

   
   
   
   U.S. v. Hardcastle



IN THE CASE OF
UNITED STATES, Appellee
v.
David L. HARDCASTLE, Lance Corporal
U.S. Marine Corps, Appellant
 
No. 99-0632
Crim. App. No. 97-2088
 
United States Court of Appeals for
the Armed Forces
Submitted September 13, 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 (on brief).
For Appellee: Colonel Kevin M. Sandkuhler,
USMC, Commander Eugene E. Irvin, JAGC, USN, and Lieutenant Kevin
S. Rosenberg, JAGC, USNR (on brief).
Military Judges: A.W. Keller, Jr.,
K.B. Martin, and J. F. Blanche
 
 


THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge SULLIVAN delivered the opinion
of the Court.
Appellant was tried by a general court-martial
composed of a military judge sitting alone at Camp Pendleton, California.
Pursuant to his pleas, he was found guilty of distributing and using methamphetamine,
in violation of Article 112a, Uniform Code of Military Justice, 10 USC
§ 912a. On June 3, 1997, he was sentenced to a bad-conduct discharge,
confinement for 30 months, total forfeitures, and reduction to pay grade
E-1. On October 17, 1997, the convening authority, in accordance with a
pretrial agreement, approved this sentence but deferred and suspended the
adjudged forfeitures in excess of $400 pay per month for 6 months (with
provision for automatic remission) and deferred and waived the automatic
forfeitures in excess of $400 pay per month until 6 months after the date
of the convening authoritys action. On February 19, 1999, the Court of
Criminal Appeals affirmed in an unpublished opinion. United States v.
Hardcastle, No. 97-2088 (unpub.) (N.M. Ct.Crim.App., February 19, 1999).
On August 5, 1999, this Court granted
review on the following two issues:

I. WHETHER APPELLANTS PLEAS TO ALL
CHARGES AND SPECIFICATIONS WERE IMPROVIDENT BECAUSE APPELLANT WAS 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, FORFEITURE LIMITATION.
II. WHETHER APPELLANTS PLEAS TO ALL
CHARGES AND SPECIFICATIONS WERE IMPROVIDENT BECAUSE A MATERIAL PROVISION
IN THE PRETRIAL AGREEMENT, THE FINE/FORFEITURE SENTENCE LIMITATION, WAS
NEGOTIATED AND AGREED UPON BY THE GOVERNMENT AND APPELLANT BASED UPON A
"MUTUAL MISTAKE."

On the basis of appellate government counsels
concession on Issue II, we resolve these questions in appellants favor
and remand this case for a rehearing. See generally United
States v. Bedania, 12 MJ 373, 376 (CMA 1982).
Appellants pay at the time of this
court-martial was $1151.10 per month (E-3). The charge sheet shows that
he enlisted on June 14, 1993, for a period of 4 years. His pretrial agreement
in this case provided:

Forfeitures:
a. Adjudged Forfeitures: As
adjudged, however, adjudged forfeitures in excess of $400.00 pay per
month will be suspended from the date of the convening authoritys action,
at which time, unless sooner vacated, the suspended forfeitures will be
remitted without further action. This Agreement constitutes the accuseds
request for, and the convening authoritys approval of, deferment of those
adjudged forfeitures of pay and allowances which are to be suspended pursuant
to the terms of this Agreement and would otherwise become effective under
Article 57(a)(1), UCMJ. The period of deferment will run from the date
adjudged forfeitures would otherwise become effective until the date of
the convening authoritys action.
b. Automatic Forfeitures: Automatic
forfeitures, in excess of $400.00 pay per month, will be deferred provided
the accused establishes and maintains a dependents allotment in the amount
of $400.00 pay per month during the entire period of deferment. This
Agreement constitutes the accuseds request for, and the convening authoritys
approval of, deferment of automatic forfeitures pursuant to Article 58b(a)(1),
UCMJ. The period of deferment will run from the date the automatic forfeitures
would otherwise become effective under Article 58b(a)(1), UCMJ, until the
date the convening authority acts on the sentence. Further, this Agreement
constitutes the accuseds request for, and the convening authoritys approval
of, waiver of automatic forfeitures. The period of waiver will run from
the date the convening authority takes action on the sentence until six
months thereafter. The waived forfeitures shall be paid to Ms. Kathleen
Hardcastle, who is my dependent.

