UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                              RISCH, FEBBO, and WOLFE
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                          Sergeant MONTRELL L. MAYO
                           United States Army, Appellant

                                  ARMY 20140901
                                      ---------------
                                         ORDER
                                      ---------------

      WHEREAS:

      On 7 April 2017, this Court issued a memorandum opinion affirming the
findings and sentence in appellant’s case. United States v. Mayo, ARMY 20140901,
2017 CCA LEXIS 239 (Army Ct. Crim. App. 2017) (mem. op.). On 26 April 2017,
appellate defense counsel filed a motion for reconsideration and a motion to admit
Defense Appellate Exhibit (DAE) C, an affidavit from appellant’s trial defense
counsel. On 5 May 2017, we granted the motion to admit DAE C for consideration
on whether to grant the motion for reconsideration.

      NOW, THEREFORE, IT IS ORDERED:

      Appellant’s motion for reconsideration is DENIED.

FEBBO, Judge, concurring in the denial of the motion to reconsider:

       While not included in our initial opinion, we were fully aware of the issues
that appellant now asks us to reconsider. I see no reason to reconsider our sentence
assessment in this case.

        Finding that appellant and the convening authority could have finalized a
pretrial agreement limiting appellant’s sentence to confinement to fifty-years
requires a copious ration of speculation served alongside a heaping helping of
inference. “A criminal defendant does not have an absolute right under the
Constitution to have his guilty plea accepted by the court,” and there is no right to a
pretrial agreement. North Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970).
Appellant’s request for a retroactive sentence assessment based on an agreement not
signed would be applicable to all similar circumstances where pretrial negotiations
fail to mature into a signed pretrial agreement. To provide relief in this case opens
the door to other collateral challenges based on any sentence which is higher than
what was proposed. We are poorly situated to determine the reasons that a pretrial
MAYO—ARMY 20140901

agreement was not signed. Regardless of the less favorable outcome, appellant
forfeited the benefit of any potential pretrial agreement in this case when he did not
pursue acceptance of a pretrial agreement.

       As Judge Wolfe agrees, the sentence adjudged by the court-martial in this
case is correct in law and correct in fact. UCMJ art. 66(c). The only question,
therefore, is whether the sentence “should be approved.” Id.

       Sentence appropriateness involves the judicial function of assuring justice is
done and that the accused gets the punishment he deserves. United States v. Healy,
26 M.J. 394, 395 (C.M.A. 1988). This requires “individualized consideration of the
particular accused on the basis of the nature and seriousness of the offense and the
character of the offender.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamuly, 10 U.S.C.M.A. 102, 106-107, 27 C.M.R.
176 180-81 (C.M.A. 1959))(internal quotations omitted). In reviewing the sentence
we must recognize the trial court saw and heard the witnesses and evidence. Id.;
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). While this Court
has discretion to determine the appropriateness of any sentence, we are not,
however, a court of equity. United States v. Nerad, 69 M.J. 138, 145 (C.A.A.F.
2010).

       Appellant brutally murdered his girlfriend and fellow soldier—a fact we
should not quickly overlook or soon forget. In my view the sentence is correct in
law, correct in fact, and should be approved. Any additional sentence relief would
be an act of clemency, which is beyond our authority.

WOLFE, Judge, dissenting:

       I would reconsider our sentence assessment in this case. Under the unusual
facts of this case, there is some evidence that the military unique requirement for an
inquiry pursuant to United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969),
[hereinafter Care inquiry] has caused appellant to serve a harsher sentence then he
otherwise would. Under stare decisis, it is not for this court to question or
reconsider the fundamental assumptions of Care. However, we should consider
whether to provide sentence relief to appellant.

       Contemporaneous pretrial records adequately demonstrate that appellant was
guilty, wanted to plead guilty, and was offered a pretrial agreement for a term of
years. However, appellant was so overcome by grief and remorse from killing his
fiancé that—upon being informed of the requirements of pleading guilty at court-
martial—appellant rejected any pretrial agreement that would require him to go
through his murderous acts in detail. Such an unusual set of facts requires a bit
more explanation.


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        By appellate happenstance, the record on appeal in this case is unusual. In
appellant’s initial filing with this Court he alleged that his trial attorney was
ineffective in failing to properly advise him on the possibility of parole if he signed
a pretrial agreement. After the government submitted affidavits and notes regarding
his counsel’s performance, appellant withdrew the assigned error. Thus when we
initially decided the case, although there was no longer before us an allegation of
ineffective assistance of counsel, we had numerous documents providing insight into
the pretrial thinking of appellant and his counsel.

