              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                              No. ACM S32379
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                        Kyree D. PULLIAM
              Airman Basic (E-1), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 23 March 2017
                          ________________________

Military Judge: Donald R. Eller, Jr.
Approved sentence: Bad-conduct discharge. Sentence adjudged 4 De-
cember 2015 by SpCM convened at Aviano Air Base, Italy.
For Appellant: Captain Annie W. Morgan, USAF; Brian L. Mizer, Es-
quire.
For Appellee: Major J. Ronald Steelman III, USAF; Gerald R. Bruce,
Esquire.
Before MAYBERRY, SPERANZA, and JOHNSON, Appellate Military
Judges.
Judge SPERANZA delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge JOHNSON joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________

SPERANZA, Judge:
    A special court-martial composed of a military judge sitting alone found
Appellant guilty, consistent with his pleas pursuant to a pretrial agreement,
of wrongful use and distribution of marijuana on divers occasions, in violation
                 United States v. Pulliam, No. ACM S32379


of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a.
The military judge sentenced Appellant to a bad-conduct discharge and 100
days of confinement. In accordance with the terms of the pretrial agreement,
the convening authority approved only the bad-conduct discharge.
   Now on appeal, Appellant maintains that he is entitled to sentencing
credit against the approved sentence in accordance with United States v.
Pierce, 27 M.J. 367 (C.M.A. 1989), and as bargained for in his pretrial agree-
ment with the convening authority. We disagree and affirm.

                               I. BACKGROUND
    Appellant used marijuana at least ten times with other Airmen and dis-
tributed marijuana to other Airmen multiple times while stationed in Italy.
His drug use was confirmed by two separate urinalysis tests.

                  II. DISCUSSION—PRETRIAL AGREEMENT
    Appellant received nonjudicial punishment for marijuana use that, as the
parties agreed, overlapped the charged misconduct. Appellant’s nonjudicial
punishment consisted of reduction in rank from E-3 to E-1, forfeiture of a to-
tal of $1,546.00 pay, and 45 days of extra duties. In addition, Appellant’s con-
tinued drug use eventually resulted in him being ordered into pretrial con-
finement, where he remained for 114 days.
    Appellant reached a pretrial agreement with the convening authority
whereby Appellant agreed, inter alia, to plead guilty to wrongful use and dis-
tribution of marijuana, enter into a reasonable stipulation of fact, be tried by
military judge alone, and waive all waivable motions in exchange for the con-
vening authority’s agreement—documented in the agreement’s appendix—to:
       1. Withdraw and dismiss [a specification of wrongful possession
       of marijuana] with prejudice;
       2. Decline to take any additional punitive action for acts arising
       out of the same facts and circumstances as the referred charge
       and specifications;
       3. Approve no confinement;
       4. Direct immediate release of [Appellant] at the conclusion of
       trial and defer any adjudged confinement until approval of the
       sentence by the Convening Authority;
       5. Approve no restriction to specified limits;
       6. Approve no hard labor; and



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                  United States v. Pulliam, No. ACM S32379


       7. Apply any sentencing credit to the approved sentence. (Em-
       phasis in original).
   The stipulation of fact, admitted as a prosecution exhibit, included the fol-
lowing:
       [Appellant’s commander] through nonjudicial punishment,
       found [Appellant] committed misconduct which forms a portion
       of the basis of the charge in this court-martial. For the . . . non-
       judicial punishment, [Appellant] was reduced from E-3 to E-1,
       forfeited $1,546.00 of pay, and performed 45 days extra duty.
       Except for the nonjudicial punishment, [Appellant] would have
       promoted to E-4 . . . .
    The military judge advised Appellant that the stipulation would be used
to determine an appropriate sentence. Appellant agreed to this use.
    The military judge discussed Appellant’s offer to waive all waivable mo-
tions with Appellant and trial defense counsel. During this discussion, trial
defense counsel confirmed that Appellant would seek sentencing credit pur-
suant to Pierce for the prior nonjudicial punishment.
    During presentencing and after the parties agreed that Appellant was en-
titled to 114 days of pretrial confinement credit, the military judge addressed
the Defense’s request for additional sentencing credit for the imposed nonju-
dicial punishment. Accordingly, trial defense counsel argued, “we would like
day-for-day, dollar-for-dollar credit. We would . . . like the opportunity to re-
address this after the adjudged sentence is announced, and then look at that
in compliance with [the] R.C.M. . . . just to see what’s equal to what.” The
military judge explained his decision to determine any credit prior to sentenc-
ing:
       Well, I’d rather take it up in advance, because what I’m not go-
       ing to do is, I’m not going to announce a sentence and then tell
       you how I got there, because if I’m considering the Pierce cred-
       it, I’m going to make that determination now, and say this is
       what the accused would be entitled to. Because it’s a legal de-
       termination. My decision on what the accused should be sen-
       tenced for is based on what he’s been found guilty of, based on
       all the facts and circumstances. So I’m going to do what I think
       is right. There’s two things that are going on here that I just
       need you to understand.
       ....
       A legal determination of Pierce credit is one factor. Secondly,
       because it’s in the stipulation of fact, I am allowed, and I think


