiture of $100.00 per month for 3 months. The convening authority reduced the confinement to 75 days, in accordance with the pretrial agreement, and otherwise approved the sentence. At this level, appellant, citing United States v. Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976) and United States v. Elmore, 24 U.S.C.M.A. 81, 51 C.M.R. 254, 1 M.J. 262 (1976), summarily assigns as error that his pleas of guilty were rendered improvident because of the military judge’s failure to properly and sufficiently inquire into the terms of the pretrial agreement. He has not specified wherein the inquiry is deficient, nor does he assert that he was misled, or that the convening authority failed to comply with the agreement.

The military judge established that appellant understood all provisions of his pretrial agreement, including the sentence limitations. (R. 10,19, 20). In addition, the military judge received assurances from trial counsel and defense counsel that the written agreement encompassed all of the understandings of the parties. (R. 11). The military judge did not specifically ask trial counsel and defense counsel if their interpretation of the pretrial agreement agreed with his own. The pretrial agreement in this case, however, is clear and unambiguous. Since neither counsel objected to the military judge’s interpretation of the pretrial agreement, after hearing the judge’s discussion of the agreement with appellant, we conclude that their understanding of the meaning and effect of the plea bargain necessarily comported with that of the military judge. We find that the military judge’s inquiry fulfilled the requirements of United States v. Green, supra, and that appellant’s guilty pleas were voluntarily and providently made.

The instant pretrial agreement inquiry leaves us with no gap in the record; in contrast with the situation in United States v. King, 3 M.J. 458 (C.M.A.1977), where the military judge failed to ask for and obtain from both counsel confirmation that the written agreement encompassed all of the understandings of the parties. In such a case, silence would not assure that there were no sub rosa understandings, and a majority of the Court of Military Appeals declined to “fill in” a record left silent in this regard, and reversed. Those judges have made it clear that cases reaching them with such a gap will be reversed without regard to its prejudicial effect. In our view, however, the King decision does not deprive this Court or lower reviewing authorities of the right to obtain additional information, either through affidavits or an appropriate hearing,¹ in order to meet our fact finding responsibilities and, thus, fill in asserted procedural gaps when actual prejudice has not been alleged. To interpret King otherwise would result in our being forced, contrary to Article 59(a, UCMJ, 10 U.S.C. § 859(a), to mechanistically reverse even those cases in which the failure to follow the Elmore guidelines constitutes quintessentially harmless error. I do not believe the Court of Military Appeals intended to require such of this Court or of convening and supervisory authorities. If so, I would have to concur with the views expressed by Senior Judge Dunbar, in his separate opinion, concerning the inappropriateness of appellate fiats that impose rigid restraints upon the exercise of judicial judgement and discretion at the trial and intermediate review levels. High Court decisions should not mandate reversal of cases for departures from procedural norms not involving considerations of constitutional due process, or material prejudice to a substantial right. To do so elevates form over substance and, thus, conflicts with our basic principles of criminal law as well as with the Uniform Code of Military Justice.

I disagree, however, with Senior Judge Dunbar’s analysis that finds case language still precatory after Green. As I read Green, the following language from that case makes the suggested guidelines in the concurring opinion of United States v. Elmore, supra, a mandatory procedure, rather than a permissive one:

We, therefore, hold that as part of all Care inquiries conducted 30 days or more after the date of this opinion, the trial judge shall ascertain whether a plea bargain exists and, if so, shall conduct an inquiry into the pretrial agreement in accordance with the Elmore guidelines previously enunciated. [Emphasis supplied] [United States v. Green, supra at 302, 52 C.M.R. at 13, 1 M.J. at 456].

As stated earlier, however, I find that the Green mandate was met in this case.

Since the Elmore concurring opinion merely sets forth results to be obtained by trial judges, without spelling out the precise manner in which they will be achieved, I believe it incumbent upon this Court to immediately set forth procedures to be followed. Accordingly, in order to minimize further reversals at the highest level, henceforth, the Military Judge should conduct each pretrial agreement inquiry in accordance with the following procedure:

1. Ask the accused and his counsel if there is a pretrial agreement.

2. If there is an agreement, then view it in its entirety before findings when trial is before a court composed of members; otherwise, reserve inquiry into the sentence provisions until after imposition of sentence.

3. Go over each provision of the agreement with the accused (including, at the appropriate point in the proceedings, the sentence terms), paraphrase each in the judge’s own words, and explain in the judge’s own words the ramifications of each provision.

4. Obtain from the accused either his statement of concurrence with the judge’s explanation or his own understanding, followed by a resolution on the record of any differences.

5. Strike all provisions, with the consent of the parties, that violate either appellate case law, public policy, or the judge’s own notions of fundamental fairness; further, make a statement on the record that the judge considers all remaining provisions to be in accord with appellate case law, not against public policy, and not contrary to his own notions of fundamental fairness.

6. Ask trial and defense counsel if the written agreement encompasses all of the understandings of the parties, and conduct further inquiry into any additional understandings that are revealed.

7. Ask trial and defense counsel if the judge’s interpretation of the agreement comports with their understanding of the meaning and effect of the plea bargain, and resolve on the record any differences.

Convening and supervisory authorities should return all records to the judge for compliance with this procedure when their review reveals that it has not been followed and such can be done without material prejudice to the substantial rights of the accused. See Article 62(b) UCMJ; Paragraphs 80, 86d, and 95, MCM, 1969 (Rev.); United States v. Barnes, 21 U.S.C.M.A. 169, 44 C.M.R. 223 (1972); United States v. Berkley, 47 C.M.R. 30 (N.C.M.R.1973). Return of the record will ensure correction of defects at the earliest possible time, expedite the appeal process and conserve both time and resources.²

The appellant’s second assignment of error relates to a purported defect in the sworn charges that we have addressed and rejected before and is again rejected here.

The findings of guilty and sentence as approved below are affirmed.

Judge MALLERY concurs.

1 . Article 62(b), UCMJ; Paragraph 95, MCM, 1969 (Rev.).

2 . See United States v. Crowley, 3 M.J. 988, 993 n. 7 (A.C.M.R.1977) with respect to our responsibilities in this regard.