

   
   
   
   U.S. v. Mitchell



UNITED STATES, Appellee
v.
Edward L. MITCHELL, Master Sergeant
U.S. Air Force, Appellant
 
 
No. 96-1198
Crim. App. No. 31421
 
 
United States Court of Appeals for the Armed
Forces
Argued December 16, 1997
Decided March 26, 1999
 
 
Counsel
For Appellant: Robert A. Parks (argued);
Captain Harold M. Vaught (on brief); Captain Marge A. Overly.
For Appellee: Colonel Brenda J. Hollis
(argued); Lieutenant Colonel Michael J. Breslin and Major Bryan
T. Walker.
Military Judge: Wade B. Morrison
 
 


This opinion is subject
to editorial correction before final publication.


PER CURIAM:
A general court-martial composed of officer
and enlisted members convicted appellant, pursuant to his pleas, of committing
indecent acts upon a child under the age of 16 years, in violation of Article
134, Uniform Code of Military Justice, 10 USC § 934. The court sentenced
him to confinement for 5 years, forfeiture of $500.00 pay per month for
5 years, and reduction to E-4. The convening authority approved only so
much of the sentence that extended to confinement for 4 years and reduction
to the grade of E-4. The Court of Criminal Appeals affirmed the findings
and the sentence as approved by the convening authority.
On appellants petition to this Court, we granted
review of the following issue:



WHETHER APPELLANT'S PLEAS OF GUILTY WERE
IMPROVIDENT BECAUSE OF A SUBSTANTIAL MISUNDERSTANDING OF THE EFFECTS OF
HIS PRETRIAL AGREEMENT.



For the reasons stated below, we remand this case
to the Court of Criminal Appeals for further proceedings.