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                 United States v. Pulliam, No. ACM S32379


      expected, to consider these circumstances when determining an
      appropriate sentence. So that falls into my deliberative process
      . . . And so, I would rather, in the world of transparency, I
      would rather deal with the Pierce credit, what you’re entitled
      to, now and then, once I announce the sentence, then we can
      subtract. I want to put that cart in front of the horse, unless
      there’s a particular objection to it. I would just as soon deal
      with that because I don’t want to say you’re getting two bites at
      the apple, but you are.
      So you’re going to get a legal determination on the Pierce cred-
      it, and then further, I’m allowed to consider everything. You
      know, part of the stipulation of fact, which is -- which I’m al-
      lowed to consider, in fact, it says I’m supposed to look at it in
      determining an appropriate sentence. One, I’m aware that [Ap-
      pellant] has been in -- his liberties have been restricted . . . . All
      right, I’ll take that into account when I consider what else
      needs to happen from this day forward. And I also know that
      . . . he’s been deprived of rank and pay for matters, apparently,
      related to the offenses that are on the charge sheet, and we’re
      going to talk a little bit more about the charge sheet and how
      far this Article 15 does or doesn’t extend to application of that,
      because I want to make that legal determination in advance so
      I know what I should be thinking about when I go back to de-
      liberate.
   The trial counsel then conceded Appellant was due sentencing credit for
the nonjudicial punishment. Prior to sentencing deliberations, the military
judge concluded:
      I had the opportunity to go back and look at the nonjudicial
      punishment and the charge sheet; I considered the stipulation
      of fact and the Care inquiry. There appears to be some overlap
      with regard to the misconduct. The accused is getting 30 days
      Pierce credit against any term of confinement by virtue of the
      hard labor without confinement, which was adjudged. The
      court will award an additional 15 days credit to any adjudged
      confinement as a result of the reduction in [sic] forfeitures.
   After announcing the sentence, the military judge explained:
      In the course of its deliberations, the court considered the Arti-
      cle 15 imposed by [Appellant’s] commander, which is [a] Prose-
      cution Exhibit[.] . . . As further noted, that in light of the forfei-
      tures, and the reduction which overlapped with the accused’s


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                 United States v. Pulliam, No. ACM S32379


       misconduct for which he has been found guilty of, the court
       deems it appropriate to award the accused an additional 15
       days pretrial confinement credit. In total, the accused will be
       credited with 159 days of pretrial confinement.
       I further note that, had this Article 15 not been imposed, and
       were the accused an E-3 or E-4 as he came into this courtroom,
       the court’s sentence would have included reduction to the grade
       of E-1.
    Trial counsel provided the pretrial agreement appendix—the quantum
portion—to the military judge. The military judge discussed the seven item-
ized terms within the appendix. Upon reaching the term in which the conven-
ing authority agreed to apply any sentencing credit to the approved sentence,
the military judge asked, “What does paragraph 7 mean?” Trial counsel at-
tempted to explain the provision:
       That was meant as a was meant as a -- just to ensure that any
       awarded Pierce credit, Allen credit was applied to whatever is
       left over from the approved credit. [T]he ultimate goal was to
       ensure no confinement, restrictions -- yeah, restrictions to spec-
       ified limits, or approved hard labor without confinement, would
       absolutely not be approved at any point.
    The military judge noted that the appendix’s other provisions accom-
plished that goal, and again asked, “Paragraph 7, apply any sentencing credit
to the approved sentence, means what?” Trial counsel responded “. . . given
the sentence, and the [specifications], and circumstances, I think it’s super-
fluous, Your Honor . . . I think that was just a stop-gap. I’d invite defense
counsel’s interpretation of that, but that’s my understanding.”
   The military judge asked the Defense what they thought the provision
meant. Trial defense counsel stated, “Sir, defense agrees with trial counsel,
and it was included kind of as a safety net.” Trial defense counsel explained
that such language was identified as a “best practice” in an unidentified case
from 2009. The military judge found such an assertion “fascinating.” Never-
theless, trial defense counsel maintained, “for all intents and purposes, de-
fense agrees with trial counsel as to the purpose [of the provision].” The mili-
tary judge inquired further of trial defense counsel:
       MJ: So my question for you is this . . . based on the sentence
       adjudged, the convening authority can only approve the bad
       conduct discharge?”
       DC: So, to answer the court’s question, yes, the convening au-
       thority in this case, we would expect to only approve the bad
       conduct discharge.

