         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201600012
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                        JONATHAN A. DODD
             Fire Controlman First Class (E-6), U.S. Navy
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

     Military Judge: Captain David M. Harrison, JAGC, USN.
          For Appellant: Major Jason L. Morris, USMCR.
  For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC,
                USN; Captain Cory Carver, USMC.
                      _________________________

                         Decided 16 August 2016
                         _________________________

Before F ISCHER , P ALMER , and C AMPBELL , Appellate Military Judges
                       _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

   CAMPBELL, Judge:
    At a general court-martial, the appellant pleaded guilty and was
convicted of possessing child pornography during 2012 and 2013 in violation
of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. A military
judge sentenced the appellant to eight years’ confinement, reduction to pay
grade E-1, total forfeiture of pay and allowances, and a dishonorable
discharge.
    In accordance with a pretrial agreement (PTA), the convening authority
approved but commuted the dishonorable discharge to a bad-conduct
discharge, approved but suspended confinement in excess of 12 months for a
period of 12 months, and approved the reduction to pay grade E-1. The
convening authority also approved and purported to effectuate negotiated
protections against the execution of some adjudged and automatic forfeitures.
Specifically, the convening authority suspended adjudged forfeitures in
excess of $1,044.00 pay per month for a period of 12 months, and waived
automatic forfeitures in excess of $1,044.00 pay per month “for the remaining
period of time that the [appellant] is in confinement.”1
    After the case was submitted without an assignment of error, we specified
two issues: (1) whether a mutual misunderstanding of the PTA’s material
terms about automatic and adjudged forfeitures resulted in improvident
pleas given the appellant’s lack of pay entitlements during confinement after
his end of active obligated service (EAOS) date; and (2) if so, whether some
appropriate alternative relief is available as an adequate means of providing
him with the benefit of his bargain. We find that the parties mutually
misunderstood material PTA terms and, with the agreement of the parties,
take corrective action in the decretal paragraph.
                                  I. BACKGROUND
    After his arraignment and pretrial motions, the appellant, his civilian
defense counsel (CDC), and his detailed military defense counsel signed the
two parts of his PTA offer, on 25 August 2015, and submitted it for the
convening authority’s consideration.2 The convening authority approved the
offer a week later, on 1 September 2015.3 The parties agreed upon the
following sentence limitation terms regarding potential forfeitures:
         a. Adjudged Forfeitures: Adjudged forfeitures in excess of two-
         thirds (2/3) pay per month for twelve (12) months will be
         disapproved.
         b. Automatic Forfeitures: Automatic forfeitures in excess of
         two-thirds (2/3) pay per month for twelve (12) months will be
         deferred until the taking of Action by the convening authority,
         and upon taking of Action, will thereafter be waived by the




   1 Commander, U.S. Naval Forces Japan General Court-Martial Order No. 5-15 of
11 Jan 2016 at 3. As the appellant served no pretrial confinement, and the military
judge awarded no confinement credit, the appellant’s confinement commenced on the
date he was sentenced, 17 November 2016.
    2 Appellate Exhibits XIV and XV. Despite its heading as the “MEMORANDUM

OF PRETRIAL AGREEMENT (Part II),” AE XV contains all of the sentence
limitation portions of the agreement.
   3   AE XIV at 7; AE XV at 2.

