

   
   
   
   U.S. v. Williams



IN THE CASE OF
UNITED STATES, Appellee
v.
George E. WILLIAMS, Jr., Radioman Second
Class
U.S. Navy, Appellant
 
No. 99-0409
Crim. App. No. 97-0848
 
United States Court of Appeals for
the Armed Forces
Argued December 9, 1999
Decided August 18, 2000
SULLIVAN, J., delivered the opinion
of the Court, in which GIERKE, and EFFRON, JJ., and COX, S.J., joined.
CRAWFORD, C.J., filed an opinion concurring in the result.
Counsel
For Appellant: Lieutenant John D.
Holden, JAGC, USNR (argued) (on brief).
For Appellee: Lieutenant James E.
Grimes, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC,
and Commander Eugene E. Irvin, JAGC, USN, (on brief).
Military Judge: James D. Rockwell
 
 


THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.



Judge SULLIVAN delivered the opinion
of the Court.
On February 26, 1997, appellant was
tried by a general court-martial composed of a military judge sitting alone
at the Naval Trial Service Office Southeast, Corpus Christi Detachment,
Corpus Christi, Texas. In accordance with his pleas, he was found guilty
of 2 specifications of making and uttering bad checks, in violation of
Article 123a, Uniform Code of Military Justice, 10 USC § 923a, and
obtaining services under false pretenses, in violation of Article 134,
UCMJ, 10 USC § 934. He was sentenced to a bad-conduct discharge, confinement
for 10 months, total forfeitures, and reduction to pay grade E-1. On April
14, 1997, the convening authority approved the adjudged sentence but, in
accordance with a pretrial agreement, he suspended adjudged forfeiture
of pay for 12 months with provision for automatic remission and waived
automatic forfeitures for 6 months. The Court of Criminal Appeals affirmed
the findings and sentence as adjudged and approved. United States v.
Williams, 49 MJ 542 (N.M. Ct. Crim. App. 1998).
On June 4, 1999, this Court granted
appellants petition for review on three issues:

I. WHETHER APPELLANT WAS DENIED HIS
SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL DEFENSE
COUNSEL FAILED TO ASCERTAIN AND ADVISE APPELLANT ABOUT THE PRACTICAL CONSEQUENCES
OF A MATERIAL PROVISION OF THE PRETRIAL AGREEMENT, PARAGRAPH 3 OF THE MAXIMUM
SENTENCE APPENDIX.
II. WHETHER APPELLANTS PLEAS TO ALL
CHARGES AND SPECIFICATIONS WERE IMPROVIDENT BECAUSE APPELLANT WAS ERRONEOUSLY
INDUCED INTO PLEADING GUILTY BY AN HONEST AND SUBSTANTIAL MISUNDERSTANDING
AS TO A MATERIAL TERM IN THE PRETRIAL AGREEMENT, PARAGRAPH 3 OF THE MAXIMUM
SENTENCE APPENDIX.
III. WHETHER THE LOWER COURT ERRED
IN REFUSING TO FIND THAT THE MILITARY JUDGE HAD FAILED TO CONDUCT AN ADEQUATE
INQUIRY TO DETERMINE IF APPELLANT UNDERSTOOD THE MEANING AND EFFECT OF
PARAGRAPH 3 OF THE SENTENCE LIMITATION APPENDIX TO THE PRETRIAL AGREEMENT.

In accordance with the Governments concession
on Issue II, we resolve this question in appellants favor and remand this
case for a rehearing. See generally United States v. Bedania,
12 MJ 373, 376 (CMA 1982).
The appellate court below found the
facts pertinent to our review of this case. It stated:

The operative provision of the appellants
pretrial agreement consists of the following language:
 

3. Forfeiture or Fine: All fines
and/or forfeitures will be suspended for a period of twelve (12) months
from the date that the sentence is adjudged, at which time, unless sooner
vacated, the suspended fines and/or forfeitures will be remitted without
further action. This agreement also constitutes a request by the accused
for, and approval by the convening authority of, a six-(6) month waiver
of automatic forfeitures which may be imposed pursuant to Art. 58b of the
UCMJ.
 

