United States v. Lieutenant Colonel NORMAN R. BREHM

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before SULLIVAN, COOK, and BAIME Appellate Military Judges UNITED STATES, Appellee v. Lieutenant Colonel NORMAN R. BREHM United States Army, Appellant ARMY 20070688 Headquarters, United States Army Armor Center and Fort Knox Richard Anderson, Military Judge Colonel Lisa Anderson-Lloyd, Staff Judge Advocate For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley M. Voorhees, JA; Captain Melissa E. GoforthKoenig, JA (on petition). Major Teresa L. Raymond, JA; Captain Melissa E. Goforth-Koenig, JA (on brief). For Appellee: Colonel Denise R. Lind, JA; Captain Philip M. Staten, JA; Captain Stephanie R. Cooper, JA (on answer to petition). Lieutenant Colonel Francis C. Kiley, JA (on brief). 13 May 2009 -------------------------------------------------- SUMMARY DISPOSITION ON REMAND -------------------------------------------------- Per Curiam: This case was originally submitted to this court for review under Article 66, Uniform Code of Military Justice, 10 U.S.C. §866 [hereinafter UCMJ] on its merits with appellant, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), asserting ineffective assistance of counsel. We summarily affirmed the findings and the sentence. United States v. Brehm, ARMY 20070688 (Army. Ct. Crim. App. 24 Jun 2008) (unpub.). On 14 January 2009, our superior court granted appellant’s petition for grant of review and returned the case to this court for further appellate inquiry. United States v. Brehm, No. 20070688 (C.A.A.F. 14 Jan. 2009) (order) (unpub.).( Appellant pled guilty, inter alia, to indecent liberties with a child during calendar year 1999 (Specification 1 of Charge I); the charge sheet, however, was not forwarded until October 17, 2006. Appellant entered his pleas after our opinion in United States v. Lopez de Victoria, in which we held the statute of limitations at Article 43, UCMJ, was extended in 2003 and acted to extend offenses for which the statute of limitations had not yet expired in 2003, as is appellant’s case. Id., 65 M.J. 521 (Army Ct. Crim. App. 2007). Based on our opinion, appellant was advised by his trial defense counsel there was no statute of limitations defense available and, accordingly, nothing for appellant to waive by his guilty plea. Although the military judge conducted an extensive colloquy with appellant and trial defense counsel on appellant’s waiver of any hypothetical ruling by the Court of Appeals for the Armed Forces (CAAF) contrary to that of the Army court, the various affidavits presented to this court demonstrate ongoing confusion over the effect of appellant’s “waiver.” We would have less concern with a bargained-for waiver of a hypothetical future defense in exchange for a pretrial agreement with the convening authority, in which presumably the terms would be clear. See United States v. Troxell, 12 U.S.C.M.A. 6 , 30 C.M.R. 6 (C.M.A. 1960); United States v. Wesley, 19 M.J. 534 (N.C.M.R. 1984); United States v. Clemens, 4 M.J. 791 (N.C.M.R. 1978), pet. denied, 5 M.J. 207 (C.M.A. 1978) (waiver of statute of limitations in pretrial agreement is not contrary to public policy). That, however, is not the case here: appellant’s pretrial agreement contained no provision for waiver of statute of limitations if the CAAF were to reverse our opinion, as it did, and rule the statute of limitations was not retroactively extended in 2003. See United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008). The military judge exceeded his authority by essentially adding a term, i.e., waiver of a potential statute of limitations defense, to appellant’s pretrial agreement with the convening authority. See generally United States v. Partin, 7 M.J. 409, 412 (C.M.A. 1979) (A military judge’s “authority cannot be said to extend to the addition by implication of terms not embraced in the express wording of the [pretrial] agreement. . . .”). Since appellant now has a defense of statute of limitations which he will presumably raise as a bar to further prosecution on the affected offense, in the interest of judicial economy we set aside the findings of guilty to and dismiss Specification 1 of Charge I and Charge I and set aside the sentence. The remaining findings of guilty are affirmed. We cannot be reasonably certain what sentence might have been adjudged and approved for the remaining offense. See United States v. Sales, 22 M.J. 305 (C.M.A. 1986); see also United States v. Moffeit, 63 M.J. 40, 43 (C.A.A.F. 2006) (Baker, J., concurring) (“the penalty landscape” has changed). Accordingly, the sentence is set aside. The record of trial is returned to the Judge Advocate General for submission to the same or a different convening authority for a sentence rehearing on the remaining findings of guilty. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court ( Petition was granted on an assigned issue and a specified issue: (continued. . .) (. . . continued) WHETHER IN LIGHT OF THE COURT’S RECENT RULING IN UNITED STATES V. LOPEZ DE VICTORIA, 66 M.J. 67 (C.A.A.F. 2008) SPECIFICATION 1 OF CHARGE I, INDECENT LIBERTIES WITH A CHILD, SHOULD BE DISMISSED AS BEING TIME BARRED UNDER THE STATUTE OF LIMITATIONS; WHETHER THE TRIAL DEFENSE COUNSEL PROVIDED EFFECTIVE ASSISTANCE OF COUNSEL AS TO THE ISSUE OF WAIVER OF THE STATUTE OF LIMITATIONS REGARDING SPECIFICATION 1 OF CHARGE I, INDECENT LIBERTIES WITH A CHILD.