                       UNITED STATES, Appellee

                                    v.

        Jesse C. HUNTER, Machinery Technician Third Class
                   U.S. Coast Guard, Appellant

                            No. 07-0386

                          Crim. App. No. 1232

       United States Court of Appeals for the Armed Forces

                       Argued December 5, 2007

                       Decided January 11, 2008

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

                                 Counsel

For Appellant: Lieutenant Robert M. Pirone (argued); Lieutenant
Commander Nancy J. Truax (on brief).

For Appellee:   Lieutenant Commander Patrick M. Flynn (argued).

Military Judge:   Stephen McCleary




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hunter, 07-0386/CG


     Judge RYAN delivered the opinion of the Court.

     Appellant was convicted at a special court-martial,

pursuant to his pleas, of three specifications of failure to go

to his appointed place of duty, one specification of willful

dereliction of duty, one specification of larceny, and one

specification of dishonorable failure to pay a just debt, in

violation of Articles 86, 92, 121, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 886, 892, 921, 934 (2000).

The military judge sentenced Appellant to a bad-conduct

discharge, confinement for eight months, and reduction to E-1.

     The convening authority approved the bad-conduct discharge,

a reduction to E-2, confinement for eight months, and deferred

and waived automatic forfeitures.    Confinement in excess of 180

days was suspended for a period of twelve months from the date

of the convening authority’s action.   The United States Coast

Guard Court of Criminal Appeals affirmed the findings and

sentence.   United States v. Hunter, 64 M.J. 571, 575-76 (C.G.

Ct. Crim. App. 2007).

     We granted Appellant’s petitions on the following issues:

     I. WHETHER R.C.M. 705(c)(2)(D) PERMITS PRETRIAL
     MISCONDUCT TO FORM THE BASIS FOR A WITHDRAWAL FROM THE
     SENTENCING LIMITATION OF THE PRETRIAL AGREEMENT WHEN
     PRETRIAL MISCONDUCT, BY ITS VERY NATURE, CANNOT FALL
     WITHIN ANY PERIOD OF SUSPENSION AS REQUIRED BY R.C.M.
     1109 SINCE THERE IS NO SENTENCE PRIOR TO TRIAL.

     II. WHETHER APPELLANT’S PLEAS WERE IMPROVIDENT BECAUSE
     THE MILITARY JUDGE FAILED TO ENSURE THAT APPELLANT


                                 2
United States v. Hunter, 07-0386/CG


       UNDERSTOOD THE MEANING AND EFFECT OF THE MISCONDUCT
       PROVISIONS IN THE PRETRIAL AGREEMENT, AND THE
       CONVENING AUTHORITY SUBSEQUENTLY WITHDREW FROM THE
       SENTENCING LIMITATION PORTION OF THE PRETRIAL
       AGREEMENT BASED ON PRETRIAL MISCONDUCT.1

       We hold that, as long as the procedural protections set

forth in R.C.M. 1109 are either followed or waived, a convening

authority may withdraw before action from a pretrial agreement

(PTA) when the accused violates conditions established pursuant

to Rule for Courts-Martial (R.C.M.) 705(c)(2)(D).    We further

hold that Appellant has failed to demonstrate material prejudice

to a substantial right stemming from his plea colloquy;

therefore he is not entitled to relief.    Article 59(a), UCMJ, 10

U.S.C. § 859(a) (2000).     There is no evidence that Appellant

misunderstood the meaning and effect of the misconduct provision

within his PTA or that his understanding of it prejudiced his

ability to make a fully informed decision to plead guilty.

                       I.   Factual Background

        The relevant facts for resolution of the granted issues

are undisputed.    Appellant signed a PTA with the convening

authority two days prior to trial.     Appellant agreed to plead

guilty to the charged offenses before a military judge.      The

convening authority agreed to disapprove any reduction below the

pay grade E-2 and to suspend any confinement in excess of 120



1
    65 M.J. 300 (C.A.A.F. 2007).


                                   3
United States v. Hunter, 07-0386/CG


days for a period of twelve months from the date of the

convening authority’s action.

      The PTA also covered the consequences of additional

misconduct by Appellant after signing the PTA and before

completing any sentence.   It provided, inter alia, that if

Appellant committed misconduct after signing the agreement and

the convening authority acted on that misconduct after

Appellant’s guilty pleas were accepted but before the convening

authority took action under R.C.M. 1107, the convening authority

could set aside the sentence limitations, after affording

Appellant a hearing “‘substantially similar to the hearing

required by Article 72, UCMJ, [10 U.S.C. § 872 (2000)], and the

procedures based on the level of adjudged punishment set forth

in R.C.M. 1109(d), (e), (f), or (g).’”   Hunter, 64 M.J. at 572.