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         convening authority for the remaining period of time that the
         accused is in confinement.4
    The appellant’s entitlement to E-6 pay did not change pending his guilty
plea, which occurred on 17 November 2015—the trial date originally set at
arraignment. After the providence inquiry, but before accepting the
appellant’s plea or reviewing the first part of his PTA, the military judge
initially advised him:
         It appears from the charge sheet that your EAOS, end of active
         obligated service, will be 8 December of this year. . . . Now if
         you were sentenced to a period of confinement and your end of
         active obligated service date arrives while you are serving
         confinement as part of your sentence, then all of your military
         pay and allowances will stop on your EAOS date regardless of
         the terms of your pretrial agreement.5
    Next, addressing automatic punishments generally, the military judge
further advised:
         Additionally, there are automatic consequences of your
         sentence that may affect your pay and allowances and reduce
         you in paygrade. I want to discuss those automatic
         consequences briefly with you to ensure you understand them.
         First, if your sentence includes either a punitive discharge or
         confinement or confinement in excess of six months, the law
         requires the automatic forfeiture of all pay and allowances
         during any period of confinement. That automatic forfeiture
         occurs whether the sentence is suspended or not unless the
         convening authority takes action to stop or delay the
         forfeitures. . . . Secondly, if the approved sentence includes a
         punitive discharge or confinement in excess of 90 days, the law
         requires you to be administratively reduced to the paygrade of
         E-1. Again, this reduction would occur automatically unless the
         convening authority takes action to stop or suspend it.6
   Hours later, after announcing the sentence, the military judge reviewed
Part II of the PTA and explained its impact on the appellant’s punishments:
         MJ: . . . All adjudged forfeitures. This court awarded forfeiture
         of all pay and allowances. Anything in excess of two-thirds pay
         will be disapproved, meaning the convening authority will only

   4   AE XV at 1.
   5   Record at 128-29.
   6   Id. at 130-31.

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         approve a two-thirds pay per month for a period of 12 months.
         Forfeiture, automatic forfeitures, also at the two-thirds pay per
         month for 12 months will be deferred as set forth therein, and
         your reduction to E-1 may be approved as adjudged. Do counsel
         agree with the court’s interpretation of the pretrial agreement,
         Part II of the pretrial agreement?
         TC: The government agrees, Your Honor.
         CDC: The defense agrees, sir.
         MJ: [Appellant], is that also your understanding of the
         sentence limitation portion of your pretrial agreement?
         ACC: Yes, sir.
         MJ: Do you have any questions about the effect that Part II of
         your pretrial agreement, that it has on the sentence adjudged
         by this court?
         ACC: No, sir.7
     On 16 December 2015, the appellant’s military trial defense counsel
submitted a clemency request. It asked the convening authority to suspend
all confinement in excess of six months based upon the appellant’s
extraordinary family circumstances and his need to financially support his
wife and children:
         As was discussed [by the appellant at trial], his children will
         likely have to return to China to be raised by their
         grandparents while [his] wife tries to establish a home in
         America. [His] wife is a stay-at-home mother who will have an
         extremely difficult time finding employment in the United
         States [with] only a limited understanding of the English
         language . . . .8
    The 28 December 2015 staff judge advocate’s recommendation (SJAR)
advised the convening authority that the appellant was “entitled to the
agreed-upon benefits” of the PTA.9 To its recitation of the PTA forfeiture
provisions, it added only that, “[a]lthough not stated in the [PTA], both
parties understand that this [two-thirds pay per month] amount will be
stated in whole dollar amounts in the Convening Authority’s Action.”10