Appellate Exhibit III. The military judge
misadvised the appellant that the convening authority was obligated to
suspend forfeitures of pay for 10 months from the date of sentencing. Record
at 71. The military judge then advised the appellant that the convening
authority had agreed to waive for 6 months the automatic forfeitures required
by Article 58b, 10 USC § 858b, "the benefit of that waiver being to
your dependents." Id. The appellant and both counsel indicated their agreement
with the military judges understanding of the effects of the pretrial
agreement. Id.
At the time of the appellants court-martial,
he was on legal hold since the expiration of his active obligated service
2 weeks earlier. Record at 15. Neither the appellant nor his defense
counsel were aware of the Department of Defense Regulation which provides
that servicemembers on legal hold who are later convicted of an offense
under the UCMJ forfeit the right to accrue pay or allowances after the
conviction. See Defense counsels affidavit dated 4 March 1998.
Leave-and-Earning Statements attached to the record of trial via motion
indicate that no pay or allowances were disbursed to the appellant after
the convening authority took action on the sentence.
Nearly 11 months after his general
court-martial the appellant filed with this court an affidavit in which
he made the following averments:
 

1. I entered into a pre-trial agreement
with the convening authority in my general court-martial (Case No. 9700848).
2. The only reason I entered into the
pretrial agreement was because, in exchange for my pleas of guilty, the
convening authority agreed to: 1) suspend all adjudged forfeitures and
fines for a period of 12 months, and 2) to waive all automatic forfeitures
under article 58b, UCMJ for a period of six months.
3. At the time I entered into the pre-trial
agreement, I fully expected that my dependent would receive my full pay
and allowances for six months after the date of the court-martial.
 

Post-trial affidavit of George E. Williams,
Jr., dated 11 January 1998. In a post-trial affidavit dated 4 March 1998,
the appellants trial defense counsel indicated that the pretrial agreement
provision for suspending adjudged and automatic forfeitures was because
the appellant "was concerned that his family would otherwise be without
any source of income." In another post-trial affidavit, dated 17 April
1998, the trial defense counsel indicated that the main concern of the
appellant and his family was the confinement which they wanted to limit.
The defense counsel stated his belief that the appellants assertions "that
forfeitures were all that he was concerned with is patently false and misleading."

United States v. Williams, 49 MJ
at 545.

____ ____ ____
Our starting point on this appeal is
the Governments concession that "because appellant did not receive the
benefit of his bargain, his pleas were not provident." Govts Answer to
Final Brief at 3. It based this concession on the decisions of this Court
in United States v. Mitchell, 50 MJ 79 (1999), and United States
v. Olson, 25 MJ 293 (1987). We accept this concession by the Government.
See United States v. Bedania, supra; see generally
Santobello v. New York, 404 U.S. 257 (1971) (an accused is entitled
to the benefit of the bargain on which his guilty plea is based).
The Government clearly articulated
why the above cases required it to concede this issue. It said:

Based upon this controlling precedent,
the Government is constrained to agree that on the facts of this case,
appellants pleas are improvident. Under Olson, the term in question
herein, suspension and waiver of forfeitures, is material because it was
interjected into the proceedings by the PTA. Id. at 297. Just as
in Olson, all of the parties misunderstood the Governments ability
to comply with this term. Id. This "misunderstanding as to [this
material] term gives appellant the right to rescind the agreement." Id.
Accordingly, because appellant did not receive the benefit of his bargain,
his pleas are improvident, the findings should be set aside, and appellant
should be retried. Mitchell, 50 MJ at 82; Olson, 25 MJ at
297-98.

Govt. Brief at 8 (footnotes omitted).
It further stated:

Even if this term were collateral,
the Government would still be constrained to agree with appellant. As this
Court has noted,
 

When collateral consequences of a
court-martial conviction . . . are relied upon as the basis for contesting
the providence of a guilty plea, the appellant is entitled to succeed only
when the collateral consequences are major and the appellants misunderstanding
of the consequences . . . is induced by the trial judges comments during
the providence inquiry. . . .
 

United States v. Bedania, 12 MJ
373, 376 (CMA 1982). Here, the military judge specifically told appellant
that as a result of the pretrial agreement, the convening authority would
suspend the adjudged forfeitures and that automatic forfeitures would be
waived for the benefit of appellants dependents. (R. 71.) Thus, even if
the provision is collateral, appellant is entitled to succeed.

