                    UNITED STATES, Appellee

                                 v.

            Sergio SOTO Jr., Private First Class
                    U.S. Army, Appellant

                           No. 10-0397

                    Crim. App. No. 20090255

    United States Court of Appeals for the Armed Forces

                   Argued December 14, 2010

                   Decided January 21, 2011

RYAN, J., delivered the opinion of the Court, in which
EFFRON, C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.

                              Counsel

For Appellant: Captain Brent A. Goodwin (argued); Colonel
Mark Tellitocci, Lieutenant Colonel Imogene M. Jamison,
Lieutenant Colonel Jonathan Potter, and Major Peter
Kageleiry (on brief); Lieutenant Colonel Matthew M. Miller
and Captain Shay Stanford.

For Appellee: Captain Christopher B. Witwer (argued);
Major Christopher B. Burgess and Major LaJohnne A. White
(on brief).


Military Judge:   Robert R. Rigsby




      THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Soto, No. 10-0397/AR


     Judge RYAN delivered the opinion of the Court.

     Pursuant to his pleas, Appellant was found guilty by a

military judge sitting as a special court-martial of two

specifications of absence without leave, and one

specification each of the following:    making a false

official statement, damaging property, and larceny, in

violation of Articles 86, 107, 109, and 121, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. §§ 886, 907, 909, 921

(2006).   Appellant was sentenced to a reduction to the

grade of E-1, confinement for two months, and a bad-conduct

discharge.   Per the terms of the pretrial agreement, the

convening authority approved only the punitive discharge.

The United States Army Court of Criminal Appeals (ACCA)

reviewed Appellant’s case and summarily affirmed

Appellant’s conviction.   See United States v. Soto, No.

20090255, slip op. at 1 (A. Ct. Crim. App. Feb. 17, 2010)

(per curiam).

     Appellant filed a petition for grant of review on

April 15, 2010, and on July 13, 2010, we granted

Appellant’s petition on the following issue:

     WHETHER THE PRETRIAL AGREEMENT CONTAINED A PROHIBITED
     AND UNENFORCEABLE PROVISION REQUIRING APPELLANT TO
     “OFFER TO REQUEST A BAD[-]CONDUCT DISCHARGE DURING THE
     SENTENCING PHASE” THEREBY VIOLATING RULE FOR COURTS-
     MARTIAL 705(c)(1)(B) AND PUBLIC POLICY.




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United States v. Soto, No. 10-0397/AR


United States v. Soto, 69 M.J. 198, 198 (C.A.A.F. 2010)

(order granting review) (alteration in original).

     In this case, the provision in question was placed in

the quantum portion of the pretrial agreement (PTA),

notwithstanding the fact that it was not a quantum

limitation on the sentence.   The provision was neither

disclosed to the military judge prior to his accepting

Appellant’s plea of guilty (although the military judge

specifically asked whether there were any conditions in the

quantum portion), nor was it discussed with Appellant

before, during, or after the providence inquiry.    We hold

that under these facts, the plea inquiry was improvident.

                               I.

     Appellant and the convening authority entered into a

pretrial agreement.   The pretrial agreement had two

components:   an “Offer to Plead Guilty” and Appendix I,

“Quantum.”    In the quantum portion of the pretrial

agreement, Appellant agreed to:     (1) plead guilty to the

Charges and Specifications, as set forth in the Offer to

Plead Guilty; (2) abide by the other terms and conditions

set forth in the Offer to Plead Guilty; (3) request a bad-

conduct discharge during the sentencing phase of trial; and

(4) submit a post-trial Chapter 10 in the event the

military judge did not adjudge a discharge.


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United States v. Soto, No. 10-0397/AR


     The quantum portion of the pretrial agreement further

specified that in return for Appellant’s cooperation, the

convening authority would:    (1) approve no punishment other

than a bad-conduct discharge; (2) disapprove any sentence

to confinement; (3) disapprove any restriction; (4)

disapprove any fine; (5) disapprove any hard labor without

confinement; and (6) approve a post-trial Chapter 10,

should a discharge not be adjudged.

