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

                             No. ACM S32471
                         ________________________

                           UNITED STATES
                               Appellee
                                     v.
                        Omari N. ROBINSON
                  Airman (E-2), U.S. Air Force, Appellant
                         ________________________

          Appeal from the United States Air Force Trial Judiciary
                          Decided 15 August 2018
                         ________________________

Military Judge: Tiffany M. Wagner.
Approved sentence: Bad-conduct discharge, confinement for 84 days, and
reduction to E-1. Sentence adjudged 10 April 2017 by SpCM convened at
Buckley Air Force Base, Colorado.
For Appellant: Captain Dustin J. Weisman, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Cara Condit,
USAF; Major Mary Ellen Payne, USAF; Captain Michael T. Bunnell, USAF.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
Judge DENNIS delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge MINK joined.
                         ________________________

                PUBLISHED OPINION OF THE COURT
                         ________________________

DENNIS, Judge:
   Appellant, pursuant to a pretrial agreement, pleaded guilty to one
specification each of wrongful use of marijuana, wrongful possession of
marijuana with the intent to distribute, wrongful introduction of marijuana,
wrongful distribution of marijuana, and wrongful solicitation of another
Airman to unlawfully distribute marijuana, in violation of Articles 112a and
                  United States v. Robinson, No. ACM S32471


134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 934.
Appellant was also convicted, contrary to his pleas, of one specification of
wrongful solicitation of another Airman to unlawfully use marijuana in
violation of Article 134, UCMJ. The military judge sentenced Appellant to a
bad-conduct discharge, confinement for 84 days, 1 and reduction to the grade of
E-1. The convening authority approved the sentence as adjudged.
    Appellant submitted his case with one assignment of error: whether
Appellant’s guilty plea to Charge I, Specification 2, for possession of marijuana
with intent to distribute on divers occasions is improvident when the evidence
the military judge relied upon proves only a single continuous possession and
intent.
    The court specified the following issue:
       DOES THE PROVISION OF THE PRETRIAL AGREEMENT
       REQUIRING    THE  CONVENING     AUTHORITY   TO
       “CONSIDER DISAPPROVING, COMMUTING, MITIGATING,
       OR SUSPENDING THE ENTIRE SENTENCE OR ANY
       PORTION THEREOF, AS A MATTER OF CLEMENCY WHEN
       TAKING ACTION” RENDER THE PLEA IMPROVIDENT OR
       REQUIRE NEW POST-TRIAL PROCESSING?
    We resolve the case based on our specified issue, find the plea improvident,
and set aside the findings and sentence. We consequently need not address the
issue raised by Appellant.

                                  I. BACKGROUND
    Appellant’s journey to the Air Force began at the recommendation of his
grandmother, who saw it as an opportunity for him to prosper after a very
difficult upbringing in Florida. In February 2016, Appellant enlisted in the Air
Force as a space systems operator. After successfully completing basic military
and technical school training, Appellant arrived at Buckley Air Force Base
(AFB), Colorado, in August 2016. Despite the opportunity foreseen by his
grandmother, the Air Force proved to be a difficult place for Appellant.
   By October 2016, Appellant had befriended two other Airmen. When one of
the Airmen purchased a cannabis-infused candy, specifically, “adult gummy
bears,” and offered it to Appellant, he accepted. A few months later, the same
Airman asked Appellant to purchase marijuana for the friends to share.
Appellant then sought marijuana from an Airman who had previously
“expressed that he would be able to help [Appellant] with similar things.” After

