UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             COOK, TELLITOCCI, and HAIGHT
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                 Specialist JONATHAN R. CHAVEZ-CORRALES
                           United States Army, Appellant

                                     ARMY 20120640

                              Headquarters, Fort Carson
                         David H. Robertson, Military Judge
                    Colonel John S.T. Irgens, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Susrut A. Carpenter, JA (on
brief); Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageliery, Jr., JA; Major
Vincent T. Shuler, JA; Captain Michael J. Millios, JA (on reply brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Elisabeth A. Claus, JA; Captain Sean Fitzgibbon, JA (on brief).


                                        31 July 2014
                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

COOK, Senior Judge:

        A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of absence without leave and one
specification of wrongfully distributing cocaine on divers occasions, in violation of
Articles 86 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 912a
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge and to be confined for 18 months. The convening authority, pursuant to a
pretrial agreement, only approved six months of confinement and a bad-conduct
discharge. The convening authority also awarded appellant 160 days of confinement
credit.
CHAVEZ-CORRALES—ARMY 20120640

      This case is before us pursuant to Article 66, UCMJ. Appellant raises two
assignments of error which merit discussion but no relief.

                                     BACKGROUND

                      Waivable Motions, Speedy Trial, and Waiver

       Both of appellant’s assigned errors involve a clause in appellant’s pretrial
agreement that required him to “[waive] all waivable motions.” 1 During the inquiry
into the providency of appellant’s guilty plea, the military judge discussed the
ramifications of this clause with appellant and his defense counsel as follows:

               MJ: [Paragraph] 3d requires you to waive all waivable
               motions.     Has your defense counsel discussed this
               provision of your pretrial agreement with you?

               ACC: Yes she did, sir.

               MJ: And Defense Counsel which motions are you not
               making as a result of this provision?

               DC: Your honor, the only motion we would have made is
               a motion for [UCMJ] Article 13 credit. [Appellant] . . . is

1
    Assignment of Error I alleges:

               THE MILITARY JUDGE ABUSED HIS DISCRETION BY
               VIOLATING [Rule of Court-Martial] 705(c)(1)(B) WHEN
               HE ACCEPTED APPELLANT’S PRETRIAL
               AGREEMENT WITH A PROVISION THAT STATES,
               “WAIVE ALL WAIVABLE MOTIONS” AFTER
               ELICITING THAT IT INCLUDED A WAIVER OF
               APPELLANT’S RIGHT TO A SPEEDY TRIAL.

Assignment of Error II alleges:

               [Appellant] WAS DENIED HIS SIXTH AMENDMENT
               RIGHT TO EFFECTIVE COUNSEL BECAUSE HIS
               DEFENSE COUNSEL ALLOWED THE GOVERNMENT
               TO INSIST ON A PRETRIAL AGREEMENT TERM
               THAT WAIVED SPEEDY TRIAL MOTIONS IN
               VIOLATION OF [Rule of Court-Martial] 705(c)(1)(B).




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CHAVEZ-CORRALES—ARMY 20120640

        on the record [as having been] placed in pretrial
        confinement. It took a while to get his pay turned on.
        The pay [had been] turned off. It took me and my
        paralegal telling his unit Battalion XO that they needed to
        change the [DA Form] 4187. They finally did that and got
        the pay turned back on.

        In addition, [appellant] had requested his medicine . . .
        when he [was initially placed in pretrial confinement]. He
        continued to ask . . . facility [personnel] as well as
        mention it to chain of command individuals who came and
        visited him. [I had also], in the beginning . . . mentioned
        it to the prosecution. But for the agreement and the deal
        he is receiving I would have made that motion.

        MJ: Specialist Chavez, you need to understand that
        certain motions are waived or given up if defense counsel
        does not make the motion prior to entering a plea. Some
        motions, however, can never be given up and those
        motions would include; dismissal for lack of jurisdiction
        or for failure to state an offense which can never be given
        up.

        Now, do you understand that this term of your pretrial
        agreement means that you give up the right to make this
        Article 13 illegal pretrial punishment motion?

        ACC: Yes, sir.

        MJ: And in particular,   this provision means that this court
        or any appellate court    is then precluded from reviewing
        that motion and if you   were entitled to credit, giving you
        some credit off your      sentence for any illegal pretrial
        punishment?

        ACC: Yes, sir.

        MJ: Now, when you elected the right to give up litigating
        these motions, did your defense counsel have a chance to
        explain this term of your pretrial agreement to you?

        ACC: Yes, sir.




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             MJ: Did anyone force you to enter into this term of your
             pretrial agreement?

             ACC: No, sir.

             MJ: And which side originated this term of the pretrial
             Agreement?

             TC: We did, your honor, the government.

             MJ: Now, although the government originated this term of
             your pretrial agreement did you freely and voluntarily
             agree to this term of your pretrial agreement in order to
             receive what you believe is a beneficial pretrial
             agreement?

