

   
   
   
   U.S. v. Acevedo



UNITED STATES, Appellee
v.
Orison S. ACEVEDO, Fireman
U.S. Coast Guard, Appellant
 
 
No. 97-1164
Crim. App. No. 1066
 
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued October 5, 1998
Decided April 21, 1999


COX, C.J., delivered the opinion of the
Court, in which SULLIVAN, CRAWFORD, and GIERKE, JJ., joined. EFFRON, J.,
filed a concurring opinion.


Counsel
For Appellant: Lieutenant Sandra K. Selman,
USCGR (argued); Lieutenant Richard R. Beyer, USCGR (on brief).
For Appellee: Lieutenant Susan Polizzotto,
USCGR (argued); Lieutenant William G. Rospars, USCG (on brief).
Amicus Curiae Urging Reversal: Lieutenant
Commander R. C. Klant, JAGC, USN.
Military Judge: Lane I. McClelland
 
 


This opinion is subject
to editorial correction before publication.
 
 

Chief Judge COX delivered the opinion of the
Court.

I
Two issues for review are presented in appellant
Acevedos case. The first one questions the meaning and effect of a provision
of appellants pretrial agreement pertaining to punitive discharge. In
essence, the agreement indicated that, if a dishonorable discharge was
adjudged, the convening authority would have to suspend it. The agreement
did not specify that a bad-conduct discharge, if adjudged, would be similarly
suspended, and indeed a bad-conduct discharge was adjudged. Accordingly,
the convening authority approved the discharge as adjudged. Appellant now
contends that the bad-conduct discharge should have been suspended, just
as a dishonorable discharge would have been.
The other issue questions what the holding
of the Court of Criminal Appeals on the first issue was. See 46
MJ 830 (1997). In sum, all members (four) of that court, sitting en banc,
agreed that the construction of the pretrial agreement provision was a
question of law. Two members of the court held that the provision was valid
and enforceable, and they voted to affirm appellants sentence to a bad-conduct
discharge. Id. at 835. The remaining two members, concurring
in part and dissenting in part, concluded that the unsuspended bad-conduct
discharge was not enforceable. They would have ordered it suspended, just
as a dishonorable discharge would have been. Id. at 838.
Given our precedents, however, even the dissenters
acknowledged that an evenly split decision on a matter of law resulted
in an affirmance of the decision below. Accordingly, the dissenters "agree[d]
that until further clarification of this subject is provided by the Court
of Appeals for the Armed Forces, the sentences in both cases [1/]
must be affirmed, despite the evenly divided vote on the action to be taken
with respect to the punitive discharges." Id. at 839; see
United States v. Ohrt, 28 MJ 301 (CMA 1989).
Upon appellants petition, we granted review
of both the underlying pretrial agreement issue and the issue concerning
the effect of the evenly divided appellate court decision. 49
MJ 40 (1998). We now hold that the provision of the pretrial
agreement was valid and that the convening authority did not err in approving
the unsuspended bad-conduct discharge. Further, we adhere to the general
rule that an evenly divided vote on a matter of law in an appellate tribunal
sustains the holding of the court below.

II
Appellant was tried by a military judge sitting
alone as a general court-martial in Seattle, Washington. Pursuant to his
pleas, he was convicted of attempting to pawn and receive cash for Coast
Guard equipment and supplies without proper authority; conspiracy to commit
larceny of military clothing for later unauthorized sale; wrongful disposition
of military property (4 specifications); larceny of military property (4
specifications); and soliciting another to steal military property (2 specifications).
2/
In all, appellant stole over $6,000 worth of Coast Guard equipment, including
tools, cold weather parkas, and wet suits.
Appellants pleas of guilty were pursuant to
a pretrial agreement, as indicated. The military judge conducted an appropriate
inquiry into the providence of the pleas, ensuring there was a factual
basis for them. See United States v. Care, 18 USCMA 535,
40 CMR 247 (1969). The judge also ensured on the record that appellant
understood the meaning and effect of his pretrial agreement, including
its sentencing provisions. The agreement recited "that this offer to plead
guilty originated with me [appellant] and my counsel."
That portion of the agreement styled "Maximum
Sentence Appendix" set forth the following with regard to punitive discharge:



A punitive discharge may be approved as adjudged.
If adjudged and approved, a dishonorable discharge will be suspended for
a period of 12 months from the date of court-martial at which time, unless
sooner vacated, the dishonorable discharge will be remitted without further
action.