1 The military judge credited Appellant with 84 days of pretrial confinement against
the term of his confinement.


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having an acquaintance legally obtain “enough marijuana for three joints” at
an off-base marijuana dispensary, Appellant drove back to Buckley AFB where
he and his friends shared the marijuana over the next three days and
Appellant offered to share it with his roommate. For this misconduct,
Appellant was charged with wrongful use, possession with the intent to
distribute, distribution, introduction, and solicitation.
    On 3 April 2017, Appellant entered into a pretrial agreement (PTA), which
was signed by Appellant, trial defense counsel, the staff judge advocate (SJA),
and the special court-martial convening authority. Appellant agreed to plead
guilty to all but one specification 2 in exchange for the convening authority’s
agreement to approve no more than three months of confinement, disapprove
any adjudged hard labor without confinement, and “[c]onsider disapproving,
commuting, mitigating, or suspending the entire sentence or any portion
thereof, as a matter of clemency when taking Action.” The convening authority
also agreed to withdraw and dismiss a specification of communicating a threat
in violation of Article 134, UCMJ.
    The military judge discussed each provision of the PTA with Appellant
prior to accepting his guilty plea. On the provision at issue, the military judge
had the following colloquy with Appellant:
        MJ [Military Judge]: And that also, that the convening
              authority will consider disapproving, commuting,
              mitigating or suspending the entire sentence or any
              portion thereof as a matter of clemency when taking
              action.
                And you understand what that means?
        ACC [Appellant]: Yes, ma’am.
        MJ:     It doesn’t mean that he has to, but he will consider doing
                it. Do you understand that?
        ACC: Yes, ma’am.
   The military judge neither inquired further into Appellant’s or either
counsel’s understanding of this provision nor clarified the ways in which the
convening authority would be limited by the restrictions set forth in Article 60,
UCMJ, 10 U.S.C. § 860. The military judge ultimately accepted Appellant’s

2 Appellant did not offer to plead guilty to one specification of wrongful solicitation of
another Airman to unlawfully use marijuana. Appellant agreed to enter into a
reasonable stipulation of fact and to waive his right to members, the production of
expert consultants for the findings or sentencing, the travel of any witness for the
findings or sentencing phases of trial, and all motions that may be waived under the
Rules for Courts-Martial.


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guilty plea without objection from trial or defense counsel. At the conclusion of
trial, the military judge confirmed that Appellant had been advised of his post-
trial and appellate rights by trial defense counsel. The written rights
advisement was included in the record as an appellate exhibit and stated, in
relevant part, the following language: “After the record of trial is prepared, the
Convening Authority will act on your case. The Convening Authority may
approve the sentence adjudged, approve a lesser sentence, or disapprove the
sentence entirely.”
    During the post-trial processing of Appellant’s case, the SJA advised the
convening authority, “you do not have the authority to disapprove, commute or
suspend in whole or in part the punitive discharge. You do have the authority
to disapprove, commute or suspend in whole or in part the confinement,
forfeitures and/or reduction in rank.” Conversely, trial defense counsel’s
clemency memorandum to the convening authority stated that the convening
authority could “modify” Appellant’s “reduction in rank and/or bad conduct
discharge.” 3 Appellant himself made only one request in his clemency petition
to the convening authority: that the convening authority “consider upgrading
his BC [bad-conduct] discharge.” Neither the SJA nor trial defense counsel
informed the convening authority that he was bound by the PTA to “consider
disapproving, commuting, mitigating, or suspending the entire sentence or any
portion thereof, as a matter of clemency when taking Action.”
                                     II. DISCUSSION
    At issue in this case is the agreed upon provision requiring the convening
authority to “[c]onsider disapproving, commuting, mitigating, or suspending
the entire sentence or any portion thereof, as a matter of clemency when taking
Action.” Appellant argues that his misunderstanding of this provision—
hereafter referred to as the “consideration provision”—rendered his plea
improvident. We agree with Appellant for two reasons. First, we find that the
consideration provision as explained to Appellant was inconsistent with Article
60, UCMJ, and thus a legal nullity. Second, we find that the consideration
provision was a material term of the PTA.
A. Validity of the PTA’s Consideration Provision
   The interpretation of a PTA is a question of law, which we review de novo.
United States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009); United States v.
Acevedo, 50 M.J. 169, 172 (C.A.A.F. 1999). “We begin our analysis of the
pretrial agreement by looking first to the language of the agreement itself.”

3Because of our disposition of this case, we do not address whether the conflict between
the SJA’s advice to the convening authority and the trial defense counsel’s clemency
memorandum requires new post-trial processing in accordance with United States v.
Addison, 75 M.J. 405 (C.A.A.F. 2016).