Govt. Brief at 8 n.1.
This Courts decision in United
States v. Albert, 30 MJ 331 (1990), cert. denied, 498
U.S. 1028 (1991), does not dictate a contrary result. There, this Court
affirmed a guilty plea made pursuant to a pretrial agreement which contained
a provision for suspension of forfeitures which ultimately provided no
practical benefit to that accused. However, the automatic forfeiture provisions
of Article 58b, UCMJ, 10 USC § 858b, were not in effect at that time.
In addition, we relied on United States v. Bedania, supra,
to determine that the unilateral misunderstanding of the accused in that
case had no impact on the validity of the guilty pleas.
In Bedania, we delineated the
test for determining whether a misunderstanding by an accused of a term
in a pretrial agreement could invalidate a guilty plea. We said:

We agree with Santos [4 MJ
610 (NCMR 1977)] that the divorce of administrative-discharge proceedings
from the military justice system does not inevitably require that a guilty
plea be upheld as provident despite the accuseds misapprehension of the
possibility or the likelihood that he will be administra-tively discharged.
However, when collateral consequences of a court-martial conviction-such
as administrative discharge, loss of a license or a security clearance,
removal from a military program, failure to obtain promotion, deportation,
or public derision and humiliation-are relied upon as the basis for contesting
the providence of a guilty plea, the appellant is entitled to succeed
only when the collateral consequences are major and the appellants misunderstanding
of the consequences (a) results foreseeably and almost inexorably
from the language of a pretrial agreement; (b) is induced by the
trial judges comments during the providence inquiry; or (c) is
made readily apparent to the judge, who nonetheless fails to correct that
misunderstanding. In short, chief reliance must be placed on defense
counsel to inform an accused about the collateral consequences of a court-martial
conviction and to ascertain his willingness to accept those consequences.

12 MJ at 376 (emphasis added).
Turning to appellants case, we agree
with the Government that it meets these requirements. See United
States v. Olson, supra at 297. Where, as here, an accused pleads
guilty relying on incorrect advice from his attorney on a key part of the
pretrial agreement (entitlement to pay), and the military judge shares
that misunderstanding and fails to correct it, */
a plea can be held improvident. Ignorance of the law on a material matter
cannot be the prevailing norm in the legal profession or in the court-martial
process. Accordingly, we accept the Governments concession to the vacation
of the instant pleas. See also United States v. Hardcastle,
No. 99-0632, ___ MJ ___ (2000) (opinion of Sullivan, J.).
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is reversed; the findings and sentence
are set aside. The record of trial is returned to the Judge Advocate General
of the Navy. A rehearing may be ordered.
FOOTNOTE:
*/ Appellate Exhibit
V (R. 74) is a service-record-book entry which was expressly called to
the judges attention prior to the conclusion of this court-martial. It
states, "6 Feb 97: Held involuntarily beyond normal expiration of obligated
service awaiting trial by court-martial. Authority MILPERSMAN 1050155."
The charge sheet also shows that he enlisted on February 15, 1991, for
6 years and the date of appellants trial was February 26, 1997. (R. 45-46;
73-74)