(Emphasis added.)
On June 3, 1997, the military judge
discussed this provision with appellant and his defense counsel in this
colloquy:

MJ: Paragraph three deals with forfeitures.
It indicates that should the court adjudge any forfeitures, they may be
approved as adjudged. However, any adjudged forfeitures in excess of $400.00
pay per month will be suspended from the date of the convening authoritys
action at which time, unless sooner vacated, these suspended forfeitures
will be remitted without further action.
And this agreement constitutes your
request for and the convening authoritys approval of deferment of those
adjudged forfeitures of pay and allowances which are to be suspended pursuant
to the terms of this agreement and would otherwise become effective under
Article 57(a)(1) of the UCMJ; and the period of deferment will run from
the date of the adjudged forfeitures--the date the adjudged forfeitures
would otherwise become effective until the date of the convening authoritys
action. Well, in this particular case, since I adjudged forfeitures
of all pay and allowances, paragraph (a) is applicable to your case, and
you will still be entitled to receive $400.00 pay per month, and the amount
in excess of that you are going to be required to forfeit that.
ACC: Yes, sir.
MJ: Is that your understanding,
Major Schum, as well?
DC: Yes, sir; that is correct.
MJ: And Captain Mulcahy?
TC: Yes, sir.
MJ: And the latter part of paragraph
(a) says that the deferment of those adjudged forfeitures will run from
the date they would otherwise become effective until the date of the convening
authoritys action. Is that your understanding?
ACC: Yes, sir.
MJ: Now, paragraph (b) says that regarding
automatic forfeitures in excess of $400.00 pay per month will be deferred
provided you establish and maintain a dependents allotment in the amount
of $400.00 pay per month during the entire period, and this agreement constitutes
your request for and the convening authoritys approval of deferment of
automatic forfeitures pursuant to Article 58b(a)(1) of the UCMJ. And the
period of deferment will run from the date the automatic forfeitures would
otherwise become effective under Article 58b(a)(1) of the UCMJ until the
date the convening authority acts on the sentence.
Further, this agreement constitutes
your request for and the convening authoritys approval of the waiver of
automatic forfeitures; and the period of waiver will run from the date
of the convening authoritys action on the sentence until six months thereafter,
and the waiver of forfeitures shall be paid to Mrs. Kathleen Hardcastle,
who is your dependent. Is that correct?
ACC: Yes, sir.
MJ: So as long as you immediately
take out an allotment and you make it out in the name of Kathleen Hardcastle,
the convening authority has agreed that you are going to still receive
$400.00 pay per month, and this is all going to go to Mrs. Kathleen Hardcastle.
Is that your understanding?
ACC: Yes, sir.
MJ: And should you not successfully
complete this allotment out, then the convening authority, it appears to
me, according to the provisions of paragraphs (b), hes no longer bound
or obligated to suspend any of the forfeitures in this particular case.
Is that your understanding?
ACC: Yes, sir.
MJ: Major Schum, is that your understanding
of how thats to operate?
DC: Yes, sir.
MJ: Okay; Captain Mulcahy, same?
TC: Yes, sir.

(R. 56-58) (emphasis added).
The convening authority subsequently
acted in this case on October 17, 1997. He stated:

In the general court-martial case
of Lance Corporal David L. Hardcastle [SSN] U.S. Marine Corps, tried on
7 and 11 April 1997 and 3 June 1997, at Camp Pendleton, California, the
sentence is approved and, except for the bad-conduct discharge, ordered
executed, but execution of that portion of the sentence adjudging forfeitures
in excess of $400.00 pay per month will be deferred from the date adjudged
forfeitures would become effective under Article 57(a)(1), UCMJ, until
the date of this action, and automatic forfeitures in excess of $400.00
pay per month will be deferred from the date automatic forfeitures
would become effective under Article 58b(a)(1), UCMJ, until the date of
this action and then automatic forfeitures will be waived for six months,
provided the waived automatic forfeitures are paid to Mrs. Kathleen Hardcastle,
the accuseds dependent. The suspended portions of the sentence will
last for the stated periods, at which time, unless sooner vacated, the
suspended portions of the sentence will be remitted without further action.
Total forfeitures are approved until such time as the approved and unsuspended
confinement is lawfully terminated and, thereafter, forfeiture of $600.00
pay per month is approved until discharge is ordered executed.