   7   Id. at 217-18.
   8   Clemency Request of 16 Dec 2015 at 1.
   9   SJAR at 1.
   10   Id. at 2.

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Regarding “[r]equests for [d]eferment,” the SJAR indicated, “[t]here are no
requests either as adjudged or as mandated under the UCMJ.”11
                                II. DISCUSSION
    Interpretation of a PTA’s meaning and effect is a question of law that we
review de novo. United States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009). An
appellant’s pleas are improvident when a mutual misunderstanding about a
material PTA term results in him not receiving the benefit of the bargain.
United States v. Perron, 58 M.J. 78, 82 (C.A.A.F. 2003) (citing United States
v. Hardcastle, 53 M.J. 299, 302 (C.A.A.F. 2000); United States v. Williams, 53
M.J. 293, 296 (C.A.A.F. 2000)). Therefore, a guilty plea may be withdrawn
when a court-martial’s “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. United States v. Bedania, 12 M.J. 373, 376 (C.M.A. 1982).
   “[I]t is the military judge’s ‘responsibility to police the terms of [PTAs] to
insure compliance with statutory and decisional law as well as adherence to
basic notions of fundamental fairness.’” United States v. Soto, 69 M.J. 304,
307 (C.A.A.F. 2011) (quoting United States v. Partin, 7 M.J. 409, 412 (C.M.A.
1979)). “To ensure that the record reflects the accused understands the [PTA]
and that both the Government and the accused agree to its terms, the
military judge must ascertain the understanding of each party during the
inquiry into the providence of the plea.” United States v. Smith, 56 M.J. 271,
272-73 (C.A.A.F. 2002) (citations omitted). See also RULE FOR COURTS-
MARTIAL 910(f), MANUAL FOR COURTS MARTIAL, UNITED STATES (2012 ed.).
While R.C.M. 910(h)(3) requires only that the military judge “inquire into any
parts of a [PTA] which were not previously examined” after announcing the
sentence, the ultimate requirement is that the military judge “address the
parties’ understanding of any limitations on the sentence in order to assure
that there is a mutual agreement.” Smith, 56 M.J. at 273 (citations omitted).
A. Mutual misunderstanding of material PTA terms
   As a predicate matter, we must determine if the negotiated forfeiture
protections are material terms of the agreement. It is clear that the appellant
specifically bargained for provisions that would spare at least one-third of his
pay from forfeitures, no matter the ultimate sentence. While the parties did
not specify an actual dollar amount, these PTA terms are undeniably
beneficial for the appellant, with expected consequences amounting to several
thousands of dollars in pay. The extenuation and mitigation evidence,

   11   Id. at 3.

                                       5
including his unsworn statement, as well as the post-trial clemency request,
indicate that significant concern about his family’s dire financial situation
being exacerbated by the court-martial motivated the appellant’s actions
during the trial. Thus we have little difficulty concluding that the forfeiture
protection terms are material. See United States v. Moore, No. 200000603,
2000 CCA LEXIS 206, at *8, unpublished op. (N-M. Ct. Crim. App. 15 Sep
2000) (finding that a “limitation on forfeitures was a material factor inducing
him to enter into a PTA and plead guilty[,]” where it was “evident from the
record,” including post-trial clemency submissions, “that the appellant
intended to negotiate an assurance from the Government that his dependent
children would receive a fixed amount of financial support from his pay for a
specified period of time while he served out his sentence”).
   1. Foreseeable and almost inexorable conclusions from the PTA language
   The first specified issue focuses on whether the parties failed to
appreciate the consequences of pay entitlements ending at the appellant’s
EAOS and thus mistakenly believed that the PTA ensured the appellant’s
family would receive a portion of his pay during each month of confinement.
But viewed more broadly, wholly apart from the EAOS aspect, the forfeiture
provisions include obvious internal timing inconsistencies (at odds with
obvious efforts to ensure an uninterrupted money flow) and a purported
requirement for the convening authority to exceed his lawful ability to waive
automatic forfeitures.
    First, contrary to the SJAR’s indications, the PTA terms constituted a
request, and an agreement, to defer automatic forfeitures until the date the
convening authority approved the sentence. See Art. 58b, UCMJ; Art. 57,
UCMJ. However, adjudged total forfeitures, not deferred by a PTA, begin 14
days after sentencing. Art. 57, UCMJ. So despite the automatic forfeiture
deferment, all of the appellant’s pay would stop due to Article 57 even before
he reached his EAOS.
    Second, pursuant to Article 58b(b), UCMJ, automatic forfeitures may be
waived for the benefit of an accused’s dependents, “for a period not to exceed
six months.” Nonetheless, the appellant’s PTA contemplates that “automatic
forfeitures in excess of two-thirds (2/3) pay per month for twelve (12) months
[would] be waived by the convening authority for the remaining period of time
that the accused is in confinement.”12 In light of the appellant’s confinement
beginning only after the trial, on 17 November 2015, and the convening
authority’s requirement to suspend only confinement in excess of 12 months,
clearly the appellant’s anticipated release from confinement date was well
over six months from when the convening authority’s action reasonably

