This opinion is subject to administrative correction before final disposition.




                                Before
                  CRISFIELD, GERRITY, and COGLEY
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                   Antonio OLIVARES III
     Sonar Technician (Surface) Second Class (E-5), U.S. Navy
                            Appellant

                             No. 201800125

                            Decided: 8 July 2020

    Appeal from the United States Navy-Marine Corps Trial Judiciary

                             Military Judges:
                       Jason L. Jones (arraignment)
                         Warren A. Record(trial)

 Sentence adjudged 23 August 2019 by a general court-martial con-
 vened at Naval Air Station Jacksonville, Florida, consisting of a mili-
 tary judge sitting alone. Sentence approved by the convening authori-
 ty: reduction to E-1 and confinement for 22 months.

                            For Appellant:
                Captain Kimberly D. Hinson, JAGC, USN

                              For Appellee:
                           Brian K. Keller, Esq.
                        _________________________

      This opinion does not serve as binding precedent under
            NMCCA Rule of Appellate Procedure 30.2(a).
                       United States v. Olivares, No. 201800125
                                Opinion of the Court

                                _________________________

PER CURIAM:
    After careful consideration of the record, submitted without assignment of
error, we have determined that the approved findings and sentence are cor-
rect in law and fact and that no error materially prejudicial to Appellant’s
substantial rights occurred. 1
   However, the military judge did not properly advise Appellant of the max-
imum punishment for the offenses he was pleading guilty to in accordance
with Rule for Courts-Martial 910(c). During the plea agreement discussion
with Appellant, the military judge incorrectly advised:
             MJ:       Table A under paragraph 10 includes sentencing
                       limits, minimum and maximum sentences for each
                       offense and requirements for me to impose the sen-
                       tences to be served. Impose the sentences to be
                       served consecutively and did you understand the
                       maximum and minimum sentences that you could
                       receive at this court-martial?
            ACC:       Yes, sir, I do. 2
    Paragraph 10 of the plea agreement reflected that the military judge may
only sentence total confinement of between 22 and 24 months (based on spe-
cific offenses listed in Table A of the plea agreement); may not adjudge fines,
but may adjudge without limitation a punitive discharge, forfeiture, reduc-
tion, or other lawful punishment. 3 Under the section of the plea agreement
titled “Agreements by the accused,” the parties partially referenced the max-
imum punishments for each offense Appellant would be pleading to, but the
parties omitted any reference to reduction in paygrade. 4 Appellant should
have been advised by the military judge that the maximum sentence was con-
finement of 24 months, a dishonorable discharge, total forfeiture of pay and
allowances, reduction to paygrade E-1, and any other lawful punishment. The
military judge erred by not properly advising Appellant.




   1   Arts. 59, 66, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 859, 866.
   2   Record at 82.
   3   App. Ex. XX at 11-12.
   4   Id. at 2-8.


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                      United States v. Olivares, No. 201800125
                               Opinion of the Court

   Our superior court in United States v, Mincey, stated:
         A plea of guilty may be improvident because it is predicated
         upon a substantial misunderstanding on the accused’s part of
         the maximum punishment to which he is subject. Although we
         have rejected a mathematical formula to determine what mis-
         understanding amounts to a substantial misunderstanding, we
         will take into consideration all the circumstances of the case
         . . . to determine whether the misapprehension of the maxi-
         mum sentence affected the guilty plea, or whether that factor
         was insubstantial in [Appellant’s] decision to plead guilty. 5
  We will review the error in the failure to advise Appellant of the maxi-
mum punishment for whether it prejudiced his substantial rights. 6
   Appellant was represented by qualified military legal counsel and “[i]n
the absence of any other evidence, . . . it is fair to assume that prior to per-
mitting a defendant to enter a plea of guilty, a qualified defense counsel
would have discussed all aspects of possible punishments with his client.” 7
Trial defense counsel was vigorous in representing Appellant and obtained a
beneficial plea agreement, so the presumption that the trial defense counsel
was competent is valid. 8 Appellant faced up to 89 months confinement based
upon his pleas, but the plea agreement limited his maximum confinement to
24 months while also dismissing multiple charges.
    The plea agreement, which Appellant and his counsel signed, contains
almost all of the maximum punishments, and Appellant stated to the mili-
tary judge that he had read and understood the plea agreement and under-
stood the minimum and maximum sentence. Although the reduction to E-1
was not specifically included in the plea agreement, any confinement requires
reduction to E-1 under Article 58a, UCMJ, and the trial counsel asked for re-
duction to E-1 during argument.
    Appellant did not object when the military judge advised of the maximum
sentence, or when Appellant was sentenced, and did not raise the issue dur-
ing post-trial processing or on appeal. The military judge did not award a pu-



   5   42 M.J. 376, 378 (C.A.A.F. 1995) (citations omitted)
   6   United States v. Poole, 26 M.J. 272, 274 (C.M.A. 1988); United States v. Ballan,
71 M.J. 28, 30 (C.A.A.F. 2012) (citing Art. 59, UCMJ).
   7 United States v. Williams, 18 M.J. 186, 189 (C.M.A. 1984) (citation and internal
quotation marks omitted).
   8   United States v. Scott, 24 M.J. 186 (C.M.A. 1987).


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                      United States v. Olivares, No. 201800125
                               Opinion of the Court

nitive discharge, forfeitures, or other lawful punishment, all of which were
within his discretion. He only sentenced Appellant to reduction to E-1 and a
period of 22 months confinement, 2 months less than the maximum permit-
ted by the plea agreement. Finally, the record indicates that the pleas of
guilty were provident. 9 Therefore, the failure of the military judge to properly
advise Appellant of the maximum punishment was not an error that materi-
ally prejudiced Appellant’s substantial rights.
   The findings and sentence are AFFIRMED.


                                   FOR THE COURT:




                                   RODGER A. DREW, JR.
                                   Clerk of Court




   9   See Poole 26 M.J. at 274.


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