Without foreknowledge of the limitations set forth
in the Maximum Sentence Appendix, the military judge sentenced appellant
to confinement for 30 months, total forfeitures, reduction to E-1, and
a bad-conduct discharge. The convening authority approved the sentence,
but in accordance with another portion of the pretrial agreement, he suspended
confinement in excess of 15 months for 12 months.
On appeal to the Court of Criminal Appeals,
appellant raised two issues unrelated to his pretrial agreement. That court,
however, sua sponte questioned the effect of appellants
pretrial agreement, and it invited him to submit a supplemental
brief on the issue. See 46 MJ at 831. In response, appellant asserted
on brief that the bad-conduct discharge had to be suspended according to
the implication of the agreement, and that the military judge did not adequately
inquire into appellants understanding of the meaning of the sentence limitations
in the agreement. Id. at 833.
Judge Weston, joined by Judge Fearnow, opined
that, although appellants agreement was not a "model[] of clarity,
it seems abundantly clear from the record . . . that all of the parties
were of the understanding that a bad-conduct discharge could be approved
and executed, if adjudged." Id. at 833. Focusing on the actions
of appellant and his counsel, they concluded that



[t]o require that the adjudged bad-conduct
discharges in these cases be suspended based on an inference raised by
the limit on a dishonorable discharge would constitute an unjust windfall
to these appellants. We see no reason to retroactively revise the bargains
to which these parties freely and voluntarily agreed. See U.S.
v. Rivera, 46 MJ 52, 55 (1997).



46 MJ at 834.
Chief Judge Baum, joined by Judge OHara, concurred
in part but dissented with respect to the interpretation of the pretrial
agreement. The essence of their view was, since the convening authority
agreed to suspend any dishonorable discharge, "that constituted the ceiling
for punitive discharges, above which the convening authority could not
go." Id. at 836. The dissenters reasoned that



an unsuspended punishment is necessarily
more severe because, absent legal error or mitigating action by higher
authority, it is certain to be executed and the accused will suffer its
full impact. With a suspended sentence, that will not happen, if the accused
adheres to the terms of probation. In that event, the accused will avoid
the suspended punishment entirely.



Id. Accordingly, the dissenters would have
ordered that the bad-conduct discharge be suspended. Id. at
838.

III
The interpretation of a pretrial agreement
is a question of law, which is reviewed under a de novo standard. 
See United States v. Van Thournout, 100 F.3d 590, 594 (8th
Cir. 1996); United States v. Coleman, 895 F.2d 501, 505 (8th Cir.
1990).
A pretrial agreement is created through the
process of bargaining, similar to that used in creating any commercial
contract. As a result, we look to the basic principles of contract law
when interpreting pretrial agreements.  See Cooper v. United
States, 594 F.2d 12, 16 (4th Cir. 1979)("To the extent . . . that there
has evolved any general body of plea bargain law, it is heavily freighted
with . . . contract law analogies."); cf. United States v. Koopman,
20 MJ 106, 110 (CMA 1985)("Just as in a commercial contract, certain terms
may be implied in an agreement between the prosecution and the defense
as to the disposition of criminal charges."). 3/
When interpreting pretrial agreements, however,
contract principles are outweighed by the Constitutions Due Process Clause
protections for an accused. Id., citing Virgin Islands v. Scotland,
614 F.2d 360, 364 (3d Cir. 1980); United States v. Kazena, 11 MJ
28, 34 (CMA 1981)(Everett, C.J., concurring in the result).

