                          UNITED STATES, Appellee

                                        v.

                              Cameron T. FELDER
                                   Private
                            U.S. Army, Appellant

                                  No. 04-0027

                          Crim. App. No. 20021011

       United States Court of Appeals for the Armed Forces

                       Argued March 2, 2004

                       Decided May 5, 2004

     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.

                                    Counsel

For Appellant: Captain Terri J. Erisman (argued); Colonel Robert
D. Teetsel, Lieutenant Colonel Mark Tellitocci and Major Allyson
G. Lambert (on brief).

For Appellee: Lieutenant Colonel Randy V. Cargill (argued);
Colonel Lauren B. Leeker and Lieutenant Colonel Margaret B.
Baines (on brief).

Military Judge: John J. Carroll III




     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Felder, No. 04-0027



     Chief Judge CRAWFORD delivered the opinion of the Court.

     Before a military judge sitting alone as a special court-

martial, Appellant, pursuant to his pleas, was convicted of two

specifications of failing to go to his appointed place of duty,

absence without leave, disobeying a commissioned officer,

disobeying a noncommissioned officer, and two specifications of

assault, in violation of Articles 86, 90, 91, and 128, Uniform

Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 886,

990, 991, and 928 (2000), respectively.   He was sentenced to

confinement for five months and a bad conduct discharge.    The

military judge awarded 32 days of credit for Appellant’s

pretrial confinement.   In accordance with the pretrial

agreement, the convening authority approved only 135 days of

confinement and the punitive discharge, and waived the automatic

forfeitures, directing payment to Appellant’s children.    The

Court of Criminal Appeals affirmed the findings and sentence in

an unpublished opinion.   United States v. Felder, ARMY No.

20021011 (A. Ct. Crim. App. July 22, 2003).

     This Court granted review of the following issue:

     WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY
     SUMMARILY AFFIRMING APPELLANT’S CONVICTION WHERE THE
     MILITARY JUDGE FAILED TO DISCUSS ANY OF THE PROVISIONS
     OF THE PRETRIAL AGREEMENT WITH APPELLANT PRIOR TO
     ACCEPTING HIS PLEAS, IN VIOLATION OF THIS COURT’S
     HOLDINGS IN UNITED STATES V. GREEN, 1 M.J. 453 (C.M.A.
     1976) AND UNITED STATES V. KING, 3 M.J. 458 (C.M.A.
     1977).


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                            BACKGROUND

     Before accepting Appellant’s guilty plea, the military

judge conducted the providence inquiry required by United States

v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).    The judge’s

inquiry into Appellant’s plea agreement did not include an

inquiry into Appellant’s waiver of motions for relief under

Article 13, UCMJ, 10 U.S.C. § 813 (2000).

                            DISCUSSION

     A servicemember’s decision to plead guilty at court-

martial, as well as the plea agreement related to that decision,

have long been the subject of scrutiny by courts and

commentators.   “Because there are potential dangers in the abuse

of this abbreviated method of disposing of charges, a number of

safeguards have been included.”   David A. Schleuter, Military

Criminal Justice 372 (5th   ed. 1999).   This Court has emphasized

the importance of the providence inquiry as it relates to guilt

or innocence, see Article 45, UCMJ, 10 U.S.C. § 845 (2000); Rule

for Court-Martial 910(c)-(e) [hereinafter R.C.M.]; Care, 18

C.M.A. at 541-42, 40 C.M.R. at 253-54, and that portion of the

inquiry relating to the critical role that a military judge and

counsel must play to ensure that the record reflects a clear,

shared understanding of the terms of any pretrial agreement

between the accused and the convening authority.    R.C.M. 910(f);



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United States v. King, 3 M.J. 458 (C.M.A. 1977); United States

v. Green, 1 M.J. 453 (C.M.A. 1976).    Likewise, we have not

hesitated to examine the provisions of such an agreement,

particularly when they purport to waive the accused’s right to

trial.   “Let there be no mistake, however:   we will continue to

strike hard where the circumstances describe a command-sponsored

clause which would violate the institutional safeguards an

accused has under the Uniform Code of Military Justice.”    United

States v. Jones, 23 M.J. 305, 308 (C.M.A. 1987).    It is

paramount that we ensure there is a knowing, voluntary plea and

that the “accused understands the agreement” and the “terms” of

that agreement.   R.C.M. 910(f)(4).