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Acevedo, 50 M.J. at 172. At the core of the consideration provision is the
question of whether the convening authority had the power to take the action
promised in the consideration provision. A convening authority’s power to take
action on an adjudged sentence is governed by Article 60, UCMJ, which we
must separately interpret de novo. United States v. McPherson, 73 M.J. 393,
395 (C.A.A.F. 2014). “The first step is to determine whether the language at
issue has a plain and unambiguous meaning with regard to the particular
dispute in the case. The inquiry ceases if the statutory language is
unambiguous and the statutory scheme is coherent and consistent.”
McPherson, 73 M.J. at 385 (quoting Barnhart v. Sigmon Coal Co., 534 U.S.
438, 450 (2002)).
    Congress significantly changed the statutory scheme in Article 60, UCMJ,
through the National Defense Authorization Act for Fiscal Year 2014. See Pub.
L. No. 113–66, § 1702, 127 Stat. 954–958 (2013) (codified at 10 U.S.C. §
860(c)(4)(A)). What had been authority “to modify the findings and sentence of
a court-martial [a]s a matter of command prerogative involving the sole
discretion of the convening authority” became limited power to make only
certain modifications under a restricted set of circumstances. Article
60(c)(4)(A), UCMJ, now provides that “the convening authority . . . may not
disapprove, commute, or suspend in whole or in part an adjudged sentence of
confinement for more than six months or a sentence of dismissal, dishonorable
discharge, or bad conduct discharge.” 10 U.S.C. § 860(c)(4)(A). Congress set
forth only two narrow exceptions to these limitations:
       . . . Upon the recommendation of the trial counsel, in recognition
       of the substantial assistance by the accused in the investigation
       or prosecution of another person who has committed an offense,
       the convening authority . . . shall have the authority to
       disapprove, commute, or suspend the adjudged sentence in
       whole or in part. . . .
       . . . If a pre-trial agreement has been entered into by the
       convening authority and the accused, as authorized by Rule for
       Courts-Martial 705, the convening authority . . . shall have the
       authority to approve, disapprove, commute, or suspend a
       sentence in whole or in part pursuant to the terms of the pre-
       trial agreement . . . . 4
10 U.S.C. §860(c)(4)(B)–(C) (emphasis added).


4 The remaining portion of Article 60(c)(4)(C) sets forth further restrictions in cases
involving a mandatory minimum sentence. That portion of the statute is inapplicable
here, as Appellant was not subject to a mandatory minimum sentence.


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                  United States v. Robinson, No. ACM S32471


    The plain language of Article 60(c)(4)(C), UCMJ, provides a convening
authority the power to take only four types of action regarding an appellant’s
sentence pursuant to a PTA: approve, disapprove, commute, or suspend. In
Appellant’s case, the convening authority agreed to take three types of action
regarding Appellant’s sentence: to approve no more than three months
confinement; to disapprove a sentence to hard labor without confinement; and
to consider taking other actions.
    In light of the specified actions authorized by Article 60(c)(4)(C), UCMJ, it
is unclear what authorized action the parties purported to agree upon through
the consideration provision. The Government argues that the provision should
be “read disjunctively” to apply only to those actions that the convening
authority had the power to take under Article 60, UCMJ, with or without a
PTA. 5 We find the Government’s argument legally and logically flawed.
   The Government’s argument is legally flawed because a “disjunctive
reading” of the consideration provision fails to account for the most
fundamental requirement of a PTA: an accused’s understanding of the
agreement. We have long charged military judges with ensuring an accused
understands and agrees to the terms of a PTA. Rule for Courts-Martial
(R.C.M.) 910(f)(4). Here, when Appellant entered into the PTA, he believed the
convening authority had the power to disapprove the entire sentence, including
a bad-conduct discharge if adjudged. The military judge did little to clarify
Appellant’s understanding when she advised him that the consideration
provision “doesn’t mean that he [the convening authority] has to, but he will
consider doing it.” Likewise, trial defense counsel advised Appellant that the
convening authority could disapprove the entire sentence.