IV
We begin any analysis of a pretrial agreement
by looking first to the language of the agreement itself. When the terms
of a contract are unambiguous, the intent of the parties is discerned from
the four corners of the contract. See United States v. Liranzo,
944 F.2d 73, 77 (2d Cir. 1991). When the contract is ambiguous on its face
because a provision is open to more than one interpretation, extrinsic
evidence is admissible to determine the meaning of the ambiguous term.
See United States v. Ingram, 979 F.2d 1179, 1184 (7th Cir.
1992), cert. denied, 507 U.S. 997 (1993).
The plain language of appellants pretrial
agreement does not prohibit the approval of an unsuspended bad-conduct
discharge. The agreement first states that "a" punitive discharge may be
approved as adjudged. RCM 1003(b)(9), Manual for Courts-Martial, United
States (1995 ed.), sets out two types of punitive discharge for enlisted
personnel: one is a bad-conduct discharge and the other is a dishonorable
discharge. Either may be adjudged by a general court-martial. Id.
The second sentence of the agreement provides
that "if" a dishonorable discharge is adjudged, then a certain
set of events will take place. This is a condition, not a limitation. If
appellant had bargained for the suspension of a bad-conduct discharge as
well, then logically he would have created an "if" clause for the bad-conduct
discharge. The fact that the agreement does not specifically mention a
bad-conduct discharge suggests that no condition applied to a bad-conduct
discharge.

V
Looking to the actions of the participants
at trial, we find little support for appellants claim that the agreement
was ambiguous or other than as he understood it. To the contrary, the record
shows that appellant understood the agreement and that he knowingly and
intelligently pleaded guilty in accordance with it. Cf. Rivera,
46 MJ at 55.
Prior to accepting appellants pleas, the military
judge thoroughly explained appellants rights to him, along with the characteristics
of his guilty pleas, thus fulfilling her affirmative obligations under
United States v. Green, 1 MJ 453 (CMA 1976), and United States
v. King, 3 MJ 458 (CMA 1977). The judge ensured on the record that
appellant had entered into the agreement freely and voluntarily. She also
elicited from appellant an acknowledgment that he had had enough
time with his defense counsel to discuss the pretrial agreement, and that
he had read and understood each provision of the agreement, including the
sentence limitations, before he signed it. 4/
Moreover, it is obvious that the judge recognized
the potential for misinterpretation because, after announcing sentence
(when, for the first time, she saw the Maximum Sentence Appendix), she
immediately directed the following question about the punitive discharge
provision to counsel:



MJ: Okay, I do notice that its-it talks
about suspending a dishonorable discharge but theres nothing about doing
anything to a bad-conduct discharge so that is not suspended. Right?
TC: That is correct, Your Honor.
DC: Yes, Your Honor.



Further, after announcing sentencing and reviewing
the pretrial agreement, the military judge personally advised appellant
of his appellate rights. Again, appellant failed to assert that he had
not anticipated the possibility of receiving an unsuspended bad-conduct
discharge.
If an unsuspended bad-conduct discharge did
not comport with appellants understanding of his pretrial agreement, defense
counsel had several options. First, he was under a continuing duty to reveal
in open court any discrepancy between the defense understanding of the
potential sentence and that adjudged by the court. See United
States v. Passini, 10 MJ 108, 109 (CMA 1980); United States v. Crowley,
3 MJ 988 (ACMR 1977), revd, 4 MJ 170 (CMA 1977), pet. for recon.
granted, 4 MJ 272 (CMA 1978), affd, 7 MJ 336 (CMA 1979).
Second, neither appellant nor defense counsel
ever asserted, in either the request for clemency filed on appellants
behalf pursuant to RCM 1105 or in response to the staff judge advocates
posttrial recommendation under RCM 1106, that receiving an unsuspended
bad-conduct discharge did not comport with their understanding of the agreement.
5/
Third, Art. 38(c), UCMJ, 10 USC 838(c), provides:



In any court-martial proceeding resulting
in a conviction, the defense counsel--
(1) may forward for attachment to the record
of proceedings a brief of such matters as he determines should be considered
in behalf of the accused on review (including any objection to the contents
of the record which he considers appropriate) . . . .