             ACC: Yes, sir.

             MJ: Now, do you have any other questions about this term
             of the pretrial agreement?

             ACC: I do not, sir.

      Immediately after completing this portion of the colloquy, the military judge,
sua sponte, initiated a discussion in regards to the issue of a speedy trial:

             MJ: Now, defense counsel, I’m not sure if there is any
             merit to these motions, but did you also look into the issue
             of speedy trial?

             DC: Yes, your honor. After reviewing it and discussing it
             with my client there is enough defense delay in
             negotiating the deal, the agreement that we came to, that I
             did not believe it was warranted. Despite the fact that
             there were times that I felt it took longer than necessary to
             get things signed because the brigade commander is
             forward and did not leave jurisdiction to anybody else to
             sign for him. So that was a lot of the hold up, but due to
             the fact that a lot of it had to do with negotiations I do not
             believe that the speedy trial motion is warranted.

             MJ: And so you looked into it under [Rule for Courts-
             Martial] 707, Article 10, [UCMJ], 5th and 6th
             Amendments?



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CHAVEZ-CORRALES—ARMY 20120640

             DC: Yes, Your Honor.

             MJ: Is that something you have discussed with your
             client?

             DC: I did, Your Honor.

             MJ: By this provision you are expressly waiving any such
             motions?

             DC: I am, Your Honor.

             MJ: Is that also your understanding Specialist Chavez?

             ACC: Yes, sir.

The military judge then continued to discuss additional provisions of the pretrial
agreement with appellant, ultimately finding appellant’s guilty plea to be provident.

                              LAW AND DISCUSSION

        “A pretrial agreement may not be conditioned on the accused’s waiver of his
statutory and constitutional right to speedy trial.” United States v. Benitez, 49 M.J.
539, 541 (N.M. Ct. Crim. App. 1998) (citing United States v. Cummings, 17
U.S.C.M.A. 376, 378, 38 C.M.R. 174, 176 (1968) (overruled on other grounds by
United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009)). Rule for Courts-Martial [
hereinafter R.C.M.] 705(c)(1)(B) prohibits the enforcement of pretrial agreement
terms that deprive an accused of certain rights, to include “the right to a speedy
trial.” However, an unconditional “plea of guilty that results in a finding of guilty
waives any speedy trial issue as to that offense.” R.C.M. 707(e). In addition, our
superior court, in United States v. Tippit, 65 M.J. 69, 75 (C.A.A.F. 2007) found that
an unconditional “plea of guilty which results in a finding of guilty” not only waives
any speedy trial issue under R.C.M 707(e), but “also waives any speedy trial issue as
to that offense under the Sixth Amendment.”

       In initially clarifying what motions were being waived pursuant to the “waive
all waivable motions” clause in the pretrial agreement, appellant and his counsel did
not identify speedy trial as an issue. To the contrary, appellant’s counsel stated the
only motion impacted by this clause was “a motion for Article 13 credit.”
Appellant’s counsel specifically stated that based on issues involving appellant’s
pay and deprivation of medicine, she believed valid grounds existed to support a
motion seeking Article 13, UCMJ, credit on appellant’s behalf. It was this motion
she and appellant were precluded from filing as a result of the “waive all waivable
motions” clause.



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      After appellant’s counsel identified the Article 13, UCMJ motion as the only
one covered by the “waive all waivable motions” clause, the military judge ensured
appellant understood the ramifications of waiving this motion; that he had
voluntarily agreed to this term; and that he had no questions about this term. It was
only after this discussion that the military judge broached the speedy trial issue.

        Although it is not entirely clear from the record as to why the military judge
inquired into the issue of speedy trial, appellant had spent approximately 160 days in
pretrial confinement at the time of trial and about 155 days had transpired from the
preferral of charges until appellant was arraigned. 2 Absent “excludable delay[s],”
R.C.M. 707 requires that an accused be brought to trial within 120 days after the
preferral of charges or imposition of pretrial restraint, whichever occurs earlier.
R.C.M. 707(a)(1) and (2). It is therefore plausible the military judge was acting out
of an abundance of caution to ensure the record reflected that this issue was
discussed at trial. In asking appellant’s counsel about the plausibility of a speedy
trial violation, the military judge specifically inquired into whether defense counsel
had considered the applicability of R.C.M. 707, Article 10, UCMJ, and the Fifth and
Sixth Amendments to appellant’s case.

       It is important to note appellant’s counsel emphasized the lack of merit
associated with a speedy trial motion when discussing it with the military judge. In
response to the military judge’s questions about the issue of speedy trial, defense
counsel stated that because there was “enough defense delay” involved in the
negotiations surrounding the pretrial agreement, she did “not believe that the speedy
trial motion [was] warranted.” In addition, in response to another question by the
military judge about the issue of speedy trial, appellant’s counsel stated her review
of a speedy trial issue included R.C.M. 707, Article 10, UCMJ, and the Fifth and
Sixth Amendments to the U.S. Constitution.