   12   AE XV at 1 (emphasis added).

                                       6
would be completed.13 Yet the SJAR made no reference to the maximum
waiver period for automatic forfeitures under Article 58b. Citing only the
need to state any portions of total forfeitures in whole dollar amounts, the
SJAR instead quoted the PTA’s waiver period as part of the “agreed-upon
benefits” to which the appellant “is entitled.”14 Consequently, the convening
authority’s action stated, “Pursuant to the pre-trial agreement, automatic
forfeitures in excess of $1,044.00 pay per month for 12 months will be waived
for the remaining period of time that the accused is in confinement.”15
   The treatment that the appellant, prosecutor, civilian and military trial
defense counsel, staff judge advocate, and convening authority gave to these
terms in crafting the PTA, and how they approached the forfeiture
protections in the post-trial documents, collectively demonstrates significant
misunderstandings about forfeiture protections, even independent of the
EAOS aspect.
    We are also convinced that the related misunderstanding of a major
collateral consequence of the appellant’s court-martial—losing pay
entitlements during post-trial confinement beyond his EAOS—resulted
foreseeably and almost inexorably from this PTA language. Losing pay
entitlements is simply incongruent with the unique forfeiture protections
specifically negotiated to cover the entire time the appellant spent in
confinement. More than implying, the PTA unambiguously stated that a
portion of the appellant’s pay would not be forfeited while he was confined for
up to a year. Neither the clemency request, SJAR, nor convening authority’s
action acknowledged how the negotiated waiver of automatic forfeitures and
disapproval of adjudged forfeiture (as well as the convening authority’s
unilateral decision to suspend rather than disapprove a portion of the
adjudged forfeitures from the date of his action) became simply an illusory
promise by the Government with the appellant’s EAOS just 22 days after
trial. Instead, the convening authority’s action, following the SJAR, gave the
appearance of meaningful performance on forfeiture protections by
unambiguously ordering that a portion of the appellant’s pay not be forfeited
each month during the entire time he remained confined.
   2. Readily apparent mutual misunderstanding not corrected at trial
   Furthermore, the misunderstanding was made readily apparent to the
judge, who did not correct it. In arguing that there was no mutual
misunderstanding of material PTA terms, the Government relies, in part, on

   13The military judge authenticated the record of trial on 11 December 2015.
Record at 220.
   14   SJAR at 1.
   15   General Court-Martial Order No. 5-15 at 3 (emphasis added).

                                          7
the military judge initially advising the “[a]ppellant that all his pay and
allowances would terminate at his EAOS despite any terms of his [PTA],”16
that the “[a]ppellant stated he understood,”17 and that “nobody, including the
Military Judge, the Trial Counsel, the Defense Counsel nor the Convening
Authority[,] told him that he would receive pay beyond his EAOS.”18
However, the appellant asserts that his “understanding of the terms of the
[PTA] when [he] entered into it was that it protected [him] from adjudged
and automatic forfeitures . . . [beyond] special court-martial-type
punishment.”19
    We find no indication that any of the parties contemplated the impact of
the appellant’s EAOS on the forfeiture protections during PTA negotiations—
completed months before the guilty plea—or at any point before the military
judge’s EAOS comments at the trial. Such an understanding is neither
memorialized within either part of the PTA, nor is it reflected in the plain
language of the forfeiture provisions themselves. Cf. United States v.
Jackson, No. 201200475, 2013 CCA LEXIS 475, at *3, 7-8 (N-M. Ct. Crim.
App. 30 May 2013) (per curiam) (finding no mutual misunderstanding when a
PTA deferring automatic forfeitures for six months also contained written
acknowledgement of the appellant’s “understanding that if ‘held in
confinement beyond [his EAOS that he would] not receive any pay or
allowances by operation of law, regardless of the terms of this [PTA].”) (first
alteration in original). Instead, the PTA terms here gave the impression to all
parties that a portion of the adjudged forfeitures would be disapproved, and a
portion of automatic forfeitures would be deferred and then waived while the
appellant served confinement after trial.
    Knowing that the appellant had no confinement credit and was merely
three weeks from reaching his EAOS put the military judge here in a position
to address and correct the misunderstanding. Yet, he never connected the
pending EAOS consequences to the forfeiture provisions after announcing the
sentence. Cf. Jackson, 2013 CCA LEXIS at *4, 8 (finding no mutual
misunderstanding where, after directing appellant’s attention to his PTA’s
automatic forfeiture provision, the military judge noted he was past his
[EAOS]’ and that ‘under operation of law you will not be entitled to any pay
anyway during that period. . . , [S]o this provision of your pretrial agreement
will also have no effect”). To the contrary, the military judge’s explanation of