5The Government asserts that it complied with both the limitations set forth in Article
60(c)(4)(A), UCMJ, and the consideration provision.
       The government does not concede non-compliance with the plain
       language of “the consideration provision.” The provision requires the
       convening authority to “consider disapproving, commuting, mitigating,
       or suspending the entire sentence or any portion thereof, as a matter
       of clemency when taking Action.” [. . .] This provision could, with equal
       linguistic justification, be read disjunctively—offering discretion to the
       convening authority. In other words, so long as the convening authority
       “considered disapproving, commuting, mitigating, or suspending . . .
       any portion” of the adjudged sentence, then his duty was properly
       discharged. There were portions of the sentence, e.g. reduction in rank,
       for which the convening authority could consider providing relief—
       though he decided against it. Thus, the [G]overnment was compliant
       with “the consideration provision” of the PTA[.]


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    The Government’s argument is logically flawed because including a
provision that required the convening authority to consider taking an action
he had no power to take would serve no purpose. The futility of such a provision
is compounded by the fact that the convening authority was already required
to consider Appellant’s clemency submission. R.C.M. 1107(b)(3)(iii). The record
is void of any evidence from the trial itself that the consideration provision was
meant to be read disjunctively. We therefore decline to apply such an
interpretation.
    We instead focus our analysis where it belongs: the plain language of
Article 60(c), UCMJ. Under the statute, the convening authority did not have
the power to comply with the consideration provision as Appellant understood
it unless one of the two exceptions, substantial assistance or PTA, applied. We
find neither exception applicable to Appellant’s case. First, there is no evidence
that trial counsel submitted a recommendation in recognition of substantial
assistance by Appellant, which would qualify him for clemency under the
exception set forth in Article 60(c)(4)(B), UCMJ. Second, the exception set forth
in Article 60(c)(4)(C), UCMJ, authorizes a convening authority only to
“approve, disapprove, commute, or suspend” an adjudged sentence pursuant to
the terms of the PTA. We find this language unambiguous. If the consideration
provision was intended to make Appellant eligible for clemency under the PTA
exception, it failed to do so.
    Because the word “consider” is absent from the list of the four authorized
actions in Article 60(c)(4)(C), UCMJ, such a term in a PTA creates no exception
to the general limitation on the convening authority’s clemency powers. See
Article 60(c)(4)(A), UCMJ. We will not read into the statute more than the
plain language of the words used. See United States v. Kruse, 75 M.J. 971, 975
(N-M. Ct. Crim. App. 2016) (finding no “clear expression of Congressional
intent permitting a [convening authority] to take action inconsistent with the
law or plain terms of a pretrial agreement”); see also United States v. Berry,
No. ACM 39183, 2018 CCA LEXIS 128, at *13–14 (A.F. Ct. Crim. App. 12 Mar.
2018) (unpub. op.) (“Congress created an unambiguous limitation on the
convening authority’s power to grant the requested clemency: that the power
exists only ‘[u]pon the recommendation of the trial counsel.’”) (quoting 10
U.S.C. § 860(c)(4)(B)). To hold otherwise would allow a convening authority to
essentially rewrite legislation in the form of a PTA provision.
   In light of the limitations set forth in Article 60(c)(4)(A), UCMJ, the
convening authority’s agreement to “consider disapproving, commuting,
mitigating, or suspending the entire sentence or any portion thereof, as a
matter of clemency when taking Action” was in essence an empty promise. By
unknowingly bargaining for a possibility that never existed, Appellant did not



