UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                       CAMPANELLA, HERRING, and PENLAND
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                         Specialist JEREMY H. HAVERY
                          United States Army, Appellant

                                   ARMY 20160133

         Headquarters, 2nd Infantry Division/ROK-US Combined Division
                         Tiernan P. Dolan, Military Judge
         Lieutenant Colonel Timothy P. Hayes, Jr., Staff Judge Advocate


For Appellant: Major Christopher D. Coleman, JA; Captain Daniel C. Kim, JA (on
brief).

For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed.


                                   22 February 2017

                              ----------------------------------
                               OPINION OF THE COURT
                              ----------------------------------

PENLAND, Judge:

       While we affirm the conviction and sentence in this case, we make this
decision in precedential fashion in order to emphasize a fundamental requirement:
the terms and conditions of a pretrial agreement must be reduced to writing.

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of four specifications of assault consummated by battery, in
violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928 (2012)
[hereinafter UCMJ]. With the exception of adjudged forfeitures, the military judge
sentenced appellant to the maximum authorized punishment—a bad-conduct
discharge, confinement for twenty-four months, and reduction to the grade of E-1.
The convening authority approved the adjudged sentence.

       The government originally charged appellant with two specifications of sexual
assault, one specification of aggravated assault, and one specification of assault
consummated by battery. A written pretrial agreement between the convening
HAVERY—ARMY 20160133

authority and appellant provided that, with respect to the sexual assault and
aggravated assault specifications, appellant offered to plead guilty to the lesser-
included offense of assault consummated by battery. With respect to the remaining
assault consummated by battery specification, appellant offered to plead guilty. In
return, the convening authority agreed to disapprove any confinement in excess of
twenty-four months, which was the maximum sentence to confinement authorized for
the offenses to which appellant pleaded guilty.

       The pretrial agreement contained no promise from the convening authority to
forbear prosecution of the greater offenses (sexual assault and aggravated assault) to
which appellant pleaded not guilty; indeed, the agreement was silent on this topic.
During inquiry pursuant to United States v. Care, 18 U.S.C.M.A. 535, 541, 40
C.M.R. 247, 253 (1969), appellant informed the military judge the pretrial
agreement contained all of the understandings and agreements in the case and that no
one had made any unwritten promises to him in order to obtain his guilty pleas. The
military judge then turned to trial counsel and asked whether the government
intended to go forward on the remaining offenses as charged. When trial counsel
responded no, the military judge predictably and reasonably asked, “Why not?” The
following exchange occurred:

             TC: Your Honor, we have--we have an offer to plead
             guilty which the CG has accepted, Your Honor.

             MJ: I agree, and the offer to plead guilty does not prevent
             you from proceeding on the greater offenses. So I am
             asking why you are not proceeding on the greater offenses.

             TC: We are declining to do so, Your Honor. And the
             offer to plead guilty can be accepted--was to be accept the
             128--the lesser included offenses.

             MJ: Yes, what I think I am divining here and what I think
             you are inferring Captain [JS], is that there is an unwritten
             agreement not to proceed on the greater offenses, is that
             fair to say?

             TC: Yes, Your Honor.

             MJ: Defense, do you agree?

             DC: Yes, I apologize, Your Honor.

      With this new understanding of appellant’s expectations, the military judge
addressed trial counsel, “I am not convinced [] that the convening authority agreed
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HAVERY—ARMY 20160133

to be so bound. And I do not want to put [government counsel] in the position of
speaking for the convening authority over something of this import.” Trial counsel
requested and received a recess to contact the staff judge advocate (SJA). After the
recess, trial counsel informed the military judge that the SJA told them, “the
GCMCA’s intent is not to move forward with the greater offenses.” The Care
inquiry resumed and after the military judge found appellant guilty in accordance
with his pleas, the case moved to presentencing.

       After hearing and considering matters in aggravation, extenuation, and
mitigation, the military judge deliberated and adjudged the sentence described
above. He then reviewed the quantum, which contained the convening authority’s
agreement to disapprove any adjudged confinement in excess of twenty-four months.
The military judge observed it was “strikingly odd that the primary benefit of this
deal was not written into the agreement.” We agree, for based on the parties’
belated disclosure of the sub rosa proviso, the quantum only offered the following
protection: the convening authority would provide relief in the event the military
judge sentenced appellant to an illegal confinement term. Considering both the
infrequency with which military judges adjudge unlawful sentences and a convening
authority’s duty to correct such anomalous results in any event, the quantum in this
case appears to be surplusage.

       Rule for Courts-Martial [hereinafter R.C.M.] 705(d)(2) clearly requires: “All
terms, conditions, and promises between the parties shall be written [in a pretrial
agreement].” (Emphasis added). Lest practitioners regard this as a task without a
purpose, the rule facilitates a military judge’s fulfillment of duty to ensure an
accused has knowingly, voluntarily, and intelligently pleaded guilty. United States
v. Perron, 58 M.J. 78, 81 (C.A.A.F. 2003) (“The military justice system imposes
even stricter standards on military judges with regards to guilty pleas than those
imposed on federal civilian judges.”). This duty includes ensuring the accused
understands all provisions of any pretrial agreement. United States v. Soto, 69 M.J.
304, 307 (C.A.A.F. 2011). It also includes ensuring the provisions of any pretrial
agreement are consistent with the law. See id. at n. 1; United States v. Riley, 72
M.J. 115, 120 (C.A.A.F. 2013); and United States v. Partin, 7 M.J. 409, 412 (C.M.A.
1979) (discussing the military judge’s “responsibility to police the terms of pretrial
agreements to insure compliance with statutory and decisional law as well as
adherence to basic notions of fundamental fairness”). This rule also evinces and
confirms the fundamental role of the convening authority, for only he or she may
enter a pretrial agreement with an accused. R.C.M. 705(a).

       While it was error for the convening authority to reach a sub rosa agreement
with appellant, because the government did not attempt to prove the greater
offenses, appellant was not prejudiced. We commend the military judge’s attention
to detail, which led to the necessary and full understanding of the agreement
between the parties.
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HAVERY—ARMY 20160133


    The findings of guilty and the sentence are affirmed.

    Senior Judge CAMPANELLA and Judge HERRING concur.

                                    FOR THE
                                    FOR THE COURT:
                                            COURT:




                                    MALCOLM
                                    MALCOLM H.  H. SQUIRES, JR.
                                                   SQUIRES JR.
                                    Clerk
                                    Clerk of
                                          of Court
                                             Court




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