     In the instant case, the military judge’s inquiry into

Appellant’s pretrial agreement, including the judge’s failure to

assess Appellant’s “Article 13 and restriction tantamount to

confinement” waiver, fell short of that required by R.C.M.

910(f)(4) and United States v. McFadyen, 51 M.J. 289 (C.A.A.F.

1999).   Although these deficiencies constitute legal error, for

the reasons set forth below, we affirm the decision of the Court

of Criminal Appeals.

     R.C.M. 910(f) is designed to ensure that an accused knows

the terms of the pretrial agreement.   The accused must know and

understand not only the agreement’s impact on the charges and

specifications which bear on the plea, the limitation on the


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sentence, but also other terms of the agreement, including

consequences of future misconduct or waiver of various rights.

As to the latter, in McFadyen, we required that

     where a military judge is faced with a pretrial
     agreement that contains an Article 13 waiver, the
     judge should inquire into the circumstances of the
     pretrial confinement and the voluntariness of the
     waiver, and ensure that the accused understands the
     remedy to which he would be entitled if he made a
     successful motion.

51 M.J. at 291.

     In his pretrial agreement, Appellant promised to enter into

a stipulation of fact, request trial by judge alone, use

stipulations in lieu of personal appearance by witnesses not

located at Fort Bragg, and waive motions for sentence credit

based on “Article 13 and restriction tantamount to confinement.”

Appellant made these promises in exchange for a limitation on

the sentence.    The agreement also provided four grounds for

permissive cancellation:   (1) modification of the stipulation

without Appellant’s consent; (2) withdrawal from the agreement

by Appellant prior to his pleas being accepted by the military

judge; (3) Appellant’s failure to fulfill any material promise

in the agreement; and (4) disagreement as to a material term in

the agreement.    The agreement itself contains no impermissible

terms.   R.C.M. 705(c)(1)(B); see, e.g., United States v.

Cummings, 17 C.M.A. 376, 38 C.M.R. 174 (1968)(error to waive due

process).


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     In separate inquiries, the military judge ensured that

Appellant’s choice of forum and entry into a stipulation of fact

were knowing and voluntary, and Appellant has not asserted

otherwise.   Appellant offered no stipulations of expected

testimony and has not averred that he would have done

differently had his pretrial agreement not contained this

provision.   The stipulation of fact was not modified without

Appellant’s consent, Appellant did not attempt to withdraw from

the agreement, he did not fail to fulfill any material promise

contained in the agreement, nor has there been any disagreement

regarding a material term of the agreement.   Appellant’s defense

counsel informed the military judge on the record that Appellant

had not been punished in any way cognizable under Article 13 and

did not raise the issue in his R.C.M. 1105 matters.   In

McFadyen, we specifically recognized waiver of Article 13

motions as a permissible plea agreement term.

     Finally, we note that the convening authority’s action

complies with the agreement.   In sum, there is no evidence or

representation before this Court that Appellant misunderstood

the terms of his agreement, that the operation of any term was

frustrated, that Appellant’s participation in the agreement was

anything other than wholly voluntary, or that he was subject to

illegal punishment or restriction tantamount to confinement.




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     R.C.M. 910(f) requires a meaningful inquiry into the

provisions of every pretrial agreement, and McFadyen, 51 M.J. at

291, requires an “inquiry into the circumstances of the pretrial

confinement and the voluntariness of the waiver.”   Nevertheless,

nothing in that decision relieves an appellant of his burden

under Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000), to

demonstrate material prejudice to a substantial right.   Thus,

while the military judge’s failure to inquire into the “Article

13 and restriction tantamount to confinement” provision of

Appellant’s pretrial agreement was error, Appellant has neither

averred nor demonstrated any prejudice resulting from this

error.   See Article 59(a).

                              CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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