   Affidavits and defense counsel notes submitted by the government on appeal
provide a factual basis to support the following: 1

       The counsel for government made an offer of a pretrial agreement that would
        have limited appellant’s confinement to fifty years.

       Had appellant been sentenced to a term of fifty years appellant would have
        been eligible for parole after serving ten years of confinement. See Dep’t of
        Defense Instruction 1325.07 (11 Mar. 2013).

       Appellant told his attorney he would plead guilty and would accept “whatever
        they were willing to give him.” Appellant repeated this guidance to his
        attorney.

       Appellant, upon being informed of the requirements for a Care inquiry, told
        his counsel “[i]f they try to make me talk to them after I admit guilt, I just
        won’t talk to them. No one can make me talk to them.”

       Appellant refused to participate in a Care inquiry not because he was
        unwilling to disavow a defense or because he did not believe himself to be
        guilty, but rather because, in the words of his counsel, “he was debilitated by
        remorse for his actions.” Appellant maintained this position repeatedly as his
        counsel prepared for trial, counseled appellant on the risks of trial, and sought
        advice from other defense counsel.

1
  I note that it was the government that provided this information to the court and
appellant has not disputed these facts on appeal. I further note the affidavits are not
the result of post-hoc reasoning and are instead amply supported by contemporaneous
notes taken by counsel during trial preparations. In general, I would not make any
factual findings as to the truth of these facts as they are not technically part of the
record of trial and were not litigated at the trial level. See generally United States v.
Ginn, 47 M.J. 236 (C.A.A.F. 1997). However, a DuBay hearing would appear
unnecessary as there is no factual dispute. See United States v. DuBay, 17
U.S.C.MA. 147, 37 C.M.R. 411 (1967).

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      Appellant then pleaded not guilty and was convicted of premeditated murder.

      Appellant was sentenced to be confined for life without the possibility of parole.

   If these facts are true, appellant was guilty and wanted to plead guilty, but was
unable to plead guilty because of the requirements of Care. If so he was unable to
get the benefit of either a pretrial agreement or the sentence reduction that comes
with pleading guilty and taking responsibility for one’s actions. Stated differently,
appellant was arguably—but tangibly—hurt by the requirement for a Care inquiry.
As a matter of logic, there has always been the theoretical class of accuseds who
have been disadvantaged because of the requirement for a Care inquiry (that is, the
class of accuseds who would have received the benefit of a lesser sentence that
accompanies taking responsibility for one’s actions had the military justice system
had less stringent rules on pleading guilty). What is unique about this case is that
there is a somewhat developed record on this issue and that the possible harm to
appellant may be measurable.

   Our superior court’s decision in Care rested on two foundations. The first was
the court’s developing interpretation of Article 45(a), UCMJ. The second was three
recent (at the time) Supreme Court decisions affecting guilty pleas in federal court.
Both merit a brief comment.

    Article 45(a), UCMJ, provides if an accused sets up a matter inconsistent with a
plea of guilty or if it appears that the plea of guilty was entered into “improvidently,”
the case shall proceed as though the accused had pleaded not guilty. In United States
v. Chancelor, 16 U.S.C.M.A. 297, 36 C.M.R. 453 (1966), which the court in Care
adopts by reference, the court provided a detailed legislative history of the purpose
behind Article 45(a), UCMJ.

    In Care, the court noted three decisions by the Supreme Court in 1969 “[bore]
importantly” on the court’s decision. United States v. Care, 18 C.M.A. 535, 40
C.M.R. 247 (1969) (citing McCarthy v. United States, 394 US 459 (1969), Halliday
v. United States, 394 U.S. 831 (1969), and Boykin v. Alabama, 395 U.S. 238 (1969)).
In McCarthy, the Court held that a plea of guilty had to be set aside unless the court
personally inquires whether the defendant understood the nature of the charge. The
Court’s decision in McCarthy, which addressed a non-military case, involved
interpreting Federal Rule of Criminal Procedure 11 [hereinafter Fed. R. Crim.
Proc.].