      At trial, the military judge conducted the inquiry

into the terms of the Offer to Plead Guilty component of

the PTA, in accordance with Rule for Courts-Martial

(R.C.M.) 910(f)(3) and (4).   However, because the provision

requiring Appellant to request a bad-conduct discharge at

trial appeared only in the quantum portion of the PTA, it

was not disclosed to the military judge, and was not

discussed with Appellant.

     Before accepting Appellant’s guilty plea, the military

judge addressed the quantum portion of the agreement as

follows:

     MJ: Counsel, are there any conditions or terms in the
     Quantum Portion other than a limitation on sentence?

     TC: No, Your Honor.

     DC: Your Honor, may I have a moment?

     MJ: Yes.



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United States v. Soto, No. 10-0397/AR


     [The defense counsel conferred with the accused.]

     DC: Your Honor, there is a condition other than a
     limitation on sentence.

     MJ: What is the condition?

     DC: Your Honor --

     MJ: I do not want to know the quantum, but I have to
     know what the condition is.

     DC: The condition is to --

     MJ: Hold on a second, does this deal with the sentence
     limitation?

     DC: No, Your Honor.

     MJ: Do you need a recess?

     . . . .

     [The court was recessed and reconvened.]

     MJ: . . . Private Soto, there is one condition in the
     quantum portion other than a limitation on sentence.
     Captain McDonald, is that your understanding?

     DC: Yes, Your Honor.

     MJ: Private Soto, is that your understanding?

     ACC: Yes, Your Honor.

     MJ: Captain Mackler, is that your understanding?

     TC: Yes, Your Honor.

     MJ: From what I understand . . . . It says that [the
     convening authority will] “Approve a Post[-]Trial
     Chapter 10 should a discharge not be adjudged.”

(Text in second set of brackets added.)   The condition in

the quantum portion of the PTA requiring Appellant to



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United States v. Soto, No. 10-0397/AR


request a bad-conduct discharge was neither disclosed to

the military judge nor discussed during the plea inquiry.

     During sentencing, defense counsel requested a bad-

conduct discharge.   After defense counsel made the request

for a punitive discharge during argument on sentencing, the

military judge asked Appellant to confirm that he

understood the nature of a punitive discharge, that he

himself desired a punitive discharge, and that he consented

to counsel’s request.   The only evidence presented at

sentencing was Appellant’s short unsworn statement which

included an acknowledgment of wrongdoing and an apology.

The military judge proceeded to sentence Appellant, inter

alia, to a bad-conduct discharge, which the convening

authority later approved pursuant to the pretrial

agreement.    Immediately after sentencing, the military

judge reviewed the quantum portion with Appellant,

discussing the convening authority’s obligations under the

PTA in some detail, but he failed to discuss the provision

requiring Appellant to request a bad-conduct discharge.

                              II.

     A plea of guilty is more than an admission of guilt --

it is the waiver of bedrock constitutional rights and

privileges.   Boykin v. Alabama, 395 U.S. 238, 242-43

(1969).   Under controlling Supreme Court precedent it is,


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United States v. Soto, No. 10-0397/AR


therefore, constitutionally required under the Due Process

Clause of the Fifth Amendment that a judge ensure that a

guilty plea be entered into knowingly and voluntarily.

Brady v. United States, 397 U.S. 742, 748 (1970); McCarthy

v. United States, 394 U.S. 459, 466 (1969).       It is

axiomatic that “[t]he military justice system imposes even

stricter standards on military judges with respect to

guilty pleas than those imposed on federal civilian

judges.”   United States v. Perron, 58 M.J. 78, 81 (C.A.A.F.

2003).

     In order to ensure that pleas of guilty are not only

knowing and voluntary but appear to be so, detailed

procedural rules govern the military judge’s duties with

respect to the plea inquiry.     See United States v. King, 3

M.J. 458, 459 (C.M.A. 1977) (noting that judicial scrutiny

of plea agreements at the trial level enhances public

confidence in the plea bargaining process).      The military

judge must ensure there is a basis in law and fact to

support the plea to the offense charged.      United States v.

Inabinette, 66 M.J. 320, 321-22 (C.A.A.F. 2008); R.C.M.