   16   Answer on Behalf of Appellee of 7 Jul 2016 at 13.
   17   Id.
   18   Id. at 12.
   19Appellant’s Motion to Attach Document filed on 8 Jun 2016, Appellant’s
Declaration of 26 May 2016 at paragraphs 4-5.

                                            8
the PTA’s impact on the sentence in our case further reinforced the
understanding that the convening authority was obligated to defer and waive
a portion of the automatic forfeitures and disapprove a portion of the
adjudged forfeitures as stated in the PTA. Where, as here, the “military judge
expressly stated on the record that the provision” in the PTA “relating to
automatic forfeitures would in fact apply” to the appellant, “’remedial action
is required.’” United States v. McCall, No. NMCCA 201200461, 2013 CCA
LEXIS 471, at *6-7 (N-M Ct. Crim. App. 30 May 2013) (per curiam) (quoting
Smith, 56 M.J at 279).
B. Remedy
   Despite our having found that the Government did not, and could not,
comply with a material PTA term, the appellant, nonetheless, “‘is entitled to
the benefit of any bargain on which his guilty plea was premised.’” Smith, 56
M.J. at 272 (quoting Bedania, 12 M.J. at 375)). When specific performance is
not possible, “[a]n appellate court may determine that alternatives to specific
performance or withdrawal of a plea could provide an appellant with the
benefit of his or her bargain,” provided the appellant accepts the alternate
remedy. Perron, 58 M.J. at 86.
    So we consider whether the alternative relief suggested by the parties is
an appropriate and adequate means of providing the appellant with the
benefit of his bargain here. When there is an “agreement by the parties as to
the proper remedy” for the “mutual misunderstanding” that “result[ed] in an
accused not receiving the benefit of his bargain,” we may “take remedial
action in our decretal paragraph consistent with the requests of both the
appellant and the Government.” United States v. Johnson, No. 200501043,
2006 CCA LEXIS 325, at *19-21, unpublished op. (N-M. Ct. Crim. App. 6 Dec
2006) (citations omitted).
    In response to the specified issues, instead of seeking to withdraw his
guilty plea, the appellant initially requested relief in the form of “suspending
adjudged reduction in rank and waiving automatic reduction in rank for 51
days following the convening authority’s action, and suspending all adjudged
confinement following his action.”20 In the alternative, the appellant
requested “that all remaining confinement from the date of this brief be
suspended in order to allow him to seek gainful employment to provide for his
wife and children, which, at base, was the purpose for seeking relief from
forfeitures.”21




   20   Appellant’s Brief and Assignments of Error of 26 May 2016 at 13.
   21   Id. at 16.

                                           9
    The Government maintains that there was no mutual misunderstanding
of material PTA terms and that the appellant received the benefit of his
bargain in protection from applicable forfeitures. But should we find
otherwise, the Government agrees that alternative relief is appropriate.
Citing our inability to suspend punishment, the Government “in consultation
with the Convening Authority, proposes that the adjudged reduction in rank
be disapproved and confinement in excess of that already served as of the
date of this Court’s action be disapproved” instead of granting the appellant’s
requested relief.22 The appellant now requests that we “approve the potential
alternative relief proposed by the Government in its Answer.”23
   Having the parties’ agreement as to a proper remedy, we take our
remedial action consistent with their agreement.
                                   III. CONCLUSION
    The findings are affirmed. Only so much of the approved sentence as
provides for confinement for 274 days and a bad-conduct discharge is
affirmed.
   Senior Judge FISCHER and Senior Judge PALMER concur.


                                            For the Court




                                            R.H. TROIDL
                                            Clerk of Court




   22   Appellee’s Answer at 14.
   23   Reply on Behalf of Appellant of 1 Aug 2016 at 3.

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