I
Appellant enlisted in the Air Force on July
31, 1974. His last reenlistment was in September 1988, for a period
of 6 years. In April 1994, appellant signed a 19-month extension of his
enlistment, to be effective on September 19, 1994.
On July 12, 1994, almost 20 years after his
original enlistment, appellant committed the offenses that were the subject
of this court-martial. When confronted by the victims father, appellant
responded that he would not call the child a liar and acknowledged, "I
know that I need help." Thereafter, appellant endeavored to expedite the
process of his court-martial and to address the needs of his family.
As part of that process, appellant entered
into a pretrial agreement that reflected his concern about the financial
circumstances of his family. Appellant agreed to plead guilty to one specification
of committing indecent acts, and the convening authority agreed to drop
a similar specification. The agreement did not limit the period of confinement,
if adjudged; nor did it protect appellants anticipated military retirement
income by precluding a punitive discharge. The only limitation on the sentence
was an agreement by the convening authority to suspend any adjudged forfeiture
of pay and allowances, to the extent that such forfeiture would
result in appellants receiving less than $700.00 per month. Under the
agreement, the forfeitures would be suspended for a period of 12 months
or the duration of confinement, whichever was greater. As part of the pretrial
agreement, appellant agreed to execute a monthly allotment to his family
for $700.00.
Appellant's court-martial took place on September
14, 1994  5 months after approval of the extension of his enlistment,
and 5 days before the period of extension would begin. At trial, the military
judge accepted appellant's pleas. The military judge specifically discussed
with appellant the details of the agreement requiring him to establish
a monthly allotment of $700.00 for support of his family, and providing
for suspension of any adjudged forfeitures, to the extent necessary
to permit him to provide such an allotment.
During the sentencing proceeding, the members
posed specific questions about appellants continuing eligibility for pay,
if confined. The military judge, with the agreement of both parties, advised
the members that appellant would not lose either his base pay or his basic
allowance for quarters. He instructed the members separately on what action
they needed to take if they wished to adjudge forfeitures.
The members sentenced appellant to confinement
for 5 years, forfeiture of $500.00 pay per month for 5 years, and reduction
to E-4. No discharge was adjudged. The sentence was consistent with his
request that the members punish him, not his family, for his misdeeds.
Appellant had asked the members to minimize forfeitures and reductions
and to not impose a punitive discharge so he could remain eligible for
retired pay.
Under the terms of the pretrial agreement,
the adjudged forfeitures would have been suspended to the extent necessary
to provide a $700.00 per month allotment to his family during the approximately
19 months that would remain on the previously approved extension of his
enlistment.
Apparently unbeknownst to any of the participants
in the process, appellants eligibility for pay under Air Force personnel
regulations was dependent upon the timing of his trial. Had appellant begun
serving his confinement after September 19, 1994 -- the date on which his
enlistment extension became effective -- the pretrial agreement would have
been implemented in the manner anticipated by the participants, which would
have resulted in a monthly allotment for his family. His confinement began
5 days earlier, however, on September 14, 1994. Under Air Force personnel
regulations, the enlistment extension could not take effect while appellant
was in confinement, even with an approved extension. Para. 14-17a, Vol.
I, Air Force Manual 13-130. The result was that the enlistment extension
did not go into effect. Appellant's unextended period of enlistment ended,
and his eligibility for pay -- the condition necessary for provision of
an allotment to his family -- was terminated.
Appellant observes that, if the parties
had been aware of the personnel rule, the date of sentencing could have
been delayed so as to avoid consequences inconsistent with the purposes
of the pretrial agreement. The impact of the rule, however, did not come
to light until nearly 2 months after the court-martial, when appellant
received a mid-November leave and earnings statement indicating that he
was in a non-pay status.
Appellant's counsel, in his post-trial submission
to the convening authority, described the problem and noted that it undermined
the purpose of the pretrial agreement, in terms of protecting the
family. In his submission, he requested that the problem be addressed through
clemency action if it could not be resolved through finance channels. The
staff judge advocate's (SJA) advice to the convening authority noted the
issue but did not comment on the merits. With respect to a separate issue,
sentence appropriateness, the SJA recommended a reduction in the period
of confinement from 5 years to 4 years, and also recommended disapproval
of the forfeitures on the ground that they were irrelevant, in view of
appellant's no-pay status.
The convening authority agreed and approved
the findings and sentence, as modified in accordance with the SJA's
advice. As a result, appellant was confined in a no-pay status, and his
family was without the financial stability contemplated by the pretrial
agreement for the full duration of his confinement.

II
Under the issue granted by this Court, appellant
challenged the providence of his guilty pleas on the ground that the unanticipated
termination of his pay status reflected a substantial misunderstanding
of the effects of his pretrial agreement. Appellant contended that the
Government received the benefit of the bargain  guilty pleas on a charge
which could have been contested -- while appellant's family did not receive
the financial support that was at the heart of the agreement.
During the oral argument of this case on December
16, 1997, defense counsel represented to this Court that appellant was
then eligible to retire, that he had applied several times for retirement,
and that he had yet to hear of any action thereon. Several weeks after
the oral argument, on January 8, 1998, the Government on its own motion
filed with the Court a copy of a document entitled, "Action of the Secretary
of the Air Force," dated December 29, 1997. In that action, the Secretary
accepted appellants request for retirement, "effective as soon as possible."
The Governments January 8, 1998, motion was
unaccompanied by any explanation of the document's effect on the proceedings
before our Court. We therefore issued an order on March 9, 1998, directing
the Government to "demonstrate the meaning and effect of the Action of
the Secretary of the Air Force, its impact on the granted issue, and the
anticipated effective date of appellants retirement." The Government filed
a response on July 17, 1998, and appellant filed a reply thereto on August
21, 1998.
These filings indicate: (1) appellant was retired
on February 1, 1998, under 10 USC § 8914, in the grade of E-4; (2)
he has received $731.00 per month in retired pay since then; and (3) under
10 USC § 8964, he will be advanced to the grade of E-5 - the last
grade in which he served successfully  upon reaching 30 years of active
and retired service, on July 30, 2004.
The Government's response to our Order observed
that, although "the Secretarys action was not specifically called
clemency," it was not required as a matter of law. The Government added
that the Secretary's action "[was] more than fair, and more than
[made] up for any claim that the unintended consequences of the pretrial
agreement resulted in unfairness to Appellant."
Appellant disagreed, contending that the retirement
was not an act of clemency but was earned as a result of "excellence at
the top levels of duty for two decades." Further, he argued that, because
any impact on retirement is a collateral consequence of court-martial proceedings,
granting him retirement cannot redress the wrong inflicted on him. Finally,
appellant asserted that retirement does not affect the central issue of
law in this appeal - whether he would have accepted the pretrial agreement
if he had known before trial that he would lose his enlistment extension
and, as a consequence, enter a no-pay status.