Counsel did none of these things; and we have
no reason to assume he acted inappropriately, especially when appellant
himself consistently expressed on the record that he understood the agreement
the defense itself had proposed, and that he had had adequate time to consult
with counsel about it before entering into the agreement.
We agree with Judges Weston and Fearnow that
it appears all parties had the same understanding, i.e., that an unsuspended
bad-conduct discharge was envisioned as a possible approved and executed
punishment. We also find it significant that it was the Court of Criminal
Appeals, and not appellant, that initiated the appellate issue concerning
the unsuspended discharge.

VI
We reject, therefore, Chief Judge Baums premise
that the pretrial agreement implied that a suspended dishonorable discharge
was the most severe form of discharge that could be approved. If Chief
Judge Baum is correct in arguing that an unsuspended bad-conduct discharge
is more severe than a suspended dishonorable discharge, then it would appear
that the agreement established that an unsuspended bad-conduct discharge
was the most severe form of discharge that could be approved.
It is, in any event, impossible to know which
of the two forms of discharge is more severe--until after the period of
suspension is completed. Suffice it to say, since both the suspended dishonorable
discharge and the unsuspended bad-conduct discharge were approvable punishments
under the terms of the agreement, neither discharge trumped the other.
Although we acknowledge that the terms of the agreement, as proposed by
the defense, appear to create something of a crapshoot with respect to
discharge, ours is not to second-guess the parties in this regard, provided
the punishments proposed are lawful.

VII
The second granted issue pertains to the effect
of the vote below. There is no question but that the issue which divided
the court below was a question of law, or that the
scope of our jurisdiction permits us to review questions of law de novo.
Art. 67(c), UCMJ, 10 USC § 867(c). Our grant of review of appellants
petition thus would appear to render his complaint moot.
Appellants argument, however, is in effect
a "jurisdictional" one, based on that portion of the language of Article
66(c), UCMJ, 10 USC § 866(c), which provides:



It [the Court of Criminal Appeals] may affirm
only such findings of guilty and the sentence or such part or amount of
the sentence, as it finds correct in law and fact and determines, on the
basis of the entire record, should be approved.



