               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.
                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         CHADD L. BAKER
                  SERGEANT (E-5), U.S. MARINE CORPS

                            NMCCA 201300402
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 1 August 2013.
Military Judge: LtCol Elizabeth Harvey, USMC.
Convening Authority: Commanding Officer, 9th Communication
Battalion, I Marine Expeditionary Force Headquarters Group,
I MEF, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: Col S.D. Marchioro,
USMC.
For Appellant: CDR Suzanne Lachelier, JAGC, USN.
For Appellee: CDR James E. Carsten, JAGC, USN.

                           28 February 2014

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge sitting as a special court-martial
convicted the appellant, pursuant to his pleas, of one
specification of unauthorized absence terminated by
apprehension, two specifications of violation of a lawful
general order by using and possessing designer drugs, and one
specification of marijuana possession, in violation of Articles
86, 92, and 112a, Uniform Code of Military Justice, 10 U.S.C.
§§ 886, 892, and 912a. The military judge sentenced the
appellant to six months’ confinement, reduction to pay grade E-
1, and a bad-conduct discharge. The convening authority (CA)
approved the sentence as adjudged and, except for the punitive
discharge, ordered the sentence executed. In accordance with
the pretrial agreement (PTA), the CA suspended all confinement
in excess of time served (84 days).

     The appellant’s sole assignment of error makes two
assertions. First, the appellant asserts that after the
military judge inadvertently became aware of certain terms of
the pretrial agreement in advance of the presentencing
proceeding, she failed to fully disclose those terms. Second,
the appellant asserts that this failure to disclose renders his
waiver of a challenge to the military judge unconstitutional
because it was not knowing and voluntary. We disagree.

     After carefully considering the record of trial and the
submissions of the parties, we are convinced that the findings
and sentence are correct in law and fact, and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                              Background

     While in pretrial confinement awaiting trial, the
appellant, a 29-year-old sergeant, entered into a PTA where he
agreed to plead guilty to the wrongful use of “bath salts,”
possession of “bath salts” and marijuana, and an eight-month
unauthorized absence terminated by apprehension. The PTA
included a time-served provision. Pursuant to the PTA, the
appellant also agreed to plead guilty unconditionally.

      Once the PTA was signed, the trial counsel requested the
military judge expedite the docketing of the appellant’s case,
at which time an e-mail was forwarded to the military judge by
the trial counsel’s chain of command. This e-mail inadvertently
disclosed the time-served provision and the fact that the
appellant was in pretrial confinement. As a result of the PTA
disclosure, the military judge held a RULE FOR COURTS-MARTIAL 802,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) conference the
morning of the trial to inform the appellant’s trial defense
counsel of the fact that she was privy to presentencing
information, inconsistent with R.C.M. 910(f)(3).1

1
  R.C.M. 910(f)(3) states that “in trial before military judge alone the
military judge ordinarily shall not examine any sentence limitation contained

                                      2
     Prior to the guilty plea inquiry, the military judge
disclosed, on the record, that she had been made aware of a
sentencing provision “alluding to or stating at least a portion
of the protection that [the appellant] receives under part two
of the PTA.”2 She then informed the appellant that this issue
could be used to challenge her, or it could be waived by the
defense.3 Neither defense counsel nor trial counsel requested
voir dire or challenged the military judge. The military judge
next asked defense counsel if his client wished to proceed
despite the fact that she was aware of “some of the protections
involved in part two of the PTA,” to which defense counsel
replied: “Yes, ma’am. And I’ve discussed it with Sergeant Baker
and he’s aware, and he’s willing to waive that issue.”4 The
military judge further informed the appellant of his right to a
fair and impartial sentence as well as his right to have a judge
who has no knowledge of the sentence limitation.5 The appellant

in the agreement until after the sentence of the court-martial has been
announced.”
2
    Record at 12.
3
  “MJ: There is one issue that yesterday - this case was not originally on the
docket for this week. There was a request made yesterday by the trial
counsel’s chain of command asking that it be brought to court, basically, as
a walk-in. As part of the communication back and forth between the judiciary
and the counsel, there was an e-mail that was forwarded that had been
originally sent through the trial chain of command that did contain within it
a sentence alluding to or stating at least a portion of protection that
Sergeant Baker receives under part two of the PTA. Ordinarily the military
judge wouldn’t be privy to that information, but because I read the e-mail, I
saw it.

      I raised that to defense counsel this morning and asked -- from my
research of the case law, it’s an issue that can be waived by the defense,
and so, I asked Captain Lovell whether he-you know, let him know what
happened, and then asked him to discuss with his client whether it’s
something that he wished to waive or is something that he wanted to sort of
perhaps use as a reason to challenge the military judge.

      I’ll get into the rest of the 802 in a moment, but in our discussion
this morning following that e-mail exchange, Captain Lovell did inform the
court that his client intended to waive that issue and proceed today.”