III
Under the granted issue, if appellant did not
receive the benefit of the bargained-for pretrial agreement, the pleas
would be treated as improvident, the findings would be set aside, and he
would be subject to retrial. See, e.g., United
States v. Olson, 25 MJ 293 (CMA 1987). We note that in appellant's
post-trial submission to the convening authority, he did not insist upon
enforcement of the literal terms of the agreement. He recognized that it
might be difficult for the convening authority to restore his enlistment
extension, and that alternative relief in the form of reducing other portions
of the sentence might adequately fulfill the purposes of the pretrial agreement.
In his final brief in this Court, appellant
again recognized that such alternative relief might be appropriate: "Now
he seeks only to have the chance to gain the benefit of his bargain, or
some other relief that might be considered just under the circumstances."
Final Brief at 16. In short, appellant does not insist that his pleas
were improvident as a matter of law; rather, it is his position that
it is within the power of the Government to provide alternative relief
that would give him the benefit of his bargain.
The essence of the Government's most recent
submission to our Court is that the Secretary's acceptance of appellant's
application for retirement moots the granted issue because it is more than
adequate to address the effect of appellant's unanticipated placement in
a no-pay status following his trial. Whether this is the case depends upon
the laws, regulations, and practices governing retirement.
In view of post-oral argument developments
that have the potential for mooting the granted issue, the effect of the
Secretary's action as a matter of law should be resolved before we address
the granted issue. Because the effect of the Secretary's action primarily
involves the regulations and practices of the Air Force, we believe that
it should be addressed in the first instance by the Air Force Court of
Criminal Appeals, which can be expected to bring special expertise to bear
on service regulatory matters.
Upon remand, the Court of Criminal Appeals
must consider whether, as a matter of law or regular practice, a similarly
situated airman would have been placed in a retired-pay status,
as a matter of course, without regard to any litigation concerning
that airmans pretrial agreement. If so, appellants receipt of retired
pay cannot be viewed as a means of enforcing the pretrial agreement against
him. If not, then it is possible that the Secretary's action could be viewed
as an adequate means of providing appellant with the benefit of his bargain.
Moreover, even if the Court of Criminal Appeals
concludes that the Secretary's action is insufficient to provide appropriate
alternative relief, that court has authority, under Article 66, UCMJ, 10
USC § 866, to provide such additional relief -- e.g.,
with respect to the reduction in grade -- as may be necessary to achieve
that objective. If the court concludes that the Secretary's action is insufficient
and that other relief available to the court likewise is insufficient,
the court may set aside the findings, as well as the sentence, and
authorize a rehearing based on appellants improvident pleas.

IV
The decision of the United States Air Force
Court of Criminal Appeals is set aside. The case is returned to the Judge
Advocate General of the Air Force for remand to that court for further
consideration of the effect of the Secretary's action in light of this
opinion. Following such consideration, Article 67, UCMJ, 10 USC §
867, will apply, unless the court, pursuant to this opinion, concludes
that the pleas were improvident and remands the case authorizing a rehearing.
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