From this language, appellant reasons, as a matter
of semantics, that in order for the Court of Criminal Appeals to "find"
a given finding or sentence to be "correct in law and fact," or to "determine"
that a finding or sentence "should be approved," at least a simple majority
is required.
If, as appellant argues, a tie vote on a matter
of law results in a failure of the intermediate appellate court to affirm
a particular finding or sentence, then the finding or sentence would be
deemed disapproved and the matter at an end, unless and until the Judge
Advocate General of the service 6/
sent the case to us. Art. 67(a)(2).
If, on the other hand, a tie vote on a question
of law operates as a "find[ing]" of "correct[ness] in law and fact" and
a "determin[ation]" that a finding or sentence "should be approved," then
either the appellant or the Judge Advocate General could bring the correctness
of that decision to us. Art. 67(a)(2) and (3).
Accordingly, the remedy proposed is that we
declare the lower courts opinion herein to constitute a disapproval of
the sentence, and that we await the decision of the General Counsel of
the Department of Transportation whether to certify the matter to us. On
grounds of judicial economy alone, we decline to adopt this remedy.
Cases decided by evenly divided Courts of Criminal
Appeals are indeed infrequent, if not rare. 7/
However, even when a Court of Criminal Appeals is comprised of an odd number
of judges, the possibility of even, en banc splits exists, due to judicial
vacancies, recusals, illnesses, and other types of absences.
In Ohrt, we clarified our adoption of
the "general rule regarding appellate practice," i.e., that "an evenly
divided vote result[s] in affirmance of a lower court decision." 28 MJ
at 302, quoting United States v. Peurifoy, 22 USCMA 549, 550 n.4,
48 CMR 34, 35 n.4 (1973)(dicta), overruled on other grounds by United
States v. Kozak, 12 MJ 389, 393-94 (CMA 1982). We reached this conclusion
though fully cognizant of a then-recent Coast Guard Court of Military Review
opinion to the contrary (United States v. Beckermann, 25 MJ 870
(CGCMR 1988), affd on other grounds, 27 MJ 334 (CMA 1989)),
which advocated the identical argument here advanced by appellant.
Appellant suggests that, because two of the
four judges joined in a dissenting opinion with respect to the sentence,
Rule 4 of the rules governing the Courts of Criminal Appeals should be
interpreted as precluding affirmance by an equally divided court. The
dissenting judges in the court below, however, recognized that our decision
in Ohrt rejected such an interpretation, and they expressly stated
that the sentence in the present case "must be affirmed," despite their
dissenting views. 46 MJ at 839. In Ohrt, we declined to interpret
the predecessor of the current Rule 4, which used virtually identical language,
as precluding affirmance by an equally divided court.
In 1996, the Judge Advocates General promulgated
a complete revision of the rules governing the Courts of Criminal Appeals,
but made no change to the applicable provisions in Rule 4 to preclude affirmance
by an equally divided court. In the absence of a change in the rule, we
decline to revisit our decision in Ohrt.

VIII
The decision of the United States Coast
Guard Court of Criminal Appeals is affirmed.
FOOTNOTE:
1/ The Court of Criminal
Appeals consolidated appellants case with that of a co-actor, Machinery
Technician Third Class Gilbert.
2/ Violations
of Articles 80, 81, 108, 121, and 134, Uniform Code of Military Justice,
10 USC §§ 880, 881, 908, 921, and 934, respectively.
3/ Similarly,
questions of contract interpretation are generally considered questions
of law subject to de novo review. Golden v. Kelsey-Hayes Company,
73 F.3d 648, 653 (6th Cir.), cert. denied, 519
U.S. 807 (1996).
4/ In
the pretrial agreement, appellant also attested that "my counsel has fully
advised me of the meaning and effect of my guilty pleas" and that "I fully
understand and comprehend the meaning thereof and all of their attendant
effects and consequences."
5/ The
staff judge advocate, in his posttrial recommendation, had recommended
to the convening authority that he approve appellants bad-conduct
discharge.
6/ The
General Counsel of the Department of Transportation is the Judge Advocate
General for the Coast Guard. Art. 1(1), UCMJ, 10 USC § 801(1).
7/ Article
66(a), UCMJ, 10 USC § 866(a), empowers the Judge Advocate General
of each service to appoint judges of the Courts of Criminal Appeals. See
Edmond v. United States, 520 U.S. 651 (1997). It is unfortunate
that a Court of Criminal Appeals has been left constituted with an even
number of judges, increasing the chances that split decisions will occur.
 
 
EFFRON, Judge (concurring):
I write separately to note that, in another
context, an unsuspended bad-conduct discharge might be viewed as harsher
than a suspended dishonorable discharge for purposes of enforcing a pretrial
agreement. In the context of the present case, however, such an evaluation
is not pertinent.
Unlike the usual pretrial agreement that sets
forth a comprehensive cap on the maximum sentence that may be approved
by the convening authority, the agreement in the present case was of a
different nature. The plain language of the agreement addressed the action
that the convening authority would take in the event that the sentence
adjudged by the court-martial included a dishonorable discharge. Under
the agreement, the convening authority would suspend the dishonorable discharge.
As noted in the majority opinion, the particular circumstances of the case,
including the colloquy in the record of trial, support the conclusion that
the parties did not envision this provision as a cap on the type of discharge
that could be adjudged or approved.
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