910(e).    Further, the military judge “shall inquire to

ensure:    (A)   That the accused understands the agreement;

and (B)    That the parties agree to the terms of the

agreement.”      R.C.M. 910(f)(4).   This inquiry is part and


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parcel of the providence of an accused’s plea, and

necessary to ensure that an accused is making a fully

informed decision as to whether or not to plead guilty.

King, 3 M.J. at 458-59.

       Relatedly, it is the military judge’s “responsibility

to police the terms of pretrial agreements to insure

compliance with statutory and decisional law as well as

adherence to basic notions of fundamental fairness.”

United States v. Partin, 7 M.J. 409, 412 (C.M.A. 1979)

(citation omitted).   It is for this reason that the R.C.M.

requires that the military judge “shall require” disclosure

of the entire agreement excepting the quantum limitations

before accepting a plea of guilty.   R.C.M. 910(f)(3).

Further, after the sentence is announced, the military

judge both “shall inquire” into any parts of the PTA not

previously examined, and ensure that an accused understands

all material terms.   R.C.M. 910(h)(3).   As we have

previously noted, an inquiry that falls short of these

requirements and fails to ensure the accused understands

the terms of the agreement is error.    United States v.

Felder, 59 M.J. 444, 445 (C.A.A.F. 2004); King, 3 M.J. at

459.

       None of these procedural safeguards were afforded in

this case with respect to the provision requiring Appellant


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United States v. Soto, No. 10-0397/AR


to request a bad-conduct discharge.   We cannot say, for

example, that the military judge considered whether the

provision in question complied with statutory or decisional

rules or was fundamentally fair.1   Nor can we say, based on

this record, that the military judge was aware that the

defense counsel requested the bad-conduct discharge, and

Appellant acceded to it, because it was a condition of the

PTA.   In fact, when the military judge specifically asked

whether there were conditions in the quantum portion of the

PTA, neither the Government nor the defense disclosed it.

Examining the quantum portion of the agreement after the

announcement of sentence, the military judge did not

acknowledge the term requiring Appellant to request a

punitive discharge during sentencing, let alone discuss it

with Appellant.

       “A fundamental principle underlying this Court’s

jurisprudence on pretrial agreements is that ‘the agreement

cannot transform the trial into an empty ritual.’”   United

1
  This is particularly significant given that the provision
in question is one of first impression, before this Court
at least. Although we resolve this case based on the
provision’s effect on the providence inquiry under the
facts presented here, and do not decide whether such a
provision violates R.C.M. 705(c), military judges need to
be ever vigilant in fulfilling their responsibility to
scrutinize pretrial agreement provisions to ensure that
they are consistent with statutory and decisional rules,
and “basic notions of fundamental fairness.” Partin, 7
M.J. at 412 (citation omitted).

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United States v. Soto, No. 10-0397/AR


States v. Davis, 50 M.J. 426, 429 (C.A.A.F. 1999) (quoting

United States v. Allen, 8 C.M.A. 504, 507, 25 C.M.R. 8, 11

(1957)).   Judicial scrutiny of PTA provisions at the trial

level helps to ensure that this principle is fulfilled.     It

is true that not every procedural failure results in an

improvident plea.   See, e.g., Felder, 59 M.J. at 446.    But

where, as here, the provision in question is one that goes

directly to the sentence requested by an accused and

imposed by the military judge, the provision is tucked away

in the quantum portion of the PTA (although it is not a

sentence limitation), and the parties fail to disclose the

provision in response to a direct question by the military

judge, the integrity of the guilty plea process itself is

undermined.

     While we are not suggesting that the parties

intentionally misled the military judge, under the facts

and circumstances of this case, it appears that the

military judge was unaware that Appellant’s request for a

bad-conduct discharge was required by the PTA.   Thus, we

cannot say the request did not influence the sentence

imposed.   Under the particular facts of this case we hold

that there is a substantial basis in law to question the

providence of Appellant’s plea.




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United States v. Soto, No. 10-0397/AR


                             III.

     The decision of the United States Army Court of

Criminal Appeals is reversed, and the findings and sentence

are set aside.   The record of trial is returned to the

Judge Advocate General, and a rehearing is authorized.




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