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freely and voluntarily enter into the PTA. As a result, the PTA cannot be
enforced.
B. Materiality of the PTA’s Consideration Provision
   We must next determine what if any remedy is appropriate. We begin by
assessing the effect of this invalid provision on the providence of Appellant’s
pleas. Put another way, was the consideration provision a material term of the
PTA? We find that it was.
    An accused is entitled to the benefit of the bargain on which his guilty plea
is based. See United States v. Williams, 53 M.J. 293, 295 (C.A.A.F. 2000); see
also Santobello v. New York, 404 U.S. 257, 262 (1971) (“[W]hen a plea rests in
any significant degree on a promise or agreement of the prosecutor, so that it
can be said to be part of the inducement or consideration, such promise must
be fulfilled.”). Whether a term is material to the agreement “depends upon the
circumstances of the case.” United States v. Smith, 56 M.J. 271, 273 (C.A.A.F.
2002). Two circumstances lead to our conclusion that the consideration
provision was a material term of Appellant’s PTA.
   First, Appellant said that it was. In a declaration submitted to the court,
Appellant averred:
       My greatest concern heading into trial was that I would get a
       punitive discharge-something that would stick with me the rest
       of my life and affect my ability to find work. Even though I
       couldn’t work out a pretrial agreement that took away the
       possibility of a punitive discharge, I accepted the pretrial
       agreement because I thought the Convening Authority could
       disapprove the punitive discharge as being excessive if the
       military judge gave me one.
    Second, Appellant made only one clemency request: that the convening
authority disapprove his bad-conduct discharge. Appellant’s request was
echoed by his trial defense counsel, who submitted a separate memorandum
asking the convening authority to disapprove Appellant’s bad-conduct
discharge.
    Citing language from Appellant’s clemency submission, the Government
argues that the consideration provision did not influence Appellant’s decision
to plead guilty. Specifically, the Government points to Appellant’s post-trial
assertion that he “would’ve plead[ed] guilty without a pretrial agreement or
safety net because it was the right thing to do.” We are not persuaded. The
statement upon which the Government so heavily relies was made in the
context of Appellant’s attempt to convince the convening authority to “upgrade
[Appellant’s] BC discharge.” Appellant was trying to make the case that, by
pleading guilty, he had demonstrated his willingness to take responsibility for

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his misconduct. We will not read into his request to the convening authority
an unwitting waiver of the benefit of his bargain.
       Where, as here, an accused pleads guilty relying on incorrect
       advice from his attorney on a key part of the pretrial agreement
       . . . 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.
Williams, 53 M.J. at 296.
    The circumstances of Appellant’s case drive us to only one conclusion:
Appellant entered into the PTA because he believed the convening authority
had the power to grant the only relief he sought, disapproval of the bad-conduct
discharge. Appellant did not receive the benefit of his bargain. Accordingly, we
find the PTA unenforceable and Appellant’s guilty plea improvident. We are
thus compelled to set aside the findings of guilt on the offenses to which
Appellant pleaded guilty.
C. Contested Specification and Forum Selection
    As a final matter, we discuss the impact of our holding on the specification
Appellant contested. Appellant’s PTA contained a provision that he waive his
“right to a trial by qualified court-martial members (to include enlisted
members) and agree to trial by military judge alone.” When discussing
Appellant’s waiver in the context of Appellant’s guilty plea, the military judge
asked Appellant whether his request for trial by judge alone was pursuant to
the PTA. Appellant responded in the affirmative.
    The validity of forum selection is a question of law we review de novo.
United States v. St. Blanc, 70 M.J. 424, 427 (C.A.A.F. 2012). R.C.M. 903(c)
“protects the forum selection right codified in Article 16, UCMJ, by ensuring
that an accused’s waiver of the right to trial by members is knowing and
voluntary.” Id. (citing 10 U.S.C. § 816). In St. Blanc, the court found that a
change in the maximum sentence while the appellant’s case was on direct
appeal did not render his forum selection for trial by military judge invalid. In
doing so, the United States Court of Appeals for the Armed Forces noted that
“[w]hile there are myriad reasons an accused may choose one forum over
another, R.C.M. 903 does not require that a military judge inquire into any
non-enumerated factor or collateral matters that may have influenced the
accused’s election.” Id. at 429–30. Here, unlike the record in St. Blanc, the
record in Appellant’s case makes clear the reason Appellant made his forum
selection: Appellant’s request for trial by military judge alone was made
pursuant to the term of the PTA requiring he do so.



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                 United States v. Robinson, No. ACM S32471


   Because Appellant’s choice of forum was made pursuant to the PTA we
have found to be unenforceable, we find—under the facts of this case—that
Appellant’s forum choice was not knowing and voluntary as to the contested
specification, and we set aside the military judge’s finding of guilty as to that
specification. See Article 66(c), UCMJ, 10 U.S.C. § 866(c).

                               III. CONCLUSION
    The findings of guilt and the sentence are hereby SET ASIDE. A rehearing
is authorized. Article 66(e), UCMJ, 10 U.S.C. § 866(e).


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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