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                United States v. Pulliam, No. ACM S32379


      MJ: And per the agreement, he could approve the bad conduct
      discharge. There’s no limit on his ability to do that. Is that --
      DC: Correct.
      MJ: -- your interpretation? It’s not a trick question, it’s just
      when there’s wording like this, my mind races to the myriad
      options available, and I want to make sure your understanding,
      their understanding, and most importantly, [Appellant’s] un-
      derstanding all mesh.
      DC: Yes, sir. No, and I’m not taking it as a trick question, I’m
      thinking through it in my mind as well. Just to entertain the
      court through kind of a conversation aspect, but yes, the con-
      vening authority can, and has the ability to approve the bad
      conduct discharge.
   The military judge next sought Appellant’s understanding of the term in
the following exchange with Appellant:
      MJ: Now paragraph 3 says he’s not going to approve any con-
      finement, even though I adjudged it, and regardless of the cred-
      it, you know, I’m obligated to do what I think is right under the
      circumstances, but he’s not going to approve any confinement,
      and he is directing your immediate release, after this trial. He
      would approve no restrictions to limits. Well, that wasn’t im-
      posed, so you’re fine there. He would not approve any hard la-
      bor. That wasn’t adjudged, so you’re fine there. And as to para-
      graph 7, apparently it’s, given the circumstances, I guess it was
      sort of a catchall to make sure that you didn’t have any more
      time in jail under any circumstances, but really, from the
      court’s perspective, it’s a paragraph with no import or impact,
      at least as far as they understand, and my question, is that
      your understanding as well?
      ACC: Yes, sir.
    The military judge confirmed the parties’ understanding of the term one
last time:
       MJ: All right. As such, based on my complete interpretation of
      this, what the convening authority can do is he can decide to
      approve or disapprove the bad conduct discharge; those are his
      options in this case. Is that your understanding as well?
      ACC: Yes, sir.
      MJ: Very good.


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                   United States v. Pulliam, No. ACM S32379


       ATC: Yes, Your Honor.
       DC: Yes, Your Honor.
    In the staff judge advocate’s recommendation (SJAR), the staff judge ad-
vocate advised the convening authority that Appellant “received 159 days of
pretrial confinement credit” and recommended the convening authority “only
approve so much of the sentence as calls for a bad conduct discharge.” In his
petition for clemency, Appellant claimed that his sentence was “excessive for
the nature of the offense [sic] and does not fully consider [his] rehabilitative
potential and future aspirations to succeed in and contribute to society.” Ac-
cordingly, Appellant requested the convening authority “exercise [his] sole
discretion as Special Court-Martial Convening Authority under [Rule for
Courts-Martial (R.C.M.)] 1107 and disapprove the adjudged Bad Conduct
Discharge.” 1 Appellant did not seek to have additional sentencing credit ap-
plied to his punitive discharge in accordance with any term of his pretrial
agreement. In the addendum to the SJAR, the acting staff judge advocate di-
rected the convening authority to consider the matters submitted by Appel-
lant and once again recommended approval of only the bad-conduct dis-
charge.
    The interpretation of a pretrial agreement is a question of law that we re-
view de novo. United States v. Acevedo, 50 M.J. 169, 172 (C.A.A.F. 1999). A
pretrial agreement is reached through a bargaining process similar to that
used in forming commercial contracts. Id. Accordingly, “we look to the basic
principles of contract law when interpreting pretrial agreements.” Id. Howev-
er, these contract principles are outweighed by the constitutional due process
protections afforded to an accused. Id.
    We begin our analysis of a pretrial agreement by looking to the language
of the agreement itself. Id. When the pretrial agreement’s terms are unam-
biguous, the parties’ intent is discerned from the four corners of the contract.
Id. However, “[w]hen the contract is ambiguous on its face because a provi-