Id.
4
    Id.
5
  Speaking to the appellant, the military judge stated “[Y]ou do have a right
to have somebody who doesn’t know that information [the PTA], so you could
wait and you could have another military judge next week who would be
available to hear the case who wouldn’t have any of that knowledge. So, it’s

                                      3
acknowledged that he understood his right and expressed his
desire to proceed.

              Knowing and Voluntary Waiver by Appellant

     The sufficiency of a waiver of a constitutional right is a
question of law which this Court reviews de novo. United States
v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996).

      When accepting a waiver of the accused’s right to
challenge the military judge, the military judge must determine
that the waiver is both knowing and voluntary. United States v.
Hansen, 59 M.J. 410, 414 (C.A.A.F. 2004) (citing Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)). The military judge may
accept this waiver of any grounds for disqualification arising
under R.C.M. 902(a), provided the judge provides a “full
disclosure on the record of the basis for disqualification.”
R.C.M. 902(e). See also United States v. Villa, 42 C.M.R. 166
(C.M.A. 1970). Further, the court “will not presume or imply
that a military accused understood [his rights] and waived them,
absent a demonstrable showing in the record that he did in fact
do so.” Hansen, 59 M.J. at 414 (emphasis added).

     As a predicate matter, we are unpersuaded by the
appellant’s argument that the military judge failed to
fully disclose the sentence limitation terms of which she
inadvertently became aware. Our review of the record
convinces us that both parties understood that the military
judge was referencing a time-served provision in the
sentence limitation.6 Neither trial defense counsel nor the
appellant expressed any confusion or surprise following her
explanation or events or summary of the earlier R.C.M. 802
conference. Furthermore, at several junctures during the
providence inquiry, the military judge reiterated the
appellant’s right to challenge the military judge, or at a
minimum to voir dire her on the matter. At no time during

your decision whether you want to proceed today or wait until you have a
military judge who doesn’t have that information. What do you want to do?”
The appellant replied: “Proceed, Your Honor.” Id. at 13.
6
  On the matter of what the e-mail suggested, the military judge stated:
“ordinarily when counsel request a walk-in guilty plea for an accused who’s
in pretrial confinement, the military judge may sort of, it’s not usually a
surprise if there is something having to do with one’s in confinement around
the time when that the accused has already served at play, so it’s not a
complete surprise to have learned what I did about part two of your PTA.”
Id.


                                      4
the plea colloquy does defense counsel ask for
clarification on the record as to the PTA term disclosed to
the military judge, or move to disqualify the judge, both
actions that were well within their prerogative.7 We find
that the military judge took more than adequate precautions
to ensure the appellant was fully aware of the right he was
waiving.

     Accordingly, we find that the appellant effectively
waived his right to challenge the military judge.

    Military Judge’s Knowledge of a Sentence Limitation in the PTA

     Even if we were not to apply waiver in this case, we would
still conclude that the appellant is not entitled to relief.

     A military judge’s decision on recusal is subject to an
abuse of discretion standard. United States v. Phillipson, 30
M.J. 1019, 1022 (A.F.C.M.R. 1990).

     As stated in R.C.M. 910(f)(3), in a court-martial before a
military judge alone, the military judge “ordinarily shall not
examine any sentence limitation contained in the agreement until
after the sentence of the court-martial has been announced.”
However, a military judge is not automatically disqualified
based on knowledge of sentence limitations reached in a PTA,
because a military judge (sitting alone) is entitled “to the
presumption that they have performed their sworn duty properly,
in the absence of a clear indication to the contrary.”8 Military
judges are only required to recuse themselves from a proceeding
when their impartiality might reasonably be questioned.9

     Here, the military judge inadvertently gained knowledge of
a portion of the sentence limitation. The military judge
appropriately brought this matter to the attention of counsel,
and made them aware of their right to either voir dire or
challenge her based on the disclosure. The appellant, after
repeated instructions by the military judge of his right to a
new judge, instead chose to proceed with the case. The military
judge’s decision not to recuse herself was consistent with her
discretion under R.C.M. 902(a) and, based on our review of the

7
    Id. at 12-13.
8
    Phillipson, 30 M.J. at 1021 (citation and footnote omitted).
9
    Id. at 1022; R.C.M. 902(a).


                                        5
record of trial, entirely proper.10 Further, the record
discloses nothing to indicate that the sentence given by the
military judge was in any way influenced by the information she
was made privy to. For these reasons, we find that the military
judge did not err by failing to specify the sentence limitation
she became aware of. Nor do we find that the military judge’s
failure to recuse herself after learning of the term amounts to
an abuse of discretion.

                                Conclusion

     We affirm the findings, and the sentence as approved by the
convening authority.

                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




10
  Under these circumstances, even if trial defense counsel had raised a
challenge to the military judge, the military judge would still have been
well within her discretion to refuse to recuse herself. See Phillipson, 30
M.J. at 1021.

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