      Two events lead to the instant appeal.   First, the

military judge did not discuss the misconduct provisions in the

PTA with Appellant during the course of the providency inquiry.

Second, before the convening authority acted on the adjudged

sentence, Appellant was alleged to have committed misconduct.

An inventory of Appellant’s possessions upon entry to the brig

led to accusations that he was in possession of government

property that was either stolen or misappropriated.   And a

routine urinalysis administered to him upon entry to the brig

tested positive for marijuana.


                                 4
United States v. Hunter, 07-0386/CG


     The convening authority gave notice that he intended to

exercise the provision in the PTA that allowed a withdrawal from

the sentencing limitation contained in the agreement due to

Appellant’s alleged misconduct.   Under the specific terms of his

PTA, and by operation of R.C.M. 705 and R.C.M. 1109, Appellant

was entitled to a hearing to determine whether the alleged

misconduct occurred before the convening authority could

withdraw from any portion of the sentencing limitation set forth

in the PTA.

     But Appellant waived his right to a R.C.M. 1109 hearing.2

In exchange, the convening authority agreed that only the

confinement portion of the sentence limitation contained in the

PTA would be affected and further agreed not to take action on

the additional alleged misconduct.    The ultimate effect of the

above facts was that Appellant served sixty days of confinement

that, but for the alleged misconduct, would otherwise have been

suspended.

                         II.   Discussion

      Appellant argues that a misconduct provision in a PTA

governing misconduct that occurs before the convening authority

2
  It was argued that this waiver of the R.C.M. 1109 hearing in
exchange for sixty additional days of confinement was a new,
post-trial, agreement under United States v. Dawson, 51 M.J.
411, 413 (C.A.A.F. 1999). This is an incorrect characterization
of the events that transpired subsequent to the convening
authority’s decision to enforce the misconduct provision in the
pretrial agreement.


                                  5
United States v. Hunter, 07-0386/CG


acts pursuant to R.C.M. 1107 is per se impermissible under

R.C.M. 1109 because R.C.M. 1109 requires that the withdrawal be

during the “period of suspension,” or after R.C.M. 1107 action.

Appellant asserts, therefore, that the convening authority

breached his PTA by failing to suspend confinement in excess of

120 days, as required by that agreement when considered without

reference to the misconduct provision contained therein.    In

addition, Appellant contends that his guilty plea was

improvident because the PTA misconduct3 provision was not

explained to him by the military judge.   For the reasons set

forth below, we reject Appellant’s arguments and affirm the

decision of the Coast Guard Court of Criminal Appeals.

         A.   Intersection of R.C.M. 705 and R.C.M. 1109

     Appellant accepts that his PTA authorized a withdrawal by

the convening authority on the basis of misconduct that occurred

prior to convening authority action.   But he argues that this

provision is unlawful because R.C.M. 705(c)(2)(D) and R.C.M.

1109, read together, do not permit misconduct that occurred

prior to convening authority action to be used as the basis for



3
  We note that the granted issue and the party’s briefs refer to
“pretrial misconduct” and the “pretrial misconduct provision.”
Nothing in this type of case turns on whether the misconduct
happened before or after trial. Rather, pursuant to the PTA,
the pertinent inquiry is whether the convening authority acted
on the sentence before or after the misconduct provision was
enforced.


                                6
United States v. Hunter, 07-0386/CG


a withdrawal from the confinement limitation of a PTA.   We

disagree.

     The interpretation of provisions of the R.C.M., and whether

a term in a PTA violates the R.C.M., are questions of law that

we review de novo.   United States v. Tate, 64 M.J. 269, 271

(C.A.A.F. 2007).    Ordinary rules of statutory construction apply

in interpreting the R.C.M.   United States v. Clark, 62 M.J. 195,

198 (C.A.A.F. 2005).   We hold that R.C.M. 705(c)(2)(D)’s

reference to R.C.M. 1109 requires that the procedural

protections for a suspension and vacation proceeding under

R.C.M. 1109 be extended to withdrawal from sentence limitations

of a PTA based on allegations of misconduct.