1 Appellant committed his offenses after 24 June 2014. Therefore, the convening au-
thority could only disapprove, commute, or suspend in whole, or in part, Appellant’s
bad-conduct discharge as provided in a pretrial agreement. 10 U.S.C. § 860(c), as
amended by the National Defense Authorization Act for Fiscal Year 2014, Pub. L. No.
113-66, § 1702, 127 Stat. 672 (26 December 2013). Otherwise, the convening authori-
ty retained no authority to act on Appellant’s adjudged bad-conduct discharge. See id.
We find that Appellant’s pretrial agreement did not permit the convening authority
to disapprove, commute, or suspend in whole, or in part, Appellant’s bad-conduct dis-
charge.




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                  United States v. Pulliam, No. ACM S32379


sion is open to more than one interpretation, extrinsic evidence is admissible
to determine the meaning of the ambiguous term.” Id.
    “In determining the parties’ understanding on ambiguous pretrial agree-
ment terms, [we] give the greatest weight to the parties’ stated understand-
ing at trial, for it is at the pretrial and trial stages where pretrial agreement
disagreements can better be resolved.” United States v. Craven, 69 M.J. 513,
515 (A.F. Ct. Crim. App. 2010). We also consider the parties’ understanding
of the pretrial agreement as reflected in the matters submitted post-trial to
the convening authority by Appellant and the staff judge advocate under
R.C.M. 1105 and 1106, “for this stage provides the next best venue for resolv-
ing pretrial agreement disputes.” Id. We give the least amount of weight to a
party’s understanding of a pretrial agreement when it is articulated for the
first time on appeal. Id.
   Like the military judge, we find the terms of Appellant’s pretrial agree-
ment, when read together and on their face, “fascinating.” The ambiguity
created by the parties’ creative writing can hardly be endorsed as a “best
practice.” While each term, on its own, may be clear, the parties’ overall in-
tent is indiscernible from the four corners of the agreement.
    Consequently, the military judge quickly reached the same conclusion and
conducted an appropriately thorough inquiry to determine the parties’ under-
standing of the meaning and effect of paragraph 7’s provision to apply any
sentencing credit to the approved sentence. The parties, including Appellant,
agreed that this provision was intended as “stop-gap,” “safety net,” or “catch-
all” to ensure Appellant received no confinement, restriction, or hard labor.
The parties’ interpretations of the pretrial agreement “all meshed” at trial.
Trial defense counsel affirmatively stated that “we would expect [the conven-
ing authority] to only approve the bad conduct discharge.” (Emphasis added).
Pertinently, trial defense counsel agreed with the military judge that
“[t]here’s no limit on [the convening authority’s] ability to [approve the bad-
conduct discharge].” (Emphasis added). Likewise, Appellant agreed with the
military judge that, “given the circumstances,” the provision was a “para-
graph with no import or impact.” (Emphasis added). The parties clearly stat-
ed their understanding of this term at trial and this interpretation given the
greatest deference. Accordingly, we find that the pretrial agreement permit-
ted the convening authority to approve Appellant’s bad-conduct discharge
without limitation and does not require the convening authority to attempt to
apply any sentencing credit to the discharge. This interpretation is also con-
sistent with Appellant’s post-trial submissions in which Appellant did not
demand the terms of the pretrial agreement be enforced or that any sentenc-
ing credit be applied to his punitive discharge.



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                 United States v. Pulliam, No. ACM S32379


    Yet, Appellant articulates a different interpretation at the eleventh hour
on appeal. Craven, 69 M.J. at 514. He now argues that he bargained for and
is due credit against the approved bad-conduct discharge. We find Appellant
waived such a claim. Even if Appellant’s expressed interpretation of the term
at trial does not constitute waiver, his current understanding—stated for the
first time on appeal—is given the least amount of weight. The fact that Ap-
pellant waited until his appeal to raise this as an issue belies his assertion
that he believed his pretrial agreement required the sentencing credit he ad-
judicated and was awarded at trial be applied to the approved bad-conduct
discharge. See id. Appellant’s actions both at trial and upon submission of his
clemency matters convince us that Appellant and the convening authority
reached a mutual understanding that the bad-conduct discharge could be im-
posed. Id. Put simply, Appellant received the benefit of his pretrial agree-
ment and was not punished twice for any misconduct. See Pierce, 27 M.J. at
370.

                              III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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