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

                             No. 201600396
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                    JAMES L. PLAGMANN, JR.
                Staff Sergeant (E-6), U.S. Marine Corps
                               Appellant
                        _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

 Military Judge: Lieutenant Colonel Eugene Robinson, Jr., USMC.
           Convening Authority: Commanding General,
           First Marine Aircraft Wing, Okinawa, Japan.
   Staff Judge Advocate’s Recommendation : Captain Gabriel D.
                        Boenecke, USMC.
          For Appellant: Captain James Kresge, USMCR
 For Appellee: Major Kelli O’Neil, USMC; Lieutenant Commander
                   Jeremy Brooks, JAGC, USN.
                     _________________________

                          Decided 27 July 2017
                         _________________________

     Before M ARKS , R UGH , AND J ONES , 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.
                       _________________________

   PER CURIAM:
   A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of one specification of violating a general
order and one specification of possession of child pornography, in violation of
Articles 92 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
                      United States v. Plagmann, No. 201600396


892 and 934 (2012).1 The military judge sentenced the appellant to four years’
confinement, reduction to pay grade E-1, total forfeitures, and a dishonorable
discharge. In accordance with a pretrial agreement (PTA), the convening
authority approved the sentence, suspended confinement in excess of 32
months, suspended adjudged forfeitures, waived automatic forfeitures for 6
months, and, except for the dishonorable discharge, ordered the sentence
executed.
    The appellant raises one assignment of error, averring that the
government violated a material term of his PTA when it introduced evidence
in aggravation during presentencing without giving proper notice as required
by the PTA. We disagree.
    After careful consideration of the record of trial and the pleadings of the
parties, we conclude that the findings and the sentence are correct in law and
fact, and that no error materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.
                                   I. BACKGROUND
   Over a two-and-a-half year period while stationed near Iwakuni, Japan,
the appellant possessed numerous images and videos of young children
engaged in graphic sexual activity, including oral and anal penetration. The
appellant also used his official government travel card on several occasions to
withdraw cash for personal use, in violation of Marine Corps Order 4600.40B.
    During pretrial negotiations, the trial counsel provided to civilian defense
counsel a draft stipulation of fact containing a list of evidence the trial
counsel sought to enter “into evidence as Prosecution Exhibits for use in
determining the accused’s sentence.”2 Subsequently, the parties arrived at an
agreement that provided, among other things, significant confinement and
forfeiture protections in exchange for the appellant’s pleas. The parties also
agreed to a stipulation of fact; however, the final stipulation did not include
the list of evidentiary items provided in the previous draft. Instead, the PTA
included a sentencing evidence provision:
             The Government and [the appellant] agree not to object to
         relevant service record documents, . . . relevant Naval Criminal
         Investigative Service evidentiary material, . . . relevant
         statements offered by the Government in aggravation to
         include written [statements] . . . of any victim or relevant

   1 The appellant pled guilty to two specifications of possessing child pornography

which were consolidated into a single specification by the military judge prior to
announcing findings.
   2   Appellate Exhibit (AE) XXI at 4, 5.