(Emphasis added.)
The Court of Criminal Appeals found
the following facts concerning appellants pleas of guilty:

In his two assignments of error,
the appellant asserts that his guilty pleas to all charges and specifications
are improvident due to a misunderstanding concerning a term of his pretrial
agreement. That term required the Convening Authority to defer and then
waive forfeitures in excess of $400 pay per month. Unfortunately for the
appellant, his court-martial occurred just 11 days before the expiration
of his enlistment (EAS). As appellant notes in this brief, "[p]ursuant
to MILPERSMAN 1050155 and PAYPERSMAN 10223, Appellant is not entitled to
receive pay or allowances while being held past his EAS in order to serve
his adjudged confinement." Appellants Brief at 4. Both the appellant and
his trial defense counsel have submitted post-trial affidavits attesting
to their lack of knowledge of these provisions. In fact, they indicate
that they believed that the appellant would continue to receive pay based
upon the terms of the pretrial agreement.
Following submission of appellants
brief, this court decided United States v. Williams, ___ MJ ___,
No. 97-00848 (N.M.Ct.Crim.App. 31 Dec 1998). In Williams we upheld
the providence of pleas under similar circumstances. Applying the Williams
framework, we have examined the providence inquiry and find no evidence
that his pleas were either improperly induced or involuntary. Accordingly,
we find that the appellants pleas were not rendered improvident by his
misunderstanding of pay regulations that would apply to his case.

Unpub. op. at 2 (emphasis added).

___ ___ ___
Our starting point in resolving this
appeal is the Governments concession that "because appellant did not receive
the benefit of his bargain, his pleas were improvident." Govt.s Answer
to Final Brief at 2. It reached this conclusion based on this Courts decisions
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 his bargain on which his guilty plea is based).
Appellate government counsel articulated
its reasoning for this concession:

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 pretrial agreement. 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, since 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 3-4 (footnotes omitted).
It also provided an alternative rationale
for its concession:

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, he would receive $400.00 pay
per month, and would forfeit the amount in excess of that. Record at
57. Although the military judge misadvised appellant regarding the meaning
of the forfeiture provisions of the pretrial agreement, appellant, trial
counsel, and defense counsel stated that they agreed with the military
judges interpretation of the pretrial agreement. Record at 42, 57-59.
Regardless, even if this provision is collateral, appellant is entitled
to succeed.

Govt. Brief at 4 n.2 (emphasis added).
We conclude that appellants case is
controlled by our decision in United States v. Bedania, supra
at 376. The military judge expressly stated to appellant that the pretrial
agreement entitled him to $400 pay per month to go to his dependent after
his court-martial. This case is different from United States v. Albert,
30 MJ 331 (CMA 1990), cert. denied, 498 U.S. 1028 (1991),
where there was no representation by the convening authority, trial counsel,
or the military judge as to post-trial entitlement to pay and the automatic
forfeiture provisions of Article 58b, UCMJ, 10 USC § 858b, were not
involved. Accordingly, we conclude that the Governments concession is
appropriate.
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.


