United States v. Young

35 M.J. 541, 1992 CMR LEXIS 594, 1992 WL 153946

• Court: U.S. Army Court of Military Review
• Decided: June 30, 1992
• Docket: ACMR 9101244
• Status: Published

Opinions

OPINION OF THE COURT

De GIULIO, Senior Judge:

On 10 June 1991, appellant was tried by a military judge sitting as a general court-martial. He pled guilty and was found guilty of willful damage to private property of a value of over $100.00 and larceny, in violation of Articles 109 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 909 and 921 (1982) [hereinafter UCMJ].¹ He was sentenced to a bad-conduct discharge, confinement for 18 months, and total forfeitures. The convening authority reduced the confinement to 12 months but otherwise approved the sentence.

Appellant asserts that the military judge erred to his prejudice by allowing the government to require appellant to waive his asserted right to members and agree to be tried by judge alone in exchange for the withdrawal of additional charges. We agree and set aside the sentence.

After being advised of his forum rights, appellant elected to be tried by a court with officer members. Subsequently, he entered mixed pleas. In addition to entering guilty pleas as indicated in this opinion, he entered pleas of not guilty to additional charges and specifications alleging larceny and receiving stolen property. After completion of the providence inquiry, the military judge granted trial counsel a recess so he could determine if he would present evidence on the remaining offenses. After the recess, the trial counsel made the following announcement:

[Djuring the recess I consulted with the Staff Judge Advocate and defense counsel representing the accused. And the government is willing to withdraw Additional Charge I and II but it’s going to be contingent upon the accused withdrawing his request for an officer panel and his requesting to go forward with military judge alone. Just to give you a little historical background, sir. The defense had originally approached the government with a pretrial agreement, if you will, a week ago or so, the agreement was turned down. They then came forward and offered to plead guilty again, that offer was turned down also. He nonetheless pled guilty today. After, the provident plea—or after you found the plea provident, we contacted the defense and said we would be willing to dismiss the additional charges, but we did put the contingency on that he go judge alone. There was no agreement prior to the entering of the provident plea but based on that we have basically entered an agreement.

Defense counsel responded, “We’d like to go ahead and proceed with the rest of the trial with judge alone.” The trial then proceeded by military judge alone.

Pretrial agreements² which have gone beyond bargaining on the plea and the sentence have always been viewed with caution, and the Court of Military Appeals has been quick to find public policy prohibitions when the agreement contains other provisions. See, e.g., United, States v. Mills, 12 MJ. 1 (C.M.A.1981) (agreement to waive appellate review improper); United States v. Green, 1 MJ. 453 (C.M.A.1976) (agreement to waive right to individual or civilian counsel not enforceable); United States v. Holland, 1 MJ. 58 (C.M.A.1975) (agreement that deprives accused of due process will not be enforced); United States v. Troglin, 44 C.M.R. 237 (C.M.A. 1972) (violation of public policy for agreement to waive motion of former jeopardy); United States v. Cummings, 38 C.M.R. 174 (C.M.A.1968) (agreement waiving speedy trial or due process violates public policy). Conditions in pretrial agreements have been upheld where they are “the exclusive product of [an accused’s] own, voluntary effort, not a response to a demand by the Government that they accept ‘or else.’ ” United States v. Lallande, 46 C.M.R. 170, 173 (C.M.A.1973).

In appellant’s case, the prosecution required the accused to be tried by a military judge alone. While the Court of Military Appeals has not condoned agreements which waive the right to trial by a court-martial composed of members, it has held that an accused would be bound by such a provision when it was a freely-conceived defense product. Schmeltz, 1 M.J. at 11-12. The theory used was that, although error, there was a loathing to permit an accused to attack his own action and claim relief. Id. at 12. Nevertheless, “the usual military practice of requiring the proposal for a pretrial agreement to originate with the accused ... helps curb undue prosecution pressure for an accused to ‘cop a plea.’ ” United States v. Schaffer, 12 M.J. 425, 428-29 (C.M.A.1982). The origin of the pretrial agreement proposal is important because Article 16(1)(B), UCMJ, 10 U.S.C. § 816(1)(B), resulted from a decision by Congress to provide a viable option for an accused to be tried by members or a military judge. United States v. Zelenski, 24 M.J. 1 (C.M.A.1987). See also United States v. Ralston, 24 MJ. 709 (A.C.M.R. 1987); United States v. Baumgart, 23 M.J. 888 (A.C.M.R.1987). Where an agreement contained a provision for waiver of trial by members which did not originate with the accused, the provision has been struck down. See United States v. Boyd, 2 M.J. 1014 (A.C.M.R.1976). Waiver of an accused’s rights under the UCMJ will be rejected “where the evidence of record establishes that a government counsel, staff judge advocate, convening authority, or anyone participating in the prosecutorial function requires or strongly ‘urges’ inclusion of such a waiver provision.” United States v. Jones, 23 M.J. 305, 307 (C.M.A. 1987).

In the case before us, the contingency was demanded by the prosecution. Appellant had to agree to the contingency “or else.” He could give up his important right to trial by members or be prosecuted for more offenses. This is the very action that Article 16, UCMJ, was meant to prevent.³

Because the appellant pled guilty to the original charges and specifications, the providence inquiry was properly completed, and findings of guilty to those offenses were properly announced by the military judge, the findings of guilty need not be disturbed. Only the sentence was affected by the error.

Accordingly, the findings of guilty are affirmed. The sentence is set aside. A rehearing on the sentence may be ordered by the same or a different convening authority.

Judge HAESSIG concurs.

1 . Appellant pleaded guilty and was found guilty of the larceny by exceptions and substitutions which did not change the nature of the offense.

2 . Despite its unusual form, the arrangement in appellant’s case is properly characterized as a "pretrial agreement.” A pretrial agreement can be reached after a trial has already started. See United States v. Walker, 34 M.J. 264, 265 (C.M.A. 1992); United States v. Schmeltz, 1 M.J. 8 (C.M.A.1975), rev’d on other grounds, 1 M.J. 273 (C.M.A. 1976). Although pretrial agreements are required by the Manual to be in writing, oral pretrial agreements and modifications have been held to be enforceable. See Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 705 [hereinafter R.C.M.]; United States v. Manley, 25 M.J. 346 (C.M.A.1987) (oral modifications to pretrial agreement enforced); United States v. Smith, 9 MJ. 537 (A.C.M.R. 1980) (pre-R.C.M. 705 case). Finally, agency principles apply when, as here, trial counsel acts on behalf of the convening authority. Cf. United States v. Manley, 25 M.J. 346 (C.M.A.1987); Satterfield v. Drew, 17 M.J. 269 (C.M.A.1984).

3 . This case was tried before the effective date of the change to R.C.M. 705(d) which permits the prosecution to propose conditions for pretrial agreements. Although we question whether a change to the Manual for Courts-Martial can change public policy expressed by a statutory provision, we need not decide that issue here.