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         witness, . . . being offered by either party in the pre-sentencing
         phase of the trial on the basis of foundation, hearsay, lack of
         confrontation, or authenticity. Each party will provide the
         other party final witness and exhibit lists covered by this
         paragraph at least five (5) calendar days prior to the scheduled
         pre-sentencing proceeding.3
    The day before the appellant’s plea, the trial counsel provided the defense
copies of, or access to, all of the materials the government intended to
introduce into evidence in presentencing the next day. These included the
appellant’s personnel records, discs containing samples of videos recovered
from the appellant’s computer, law enforcement computer forensic reports,
and lengthy victim impact statements.
    Prior to the entry of pleas, the defense objected to the admission of these
documents, offered as Prosecution Exhibits (PE) 2 through 8, because the
government failed to provide the required five days’ notice. As a result, the
defense argued, they were not bound by the provisions related to objections
for foundation, hearsay, lack of confrontation, or authenticity in the PTA.
   The military judge overruled the defense’s objection, finding that the
defense was placed on notice of the government’s intended exhibit list
through the draft stipulation of fact—which included all of the items offered
as PE 2 through 8—and therefore the government had complied with the
PTA. Regardless, the military judge proposed to delay presentencing for five
days to permit the defense an opportunity to modify their case as
appropriate. The defense declined the continuance. Finally, the military
judge offered the appellant the opportunity to withdraw from the PTA. The
appellant declined this offer, as well.
   During presentencing, the defense renewed their objection to the exhibits.
The military judge again overruled the objection but offered the appellant a
second opportunity to withdraw from the PTA. He stated:
             So once again, the ultimate decision . . . rests with you,
         assuming that you want to proceed with the [PTA] to include
         the government’s use of Prosecution Exhibits 2 and 4 through
         8, each for identification.4 If you want to withdraw from the
         [PTA], the Court will . . . allow you the opportunity to do so. If
         you want to proceed with the [PTA], likewise, the Court will


   3   AE XIX at 3.
   4  PE 3, two discs containing videos of child pornography recovered from the
appellant, had been previously admitted and reviewed by the military judge in aid of
his acceptance of the appellant’s plea.


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         allow you to do so. Understand, the Court’s ruling and your
         counsel’s objection is overruled which means the Court will
         consider these exhibits. What is your desire?5
   The accused replied, “I do not wish to withdraw from the pretrial
agreement, Your Honor.”6
                                  II. DISCUSSION
    Interpretation of the “meaning and effect of a pretrial agreement . . . is a
question of law, subject to review under a de novo standard.” United States v.
Smead, 68 M.J. 44, 59 (C.A.A.F. 2009) (citation omitted). “Whether the
government has complied with the material terms and conditions of an
agreement presents a mixed question of law and fact.” United States v.
Lundy, 63 M.J. 299, 301 (C.A.A.F. 2006) (citations omitted). When an
appellant pleads guilty pursuant to a PTA, the voluntariness of his plea
hinges upon the government’s performance of those promises made in order
to secure the plea of guilty from the appellant. United States v. Perron, 58
M.J. 78, 82 (C.A.A.F. 2003).
    The appellant bears the burden of establishing that a term or condition of
the PTA was material to his decision to plead guilty, that the government
failed to comply with that term or condition, and therefore that his plea was
improvident. Lundy, 63 M.J. at 302. To assure that an appellant who has
waived “bedrock constitutional rights and privileges,” United States v. Soto,
69 M.J. 304, 306 (C.A.A.F. 2011), receives the benefit of his bargain, we look
beyond the terms of the PTA itself and consider “the accused’s understanding
of the terms of an agreement as reflected in the record as a whole.” Lundy, 63
M.J. at 301.
   Assuming without deciding that the draft stipulation of fact failed to meet
the notice requirement of the PTA, still, we decline to find that the five-day-
notice provision was material to the appellant’s decision to plead guilty.
    Prior to the entry of pleas, the military judge informed the appellant of
his intention to admit and consider PE 2 through 8 in presentencing. At the
same time, he offered the appellant the opportunity to delay presentencing
for five days as was provided for in the PTA. The appellant voluntarily
declined this offer. On two separate occasions, the military judge permitted
the appellant an opportunity to withdraw completely from the PTA. Again,
the appellant declined both opportunities.




   5   Record at 73.
   6   Id.


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   With full knowledge of the military judge’s interpretation of this PTA
provision and full opportunity to either gain specific performance of a five-day
waiting period or wholly withdraw from the agreement, nevertheless, the
appellant chose to press on. As a result, we can comfortably conclude that the
appellant viewed any non-compliance by the government as immaterial to his
decision to plead guilty.
                              III. CONCLUSION
   The findings and the sentence, as approved by the convening authority,
are affirmed.
                                       For the Court




                                       R. H. TROIDL
                                       Clerk of Court




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