CRAWFORD, Chief Judge (concurring in
the result):
I concur in the disposition of this
case based solely on appellate government counsels concession. See
United States v. Williams, No. 99-0409, ___ MJ ___ (2000)(Crawford,
C.J., concurring). This is a case of detrimental reliance with a simple
solution -- make appellant financially whole. See United States
v. Cooke, 11 MJ 257 (CMA 1981); see also United States
v. Koopman, 20 MJ 106 (CMA 1985). The Government's surrender under
the cover of United States v. Mitchell, 50 MJ 79 (1999), a case
unlike the one at bar, is a mystery to me, for I can find no evidence that
appellant's plea was other than freely, voluntarily, and intelligently
made.
Prior to trial, appellant negotiated
a pretrial agreement in which the convening authority agreed to suspend
any adjudged confinement in excess of 36 months for 12 additional months.
Through a combination of deferment and waiver actions, the convening authority
also agreed to leave appellant with $400 pay each month until 6 months
after the convening authority acted, provided appellant initiated an allotment
in that amount payable to Kathleen Hardcastle.
According to a memorandum by Major
Schum, appellants trial defense counsel, he contacted the Disbursing Office
for the 1st Force Service Support Group units at Camp Pendleton,
California. Major Schum explained his proposed pretrial agreement, as it
related to forfeiture of pay, and also explained appellant would reach
the end of his active service while in confinement. Then, Major Schum relates:

The Disbursing Office representative
told me that if the convening authority agreed to the specific terms of
the proposed agreement, Private Hardcastle would still receive the $400.00
pay per month for his son. The representative believed that the deferment
and waiver of automatic forfeitures would keep him from entering a no-pay
status while confined past his end of active service.

Appellant was sentenced on June 3, 1997,
11 days prior to the end of his enlistment contract with the Marine Corps.
In reliance on his defense counsels advice and facing a maximum punishment
that included, inter alia, 20 years confinement, appellant
pled guilty to distributing and using methamphetamines. The military judge
sentenced him to a bad-conduct discharge, 30 months of confinement, total
forfeitures, and reduction to E-1. The record is silent as to what, if
any, pay appellant received subsequent to his court-martial.
The record does show that on October
3, 1997, appellant submitted an extensive clemency request to the convening
authority pursuant to RCM 1105 and 1106, Manual for Courts-Martial, United
States (1995 ed.). Although appellant was incarcerated during June, July,
August, and September, 1997 (subsequent to the expiration of his enlisted
service), there is no mention in any of these clemency matters about Kathleen
Hardcastle not receiving $400 a month or the Government failing to keep
its end of the pre-trial agreement bargain. On October 17, 1997, the convening
authority took action deferring and waiving the forfeitures in accordance
with the pretrial agreement.
In September 1998, over a year after
his court-martial convened, appellant filed an affidavit claiming that
he entered into this pretrial agreement solely to secure the benefit
of financial support for his son. Interestingly, appellant has submitted
no evidence of what funds, if any, were dispursed to Kathleen Hardcastle
in accordance with the pretrial agreement. The Government has produced
no pay records, or any other evidence, to show what money, if any, Ms.
Hardcastle has received.
Justice has no price tag and pretrial
agreements can not always fit within the strictures of contract-law principles.
Koopman, supra at 110. However, so long as contract-law principles
are not outweighed by Constitutional protections and imperatives, we will
follow those principles when examining relevant aspects of pretrial agreements.
United States v. Acevedo, 50 MJ 169, 172 (1999); see Government
of Virgin Islands v. Scotland, 614 F.2d 360, 364 (3d Cir. 1980); cf.
United States v. Olson, 25 MJ 293, 297 (CMA 1987).
Both Olson and its purported
progeny, Mitchell, are grounded on the precept that if or
when an appellant does not receive the benefit of his bargain, the
plea will be treated as improvident. Nothing in these decisions prohibits
the Government from belatedly compensating an appellant to make him whole.
Furthermore, nothing prohibits a lower court from ordering specific performance
by the Government to ensure a servicemember gets that to which he or she
is entitled.
When the misunderstanding in a pretrial
agreement involves fiscal considerations, the better practice is to allow
the Government the option of placing both parties in the respective positions
for which they bargained. In this case, the Government could have paid
appellant $400 per month for the number of months agreed upon, plus interest,
and restored appellant to the position for which he freely and voluntarily
bargained.
Based on appellate government counsels
concession, I assume that the Department of the Navy has no mechanism available
to make appellant whole. Similarly, I presume that counsel believes that
the lower court has no ability to fashion an appropriate remedy for any
failure by the Government to live up to its end of the agreement. Accordingly,
I join, albeit reluctantly, in setting aside the findings and sentence
and permitting the Government the opportunity to shoulder the expense of
a rehearing in this case.


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