       It was at this point in the proceedings, after appellant’s counsel had
repeatedly stated she was not pursuing a speedy trial motion, based on a lack of
merit, that the military judge inexplicably asked her if she was “expressly waiving
any such motions” as a result of “this provision,” presumably referring to the “waive
all waivable motions” clause found in the pretrial agreement. Appellant’s counsel
and appellant agreed with the military judge and then, with no further discussion, the
military judge began discussing the next provision in the pretrial agreement.



2
 Appellant was placed in pretrial confinement on 18 January 2012. Charges were
preferred against appellant on 24 January 2012. Appellant was arraigned and tried
on the same day, 26 June 2012.




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        Appellant now argues that (1) he has not waived his right to raise a speedy
trial issue pursuant to R.C.M. 707(e), because his pretrial agreement contained a
clause that required him to waive his right to a speedy trial; and (2) that his defense
counsel was ineffective because she “erroneously bargained away the right to raise
speedy trial.” Appellant equates his situation to the one faced by our sister court in
Benitez and requests he be granted similar relief.

       While we agree that Benitez is helpful in deciding appellant’s case, we find its
application ultimately affords appellant no relief. Benitez’s pretrial agreement
contained a clause requiring him to waive “all non-constitutional or non-
jurisdictional motions.” Benitez, 49 M.J. at 540. When the military judge inquired
into this term, it became apparent not only that his counsel had intended to raise a
speedy-trial motion except for this clause, but the clause was “initiated by the
Government in order to prevent the appellant from raising the issue at trial in return
for a favorable agreement.” Id. at 541.

       Having found this provision in violation of R.C.M. 705(c)(1)(B), the court in
Benitez could not conclude the error was harmless because (1) the government had
precluded the defense from making the motion and (2) their review of the record
revealed unexplained delays in the pretrial processing of the case that may have
supported a speedy trial motion. Id. at 541-42. As a result of their analysis, the
Navy-Marine Corps court in Benitez ultimate set aside the findings and sentence. Id.
at 542.

       Here, unlike Benitez, defense counsel stated the only motion she did not file
as a result of the pretrial agreement was an Article 13 motion, not a speedy trial
motion. Although defense counsel reviewed the issue, she specifically discounted
filing a speedy trial motion. This was not due to a clause in the pretrial agreement,
but because the motion was without merit. Again unlike Benitez, there is no evidence
in the record the government insisted on the clause in issue being included in the
pretrial agreement to specifically preclude the defense from filing a speedy trial
motion. Our superior court found this lack of government coercion to be crucial in a
similarly situated case. See United States v. Rivera, 46 M.J. 52, 55 (C.A.A.F. 1997)
(“[I]n the absence of any evidence of coercion, overreaching, or an attempt to
enforce the agreement in a manner contrary to [R.C.M.] 705(c)(1)(B), we conclude
appellant is entitled to no relief.”).

       In addition, it is important to note the lack of logical reasoning associated
with the military judge’s question concerning whether appellant’s counsel was
waiving a speedy trial motion only as a result of the clause in question. Appellant’s
counsel had just stated: (1) the only motion she was waiving in regards to this clause
concerned Article 13; and (2) based on her review of the case, any speedy trial
motion was unwarranted. Therefore, the question served no valid purpose.
Although counsel responded affirmatively to this question, the rest of the record



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stands in stark contrast and renders this response irrelevant. The military judge
bears primary responsibility for injecting this issue into a straightforward guilty-plea
inquiry. However, government counsel, who in this case were responsible for
adding this clause to the pretrial agreement, must remain vigilant on the limitations
associated with such provisions. Government counsel who include this term in
agreements as mere boilerplate needlessly inject potential issues into trials.

       Accordingly, we find the “waive all waivable motions” clause did not require
appellant to waive his right to a speedy trial. The record reflects no evidence of
coercion or an attempt to enforce the pretrial agreement in a manner contrary to
R.C.M. 705(c)(1)(B). We therefore conclude appellant is not entitled to relief, and
his unconditional plea of guilty and failure to litigate the speedy trial issue resulted
in a finding of guilty that waived any speedy trial issue as to that offense. R.C.M.
707(e); see also Tippit, 65 M.J. 69; United States v. Mizgala, 61 M.J. 122 (C.A.A.F.
2005).

                                  CONCLUSION
 
      We hold the findings of guilty and the sentence as approved by the convening
authority correct in law and fact. The findings of guilty and the sentence are
AFFIRMED.

      Judge TELLITOCCI and Judge HAIGHT concur.


                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




                                       MALCOLM H. SQUIRES, JR.
                                        MALCOLM H. SQUIRES, JR.
                                       Clerk of Court
                                        Clerk of Court




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