     Permissible conditions for a PTA are set forth explicitly

in R.C.M. 705(c)(2).   Subsection (D) of this rule specifically

permits:

     (D) A promise to conform the accused’s conduct to
     certain conditions of probation before action by the
     convening authority as well as during any period of
     suspension of the sentence, provided that the
     requirements of R.C.M. 1109 must be complied with
     before an alleged violation of such terms may relieve
     the convening authority of the obligation to fulfill
     the agreement . . . .

(emphasis added).

     Of course, R.C.M. 1109 by its terms addresses the

procedural requirements for “[v]acation of suspension of [a]

sentence,” not withdrawal from a sentence limitation in a PTA.



                                  7
United States v. Hunter, 07-0386/CG


Appellant nonetheless argues that because R.C.M. 1109(b)(1)

provides, in relevant part, that where a condition is violated

“[v]acation shall be based on a violation of the conditions of

suspension which occurs within the period of suspension,” and

because the misconduct in this case occurred before the sentence

was acted on by the convening authority, it did not occur within

the period of suspension.   Accordingly, he asserts that the

convening authority could not lawfully exercise the provision in

the PTA that allowed withdrawal before the convening authority

acted on the sentence.

     This argument is unsupported by ordinary rules of statutory

construction.   First, Appellant’s contention that R.C.M. 1109

prohibits PTAs concerning pretrial misconduct is directly

counter to R.C.M. 705(c)(2)(D), which expressly provides for a

PTA provision covering conduct “before action by the convening

authority.”   We see no reason to read the R.C.M. in such a

fashion as to create internal inconsistencies for the purpose of

nullifying the rules as drafted by the President.   See Loving v.

United States, 517 U.S. 748, 773 (1996) (stating that the

“President, acting in his constitutional office of Commander in

Chief, had undoubted competency to prescribe” R.C.M.

provisions); see also Liteky v. United States, 510 U.S. 540, 552

(1994) (eschewing a statutory interpretation that would have

required a statute to “contradict itself”).   The requirements of


                                 8
United States v. Hunter, 07-0386/CG


R.C.M. 1109 referenced by R.C.M. 705(c)(2)(D) refer to how a

vacation hearing should be carried out, not what event triggers

the hearing.

     Second, while R.C.M. 705(c)(2)(D) does incorporate the

requirements of R.C.M. 1109 by reference, we decline to read

this to mean that a misconduct provision can only justify

withdrawal from sentence limitation portions of a PTA when the

misconduct occurred after the convening authority takes action

under R.C.M. 1107 and during the suspension period.   This

reading is contextually unreasonable, especially when the

provisions can be read to give effect to both.   See Williams v.

Taylor, 529 U.S. 362 (2000) (discussing “the cardinal principle

of statutory construction that courts must give effect, if

possible, to every clause and word of a statute”).

     In our view, while R.C.M. 705(c)(2)(D) could have been

drafted more precisely, the plain import of its reference to

R.C.M. 1109 is to require a convening authority to comply with

the R.C.M. 1109 procedural protections before the benefit of a

PTA can be withdrawn.   And while this Court has not expressly

addressed this issue before, this has been, in fact, how the

provisions have been interpreted together for some time.     United

States v. Smith, 46 M.J. 263, 265 (C.A.A.F. 1997); United States

v. Tester, 59 M.J. 644, 646 (A. Ct. Crim. App. 2003); United

States v. Bulla, 58 M.J. 715, 721 (C.G. Ct. Crim. App. 2003);


                                 9
United States v. Hunter, 07-0386/CG


United States v. Perlman, 44 M.J. 615, 616 (N-M. Ct. Crim. App.

1996); United States v. Kendra, 31 M.J. 846, 848 (N.M.C.M.R.

1990); see also Manual for Courts-Martial, United States,

Analysis of the Rules for Courts-Martial app. 21 at A21-40 (2005

ed.).    Moreover, this is precisely what Appellant’s PTA provided

for in this case.

        The misconduct provision of Appellant’s PTA complied with

R.C.M. 705, and the convening authority did not violate the PTA

by withdrawing from a portion of the sentencing limitation in

light of Appellant’s post-trial misconduct where Appellant

waived the procedural protections to which he was otherwise

entitled under R.C.M. 1109.

                 B.    The Providency of Appellant’s Plea

        The Court of Criminal Appeals held that the military judge

legally erred in failing to explain the pretrial misconduct

provision to Appellant prior to accepting his guilty plea, but,

despite the error, Appellant was not entitled to relief because

he failed to establish the material prejudice to a substantial

right required under Article 59(a), UCMJ.      Hunter, 64 M.J. at

573-74.    We agree.