   In 1969, the C.A.A.F’s decision in Care was well-aligned with the Supreme
Court’s decision in MacCarthy. However, as any practitioner knows, since 1969 the
federal courts and military courts have gone in different directions in interpreting
what is required to establish a factual and legal basis for a guilty plea. As the
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MAYO—ARMY 20140901

Supreme Court arguably walked backed McCarthy, in subsequent years military case
law has remained steadfast. Compare Henderson v. Morgan, 426 U.S. 637, 646
(1976) (allowing the factual basis of a guilty plea to be satisfied by a “factual
statement,” “stipulation” or “representation” by counsel) with United States v.
Jordan, 57 M.J. 236 (C.A.A.F. 2002).

   Military justice practice also did not change when parts of McCarthy were
“overruled” by changes to Fed. R. Crim. Proc. 11 in 1983. See United States v.
Tunning, 69 F.3d 107, 111 (6th Cir. 1995) (“The new [Fed. R. Crim. Pro.] 11 “was
meant to overrule McCarthy . . . .”).

   Nor did military justice practice change in 1984 when the President promulgated
the Rules for Courts-Martial. In many instances, to include R.C.M. 910 which
governs guilty pleas, the President’s implementation of the rule followed the
“mandate” of Article 36, UCMJ to “as far as he considers practicable, apply the
principles of law and the rules of evidence generally recognized in the trial of
criminal cases in the United States district courts . . . .” United States v. Dowty, 60
M.J. 163 (C.A.A.F. 2004) (describing Article 36 as a “mandate”). United States v.
Ankeny, 30 M.J. 10 (C.A.A.F. 1990) (describing Article 36, UCMJ, as a
“legislative[] mandate”); United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994). As
the drafter’s analysis makes clear, R.C.M. 910(c)-(e) was copied from Fed. R. Crim.
Pro. 11 with one or two substantive exceptions. R.C.M. 910 analysis at A21-59
(making clear that R.C.M. 910 is based on Mil. R. Evid. R. 11, but is “consistent”
with the 1969 Manual for Courts-Martial [hereinafter MCM]).

   Here is the relevant provision from the 1969 MCM:

             (3) A plea of guilty will not be accepted unless the
             military judge . . . after the accused has been questioned,
             is satisfied not only that the accused understands the
             meaning and effect of his plea and admits the allegations
             to which he has pleaded guilty but also that he is
             voluntarily pleading guilty because he is in fact convinced
             that he is in fact guilty.

MCM (1969 ed.) ¶70b.

      The current version of this rule is contained in R.C.M. 910(e) as follows:

             (e) Determining the accuracy of the plea. The military
             judge shall not accept a plea of guilty without making
             such inquiry of the accused as shall satisfy the military
             judge that there is a factual basis for the plea. The
             accused shall be questioned under oath about the offenses.
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MAYO—ARMY 20140901

The noticeable change between the two is the degree to which a factual admission
must be extracted from the accused, and the removal in 1984 of the requirement that
the accused be personally convinced of his own guilt. R.C.M. 910(e) requires the
accused to provide “a factual basis” while the 1969 MCM required the accused to
admit to each allegation and that the accused personally is “convinced that he [or
she] is in fact guilty.” As far as I can ascertain, the 1984 promulgation of R.C.M.
910 has had little effect on the procedures for guilty pleas in military courts. For
example, the typical Benchbook colloquy between an accused and the military judge
begins with a nearly verbatim recitation of the provisions of the 1969 MCM
completely untouched by that same paragraph’s revocation in 1984. Dep’t of the
Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook [hereinafter
Benchbook], para. 2-2-3 and 2-2-8 (10 Sept. 2014).

      This inertia may be because although R.C.M. 910 was different, and
substantially copied Fed. R. Crim. Pro. 11 in most regards, it did not directly
contradict the provisions in the 1969 Manual or Care. See R.C.M. 910 analysis at
A21-59. That is, while the new rule could have triggered a rethinking of Care—it
did not require one. In a series of cases, and over Judge Crawford’s repeated
dissents, our superior court reinforced the central holding of Care without revisiting
the underlying foundations of the opinion. See e.g. United States v. Redlinski, 58
M.J. 117 (C.A.A.F. 2003); United States v. Jordan, 57 M.J. 236 (C.A.A.F. 2002).

