         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                            No. 201700062
                        _________________________

                 UNITED STATES OF AMERICA
                                Appellee
                                    v.

                         AUSTIN J. MICELI
               Lance Corporal (E-3), U.S. Marine Corps
                             Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

    Military Judge: Lieutenant Colonel Matthew J. Kent, USMC.
 Convening Authority: Commanding General , 1st Marine Division,
                        Camp Pendleton, CA.
    Staff Judge Advocate’s Recommendation: Lieutenant Colonel
                    Matthew J. Stewart, USMC.
        For Appellant: Captain W. Scott Laragy, JAGC, USN.
For Appellee: Captain Brian L. Farrell, USMC; Lieutenant Megan P.
                        Marinos, JAGC, USN
                       _________________________

                        Decided 31 August 2017
                        _________________________

    Before H UTCHISON , F ULTON , and R USSELL , Appellate Military
                               Judges
                        _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________

   RUSSELL, Judge:
    A military judge sitting as a general court-martial convicted the
appellant, consistent with his plea, of sexual assault by false pretense in
violation of Article 120(b), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 920(b). The appellant was sentenced to four years’ confinement,
                         United States v. Miceli, No. 201700062


reduction to pay grade E-1, and a dishonorable discharge. Pursuant to a
pretrial agreement (PTA), on 8 February 2017 the convening authority (CA)
approved the sentence as adjudged but suspended confinement in excess of 36
months, and waived automatic forfeitures for the remainder of the
appellant’s enlistment, which was a period greater than six months.1
    After the case was submitted without assignment of error, we specified
two issues: (1) does the waiver period ordered in the convening authority’s
action reflect a mutual misunderstanding of a material term in the PTA
regarding automatic forfeiture protections, resulting in an improvident guilty
plea?; and (2) if the plea was improvident, what relief is adequate to provide
the appellant with the benefit of his bargain? We find that the parties
mutually misunderstood a material PTA term, and further find specific
performance not possible. Because the parties cannot agree to an appropriate
alternative relief, we set aside the findings and sentence.
                                      I. BACKGROUND
    Before trial, the accused and the CA entered into a PTA.2 The CA agreed
to suspend all confinement in excess of 36 months for a period of 12 months
after the date of the CA’s action. The CA also agreed to defer and waive
automatic forfeitures in the amount of $1,566.90 per month if the accused
established and maintained a dependent allotment in that amount.
  After announcing the sentence, the military judge reviewed Part II of the
PTA and explained its impact:
         MJ: . . . And then, it looks as though you have a dependent
         allotment agreement with the [CA], in that if your dependent,
         [L.M.], provides proof of an allotment to the [CA] before the CA
         acts, he’ll defer any adjudged (sic) forfeitures under the
         agreement.
         Do you understand that provision?
         ACC: Yes, Your Honor.
         MJ: Okay.
         Do you understand all of the provisions of Part II?
         ACC: Yes, Your Honor.




   1   The appellant enlisted on 17 March 2014 for four years.
   2   Appellate Exhibits I and II.


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         MJ: Do counsel agree with the Court’s interpretation of Part II
         – that the reduction will be approved as adjudged, and – yeah –
         as well.
         Do counsel agree with the Court’s interpretation?
         TC: The government agrees, sir.
         DC: Yes, Your Honor.3
    The staff judge advocate’s recommendation (SJAR) advised the CA that
the appellant “ha[d] complied with the terms of the agreement and is entitled
to the agreed upon benefit.”4 The SJAR also advised “you are required to
defer and waive automatic forfeitures of any pay and allowances in the
amount of $1556.90 per month provided that the accused establishes and
maintains a dependent allotment.”5 There was no mention of any limit to the
duration of the waiver.
   The CA then waived automatic forfeitures for the remainder of the
accused’s enlistment as follows:
         Pursuant to the pretrial agreement, Forfeiture of and
         Pay and Allowances by operation of law in excess of
         $1566.90 pay per month is waived for the remainder of
         the accused’s enlistment provided the accused creates
         and maintains an allotment in the amount of the waived
         forfeitures[], during the period of waiver, to [L.M.], a
         dependent of the accused.6
    After we specified the issues, the appellant provided the court with a
declaration describing his understanding of the terms included in the PTA.
He stated that he believed the agreement provided for deferral of automatic
forfeitures for the remainder of his enlistment—a provision that was
important to him because he and his wife were expecting their first child.
                                  II. DISCUSSION
   Interpretation of a PTA’s meaning and effect is a question of law that we
review de novo. United States v Smead, 68 M.J. 44, 59 (C.A.A.F. 2009). An
appellant’s pleas are improvident when a mutual misunderstanding about a
material PTA term results in him not receiving the benefit of the bargain.
United States v. Perron, 58 M.J. 78, 82 (C.A.A.F. 2003) (citing United States