        “Military law imposes an independent obligation on the

military judge to ensure that the accused understands what he

gives up because of his plea and the accused’s consent to do so

must be ascertained.”      United States v. Resch, 65 M.J. 233, 237


                                   10
United States v. Hunter, 07-0386/CG


(C.A.A.F. 2007).   “The accused must know and understand not only

the agreement’s impact on the charges and specifications which

bear on the plea . . . but also other terms of the agreement,

including consequences of future misconduct or waiver of various

rights.”   United States v. Felder, 59 M.J. 444, 445 (C.A.A.F.

2004); see also United States v. Jones, 23 M.J. 305, 308 (C.M.A.

1987) (discussing this Court’s willingness to strike down PTA

clauses that “violate the institutional safeguards an accused

has under the Uniform Code of Military Justice”).

     Reflecting these concerns, R.C.M. 910(f)(4) requires that

where a plea agreement exists 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.”       This

inquiry is part and parcel of the providence of an accuser’s

plea, and necessary to ensure that an accused is making a fully

informed decision as to whether or not to plead guilty.    United

States v. King, 3 M.J. 458, 458 (C.M.A. 1977).     And we have

noted on more than one occasion that an inquiry that falls short

of these requirements and fails to ensure the accused

understands the terms of the agreement is error.    Felder, 59

M.J. at 445.

     When, as in this case, an error is found, we will reject

the providency of a plea only where the appellant demonstrates a

“material prejudice to a substantial right.”   Id. at 446 (citing


                                11
United States v. Hunter, 07-0386/CG


Article 59(a), UCMJ).   Not every error constitutes a material

prejudice to a substantial right warranting relief under Article

59(a), UCMJ.   Id.

     In this case, the substantial right that must be prejudiced

is the right to make an informed decision to plead guilty.   Cf.

United States v. Ginn, 47 M.J. 236, 247 (C.A.A.F. 1997) (stating

that “the determination whether the error ‘prejudiced’ the

defendant by causing him to plead guilty rather than go to trial

will depend on the likelihood that discovery of the evidence

would have led counsel to change his recommendation as to the

plea” in the context of an ineffective assistance of counsel

case) (emphasis removed); see also Felder, 59 M.J. at 446

(holding that guilty plea need not be set aside where accused is

not materially prejudiced by the failure to be questioned on a

plea agreement provision); United States v. Simpson, 17 C.M.A.

44, 47, 37 C.M.R. 308, 311 (1967) (stating that there was no

prejudice when there was nothing in the record that suggested

either accused would have changed their plea, but for the

error); United States v. Gonzalez, 61 M.J. 633, 636 (C.G. Ct.

Crim. App. 2005) (finding an error exists when there is “a

substantial likelihood that the [a]ppellant would have chosen to

change his pleas to not guilty and demanded a contested trial”).

Where there is “no evidence or representation before this Court

that Appellant misunderstood the terms of his agreement, that


                                12
United States v. Hunter, 07-0386/CG


the operation of any term was frustrated, [or] that Appellant’s

participation in the agreement was anything other than wholly

voluntary” we will not find prejudice.   Felder, 59 M.J. at 446.

     We agree with the Court of Criminal Appeals that Appellant

has not alleged, and the record does not reflect, that Appellant

was not able to make an informed decision whether to plead

guilty because the provision in question was not explained to

him by the military judge.   Hunter, 64 M.J. at 574.    Moreover,

as noted by the Court of Criminal Appeals, Appellant’s attorney

negotiated with the convening authority to waive the R.C.M. 1109

hearing and increase his confinement based on the provision in

question in exchange for an agreement not to proceed on the

allegations of additional misconduct, rather than argue that he

had never heard of, or did not understand, the provision.

     Instead, Appellant argues he was prejudiced because, due to

his subsequent misconduct, he spent sixty additional days in

confinement that would otherwise have been suspended.    This is

not the prejudice we look for in the context of Article 59(a),

UCMJ, where a PTA provision was not explained to an accused by

the military judge.   See Felder, 59 M.J. at 446.

     Under the facts of this case, we find that Appellant’s

substantial rights were not prejudiced by the military judge’s

error in failing to explain the misconduct provision to him

during the course of the providence inquiry.


                                13
United States v. Hunter, 07-0386/CG


                         III.   Decision

     The decision of the United States Coast Guard Court of

Criminal Appeals is affirmed.




                                14