CRAWFORD, Chief Judge (concurring in
the result):
I concur with reversing this conviction
based solely on appellate government counsel's concession. Presumably,
the Government prefers to have the findings of guilt set aside and to shoulder
the expense of a rehearing rather than to fashion a remedy to provide appellant
the benefit of his plea bargain. See United States v. Mitchell,
50 MJ 79, 82-83 (1999); United States v. Olson, 25 MJ 293, 299 (CMA
1987). Cf. Santobello v. New York, 404 U.S. 257 (1971). Government
counsel's capitulation despite the Court of Criminal Appeals findings,
a shared belief that United States v. Mitchell, supra, serves
as controlling precedent for this case, and the glaring absence of citation
to more persuasive precedent requires that I write.
Facing a maximum punishment that included,
inter alia, 145 years and 6 months confinement, appellant
negotiated a pretrial agreement with his convening authority. Appellant
agreed to plead guilty to making and uttering 29 checks (the value of which
exceeded $20,000) with intent to defraud, and to obtaining services (of
a value exceeding $1200) under false pretenses. The convening authority
agreed to suspend any adjudged confinement exceeding 12 months, and to
suspend all forfeitures and fines as well as to waive, for 6 months, automatic
forfeitures imposed pursuant to Article 58b, UCMJ, 10 USC § 858b.
Neither the defense counsel, trial counsel, staff judge advocate, nor military
judge knew that servicemembers, such as appellant, who are held beyond
the expiration of their service commitments for trial by court-martial,
and are later convicted and incarcerated, are not entitled to pay. See
United States v. Albert, 30 MJ 331 (CMA 1990), cert. denied,
498 U.S. 1028 (1991); 39 Comp. Gen. 42 (1959).
At trial, appellant pled guilty and
was sentenced to a bad conduct discharge, confinement for 10 months, total
forfeitures, and reduction to E-1. The convening authority approved the
sentence and upheld his end of the bargain by suspending all forfeitures
of pay for 12 months and waiving all automatic forfeitures required by
Article 58b for 6 months. Because he was entitled to no pay, appellant
did not reap the benefit of the pretrial agreement as it related to fiscal
considerations.
Before the Court of Criminal Appeals,
appellant asserted that the only reason he entered into the pretrial
agreement was to secure the financial benefits therein, and ensure his
family members would receive his full pay and allowances for the 6 months
following his court-martial. The Court of Criminal Appeals found otherwise.
49 MJ 542, 547 (1998).
I agree with the majority that the
issue is whether this appellant understandingly, voluntarily, and intelligently
entered into his pretrial agreement. See Brady v. United States,
397 U.S. 742, 747 and n.4 (1970). RCM 705(c)(1)(A). A guilty plea that
is induced by threats, misrepresentations, or false promises will fall.
See United States v. Burnell, 40 MJ 175, 176 (CMA 1994).
A plea bargain that is otherwise voluntarily proposed, but based on a misunderstanding
(that is not substantial) of the maximum sentence that could be adjudged
will stand. See United States v. Mincey, 42 MJ 376, 378 (1995);
United States v. Hemingway, 36 MJ 349 (CMA 1993); United States
v. Poole, 24 MJ 539 (ACMR 1987), aff'd 26 MJ 272 (CMA 1988); United
States v. Hunt, 7 MJ 985 (ACMR 1979), aff'd 10 MJ 222 (CMA 1981). Similarly,
plea bargains that have unforseen collateral consequences will be upheld.
United States v. Albert, supra; United States v. Bedania,
12 MJ 373 (CMA 1982).
In my opinion, this case fits squarely
within the four corners of United States v. Albert, supra,
a unanimous opinion of this Court which has been overlooked by both counsel
and the courts below. The issue in Albert was whether the Government
fully complied with the terms of a pretrial agreement, similar in nature
to the one in the case sub judice. While this appellant has
phased the granted issue differently from that in Albert, the core
question remains identical -- voluntariness of the plea. I can find nothing
in the record that convinces me that the Government induced or tricked
appellant into pleading guilty with a false promise of financial relief.
Further, I share the lower courts view that a misunderstanding of the
potential monetary benefit accompanying this guilty plea did not significantly
contribute to appellant's decision to plead guilty.
Should the Government distinguish Albert
and decide that the financial relief for which appellant bargained was
material to his guilty plea, it still has the option of making appellant
whole in lieu of treating the plea as improvident. See United
States v. Olsen, supra; United States v. Cooke, 11 MJ
257, 261 (CMA 1981)(when accused enters a guilty plea believing that a
pretrial agreement exists, the lack of such agreement does not negate the
pleas voluntariness when the Government grants the relief for which appellant
had bargained). As we found in Olson, our jurisdictional limitations
on adjudicating pay disputes, coupled with the abundant experience and
expertise in interpreting service regulations found in the Courts of Criminal
Appeals, augur well for resolving this matter in the court below. See
Art. 66, UCMJ, 10 USC § 866 (1994); see generally Mitchell,
supra at 83. Inexplicably, the Government has declined to make any
such argument.
In both United States v. McLaughlin,
50 MJ 217 (1999), and United States v. Clark, No. 99-0545, ___ MJ
___ (2000), we acknowledged the Manual for Courts-Martial remedy for impermissible
pretrial-agreement terms - do not enforce them. RCM 705(c)(1)(B). I would
adopt the reverse side of that coin in this and similar cases -- make an
appellant whole by paying him.
Notwithstanding the force of precedent
from this Court, and the decision of the Court of Criminal Appeals below,
the Government has elected to support appellant's position. Accordingly,
I concur, albeit reluctantly, with setting aside the findings and sentence.


Home
Page  |  Opinions
& Digest  |  Daily
Journal  |  Scheduled
Hearings