       Just recently, but likely too late to help appellant, Congress made the first
substantive amendments to Article 45, UCMJ, since the initial passage of the UCMJ.
The Article now states that a “variance from the requirements of this article is
harmless error if the variance does not materially prejudice the substantial rights of
the accused.” National Defense Authorization Act for Fiscal Year 2017 [hereinafter
FY17 NDAA], Pub. L. 114-328, § 5227 (2016) (Pleas of the accused). This mirrors
the change made to Fed. R. Crim. Pro. 11(h) in 1983 which the 6th Circuit in
Tunning described as “overruling” the Supreme Court’s interpretation of that rule in
McCarthy. 69 F.3d at 111.

       The effect of the amendment to Article 45, UCMJ, will of course play itself
out over time. Any effect in the amendment is likely to move military practice more
in line with that of federal district courts. What happens, for example, if an accused
attempts to plead guilty by agreeing on the record that a stipulation of fact
establishing the factual basis for the plea of guilty is accurate? Is that error? If that
is error, is it harmless, invited or waived? Such a procedure may even comply with
a narrow reading of R.C.M. 910 and Article 45, UCMJ, (at least as amended). But, it
would not comply with law that governs the outcome of this case.

       My concern in this case is not only that appellant could have possibly
benefited had the amendments to Article 45 been effective earlier. But it is also this
is not a case where appellant’s resistance to conducting a Care inquiry stems from
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the unwillingness to admit guilt or to his refusal to disavow a defense. See e.g.
United States v. Figura, 44 M.J. 308 (C.A.A.F. 1996) (rejecting “Alford” pleas in
the military when the accused is unwilling to admit guilt); but see United States v.
Luebs, 20 U.S.C.M.A. 475, 43 C.M.A. 315 (1971) (citing North Carolina v. Alford,
400 U.S. 25 (1970) and allowing an accused to plead guilty when the accused admits
guilt but professes a lack of memory in committing the offense). Here, by contrast,
the evidence on appeal and submitted by the government is appellant’s refusal to
submit to a Care inquiry was based solely on his overwhelming sense of guilt and
remorse.

       Additionally, the difference between military and federal districts courts in
accepting guilty pleas, despite the “mandate” of Article 36 as well as the subtle
changes caused by the promulgation of R.C.M. 910, gives me pause and leads to this
lengthy discussion. I have found no more thoughtful analysis of my concerns than
Judge Cox’s concurring opinion in two cases: both named Johnson. United States v.
Johnson, 21 M.J. 211 (C.M.A. 1986), United States v. Johnson, 42 M.J. 443
(C.A.A.F. 1995). While addressing different issues, in both cases Judge Cox
addressed the degree to which appellate paternalism is appropriate within the context
of the military justice system. Judge Cox admits “there is a price to be extracted for
our paternalism.” Id. at 447. Perhaps that will be the result here.

        For certain, the legal landscape has changed substantially since Care was first
decided. The trial judiciary, independent from the chain of command, did not yet
exist when our superior court decided Care in 1968. The Military Rules of Evidence
were not promulgated until 1980. The Rules for Courts-Martial came four years
later in 1984. Perhaps the two most important developments, however, took place
outside of the MCM. The first, was the development of case law that rooted out
unlawful command influence (UCI) by requiring the government to disprove beyond
a reasonable doubt that UCI existed or affected the case. See United States v.
Biagase, 50 M.J. 143 (C.A.A.F. 1999). The second, was the establishment of an
independent defense service staffed with qualified counsel under Article 27, UCMJ.
Most, if not all, of the potential harms that Care attempts to prevent can be
addressed in the first instance by competent independent defense counsel. 2



2
  Although unheard of, the UCMJ still permits trial by special court-martial without
a military judge and permits non-certified counsel to represent an accused at special
courts-martial. See Article 26(a); Article 27(c). However, even these technical
exceptions will be gone after the effective date of the FY17 NDAA. National
Defense Authorization Act for Fiscal Year 2017, Pub. L. 114-328, §§ 5184, 5186
(2016)(Detailing, qualifications, and other matters relating to military judges)
(Qualifications of trial counsel and defense counsel).

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MAYO—ARMY 20140901

       Care does, on the other hand, serve important interests. A proper Care
inquiry provides a public accounting of an accused’s guilt that may give additional
public confidence in the outcome that would be absent in a more abbreviated
proceeding.