   3   Record at 53-54
   4   SJAR at 1.
   5   Id.
   6   GCMCO No. 02-2016 at 2.


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v. Hardcastle, 53 M.J. 299, 302 (C.A.A.F. 2000)); United States v. Williams,
53 M.J. 293, 296 (C.A.A.F. 2000)).
    Where an accused negotiates a PTA in exchange for his guilty pleas and
then does not reap the benefit of a material term of the agreement, his pleas
may be rendered improvident. The remedies for the government’s failure to
fulfill the promises contained in a PTA are generally specific performance or
withdrawal of the plea. Id. at 84.
A. Mutual misunderstanding of material PTA term
   As a predicate matter, we must first determine if the negotiated forfeiture
protection is a material term of the agreement. We find that it is.
    The appellant specifically bargained for a provision that would pay a
certain dollar amount to his wife. Forfeiture protection was “very important
to [the appellant] and [his] agreement to plead guilty rested in a significant
degree on it.”7 Thus, we have little difficulty concluding that the forfeiture
protection terms are material. See United States v. Moore, No. 200000603,
2000 CCA Lexis 206, at *8, unpublished op. (N-M. Ct. Crim. App. 15 Sep
2000) (finding that a “limitation on forfeitures was a material factor inducing
him to enter into a [PTA] and plead guilty[,]” where it was “evident from the
record,” including post-trial clemency submissions, “that the appellant
intended to negotiate an assurance from the Government that his dependent
children would receive a fixed amount of financial support from his pay for a
specific period of time while he served out his sentence”) (emphasis in
original).
   While the provisions of a PTA are negotiated between an accused and the
government, “it is the military judge’s ‘responsibility to police the terms of
[PTAs] to insure compliance with statutory and decisional law as well as
adherence to basic notions of fundamental fairness.’” United States v. Soto, 69
M.J. 304, 307 (C.A.A.F. 2011) (quoting United States v. Partin, 7 M.J. 409,
412 (C.M.A. 1979)). In policing a PTA, the military judge must confirm both
parties agree to the terms of the agreement and, more importantly, that “the
accused understands” it. United States v. Smith, 56 M.J. 271, 272-73
(C.A.A.F. 2002). Ultimately, the military judge must “address the parties’
understanding of any limitations on the sentence in order to assure that
there is a mutual agreement.” Id. at 273 (citations omitted).
   The fault does not lie with the military judge alone, however. The record
demonstrates that the appellant, the trial defense counsel, the trial counsel,
the staff judge advocate, and the CA all failed to recognize the CA’s inability


   7    Appellant’s Motion to Attach of 5 Jul 2017, Declaration of Appellant of 30 Jun
2017.


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to waive automatic forfeitures for a period extending beyond six months, as
set forth in Article 58b, UCMJ.
    The forfeiture provision of the PTA itself waives automatic forfeiture of
any pay and allowances due “during [the accused’s] enlistment[.]” The
provision further reads, “I understand that my enlistment is projected to end
on 17 March 2018, and that if I am in confinement after that date, I will not
receive any pay and allowances” pursuant to regulation. The next two
sentences reference Article 58b(a)(1), UCMJ, as the mechanism for deferment
and waiver of forfeitures. There is no mention, however, of Article 58b(b),
UCMJ, which limits the waiver period to six months from the CA’s action.
Additionally, the military judge did not address this limitation in his inquiry
into the provisions of the PTA with the appellant.8
    The appellant “understood that [he] would be paid until the end of [his]
enlistment in March 2018.”9 The CA apparently agreed: “Pursuant to the
pretrial agreement, Forfeiture of Pay and Allowances by operation of law in
excess of $1566.90 pay per month is waived for the remainder of the accused’s
enlistment[.]”10 This mutual misunderstanding of a material PTA term
renders the accused’s guilty plea improvident.
B. Remedy
   When specific performance is not possible, “[a]n appellate court may
determine that alternatives to specific performance or withdrawal of a plea
could provide an appellant with the benefit of his or her bargain[.]” Perron, 58
M.J. at 86.
   The parties cannot agree on alternative relief. The appellant requested
that we affirm only 22 months of the approved confinement,11 while the
government countered that we either waive automatic forfeitures for six

   8 On appeal, the government contends that the Post-Trial and Appellate Rights
Advisement, which does mention the six-month limitation, is dispositive because it
demonstrates that the appellant was aware – before trial – that forfeitures could only
be waived for six months from the date the convening authority acts. We disagree. If
anything, the possible contradiction between the PTA and the advisement should
have flagged the issue for the military judge’s further inquiry.
   9   Appellant’s Declaration of 30 Jun 2017.
   10  General Court-Martial Order 02-2017. Of note, even the erroneous action
denies the appellant the benefit of his bargain, since the action waives forfeitures in
excess of $1566.90 per month, not forfeitures of $1566.90 per month. However, the
appellant denies any prejudice from this oversight—and we find none—as the
appellant’s spouse has, in fact, received the agreed upon forfeiture amount. See
Appellant’s Brief and Assignment of Error of 5 Jul 2017 at 1, n.1.
   11   Appellant’s Brief at 12.


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months, remand for a corrected CA’s action, or set aside the appellant’s pleas
and authorize a rehearing.12 Accordingly, we have no option other than to set
aside the findings and sentence, authorizing a rehearing.
                                    III. CONCLUSION
    The findings and the sentence are set aside. The record of trial is returned
to the Judge Advocate General for remand to an appropriate CA with a
rehearing authorized.
   Senior Judge HUTCHISON and Judge FULTON concur.


                                                 For the Court




                                                 R.H. TROIDL
                                                 Clerk of Court




   12   Appellee’s Brief of 26 Jul 2017 at 11.


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