       A proper Care inquiry also removes all doubt that an accused’s plea is
voluntary, knowing, and not the result of coercion. If all defense attorneys were
competent, Care’s mandates would be mostly redundant with the advice of an
accused’s attorney. In this regard, Care functions to avoid the stricter requirements
of Strickland v. Washington, 466 U.S. 668 (1984), when evaluating a counsel’s
competency in the guilty plea context. As a result, military appellate courts rarely
address whether a defense counsel was competent in providing advice to an accused
who pleaded guilty. 3

       To be absolutely clear, I agree this court cannot find appellant is entitled to
relief as a matter of law. Any change in the requirements for Care cannot originate
in this lower-intermediate appellate court. If appellant believes Care should be
revisited, he needs to petition our superior court and demonstrate “good cause” for
relief. See Article 67, UCMJ. However, it is worth noting that few cases are more
interwoven into the fabric of military justice than Care. The central holding of Care
has been reaffirmed over and over again by our superior court—and without much
hesitation. There are literally volumes of cases affirming and applying Care.

       The question we face, therefore, is not whether Care should be revisited or
whether we must grant appellant relief. The former question is a question beyond
our authority and the latter question is clearly answered in the negative. Rather, the
question is whether this Court “should” provide sentencing relief under our unique
powers under Article 66(c), UCMJ. Appellant acknowledges our limited authority
here, and it is this question appellant asks us to reconsider.

       Here, we face a difficult question. If the accused’s sentence was higher than
it would have been absent the requirements of Care, we could use our highly
discretionary authority to reduce the sentence. On the other hand, providing an
appellant with the benefit of a “pretrial agreement” that was never in fact signed
certainly presents its own problems. Continuing with the textile metaphor, there is a
danger that if one could pull the thread of Care in this one case (by giving appellant
sentencing relief based on a pretrial agreement he didn’t sign) we risk unraveling the
fabric of Care in other cases.



3
  Of course, counsel who cannot competently advise an accused on pleading guilty
will face bigger hurdles when the plea is rejected and that same counsel represents
the accused in a contested trial.
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MAYO—ARMY 20140901

        Simply put, few accuseds want to go through a Care inquiry. For an inquiry
that was designed to protect an accused, at the time of trial the Care inquiry presents
risk. First, anything the accused says during a Care inquiry can be used against the
accused in determining the sentence. It therefore is often in an accused’s interest to
say as little as possible about the offense as the military judge will allow. 4 Say too
much and the sentence may reflect the additional (but unnecessary) information.
Second, once an accused has decided to plead guilty, the Care inquiry presents the
risk the military judge will reject the accused’s plea and any associated protections
provided by a pretrial agreement. An accused who has already tactically weighed
the risks and elected to plead guilty will often see the rejection of a guilty plea (at
trial if not on appeal) as an outcome best avoided.

       Accordingly, there is the possibility that if we provided sentencing relief to
appellant in this case we may find ourselves having created a Care loophole that
future accuseds may be all too happy to jump through as well. Many an accused
would prefer to have both the possibility of an acquittal a contested trial presents
and the effective benefit of a pretrial agreement.

       Whether we should grant sentencing relief to appellant is a substantial
question. Thus, I do not presume to know at this time how I would answer the
question. It may be in the end that granting appellant’s motion to reconsider would
leave us exactly where we started. However, I do think we should answer this
question, and therefore I would grant the motion to reconsider.

       I conclude this dissent with the cautionary words of Justice White, writing for
the Supreme Court: “The prohibitions against involuntary or unintelligent pleas
should not be relaxed, but neither should an exercise in arid logic render those
constitutional guarantees counterproductive and put in jeopardy the very human
values they were meant to preserve.” Alford, 400 U.S. at 39.



4
  This dilemma was presented in a case recently decided by the CAAF. Appellant
had alleged that the military judge abused his discretion in extracting too much
information out of the accused. United States v. Price, 76 M.J. 136 (C.A.A.F.
2017).

Likewise, in United States v. Wiggleton, ARMY 20140638, 2016 CCA LEXIS 567
(Army Ct. Crim. App. 2016) (mem. op.), we discussed some of the simultaneous
forces that pull an accused in opposite directions during a Care inquiry. In that
case, the appellant wanted the military judge to accept his guilty plea, but explained
his guilt in an incredulous manner so that it did not directly contradict his pretrial
sworn statements. The result was a legally valid guilty plea based on nearly
impossible facts.
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DATE: 16 June 2017

                     FOR THE COURT:




                     MALCOLM H. SQUIRES, JR.
                     Clerk of Court

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      JALS-CCR
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