United States v. Feely

Opinion of the Court Darden, Judge: An apparent misunderstanding or misinterpretation of instructions from the individual (civilian) defense counsel by the appointed military defense counsel about the terms of a pretrial agreement by the accused to plead guilty is the principal object of deci [153] sion in this case. A related consideration is whether the plea of guilty was made improvident because the law officer did not personally explain the elements of the offense. The accused was charged with stealing a tape recorder, an electric razor, and Military Payment Certificates from fellow Marines in a combat zone in Vietnam during December 1967. An appointed defense counsel, a Marine Corps Captain qualified as a lawyer in accordance with military law, represented him at the pretrial investigation. This military counsel wrote to the father of the accused to inform him of the charges. Promptly he received notice that a civilian attorney, an associate of the father of the accused, would represent the accused if his case should be referred to trial. Several exchanges of correspondence between the military counsel in Vietnam and the civilian in Boston then followed. Quoting the correspondence in extenso would serve no useful purpose at this point. In his correspondence the civilian counsel expressed his hope for a pretrial agreement involving a sentence providing for some confinement and loss of pay but excluding a bad-conduct discharge, or providing for the immediate remission of the discharge at the time the convening authority acted. The original date for the trial was postponed during this correspondence. The military counsel attempted to secure agreement to the immediate remission of any bad-conduct discharge that might be awarded; -the convening authority would agree only to suspend a bad-conduct discharge if the court awarded one. The military counsel then discussed the situation with the accused. Later we will refer to a conflict in evidence about what the counsel told the accused about the desires of the civilian counsel and about the contents of the correspondence from him. For now it is enough to note that after this conversation the military counsel submitted an offer of a pretrial agreement that his client would plead guilty in return for an agreement by the convening authority to approve.a sentence not exceeding reduction in grade, confinement at hard labor for eight months, with any excess suspended for the period of confinement and six months thereafter, forfeitures as awarded, with the period of forfeitures for more than eight months suspended for the period of confinement and six months thereafter, and a bad-conduct discharge, suspended for the period of confinement and six months thereafter. At the trial on April 29, 1968, the accused pleaded guilty in accordance with his agreement. The sentence as approved by the convening authority was in accordance with the terms of the agreement. The then Navy board of review reviewed the record of trial and affirmed the findings of guilty and the sentence. This Court then granted an unopposed motion to remand the case to the bdard in order that the civilian counsel have an opportunity to appear before the board to argue that the plea was improvidently entered. After such remand and argument the board adhered to its original decision that affirmed the findings and the sentence. Among other things the board considered affidavits by the accused and by the military counsel that weré in sharp conflict on what the accused was informed about his civilian counsel’s desires during the conference that resulted in the decision to proceed with the pretrial agreement and a guilty plea. In the exercise of its fact-finding power the board gave more weight to the military counsel’s affidavit than to that of the accused. In its opinion the board commented on the difficulty of securing remission or suspension of a discharge for members of the armed forces found guilty of larcenies and the board concluded that the military counsel had followed the desires of the accused and had obtained a favorable sentence. The board was convinced by the military counsel’s affidavit that he believed he and the civilian counsel were in agreement on the terms of a pretrial agreement and that he acted in good faith upon that assumption; The board thought the correspondence [154] from the civilian counsel was so phrased that the agreement proffered effected his desired result. Article 38(b) of the Uniform Code of Military Justice and paragraph 48a., Manual for Courts-Martial, United States, 1951, provide that if the accused has counsel of his own selection, the appointed military defense counsel may act as his associate counsel, if the accused so desires; if the accused does not so desire, the president of the court must excuse the military defense counsel. But the decision to plead guilty, and determination of the circumstances in which such a plea will be entered, must still be made by the accused. Indeed in United States v Donohew, 18 USCMA 149, 39 CMR 149, this Court has indicated the necessity for responses by the accused, not his counsel, to questions about his understanding of his choices of counsel. Similarly in United States v Care, 18 USCMA 535, 40 CMR 247, the Court declared the necessity for a personal interpretation from the accused about the factual basis for his guilt and about his understanding of the elements of the offenses with which he is charged. It would appear that the Court was retreating from the holdings in those cases if we were to decide that an accused could not plead guilty after his options were explained to him. In this case there is a controversy over whether the accused was fully informed of the recommendations by his civilian counsel but the fact-finding instrumentality has resolved this issue against him. We have no reason to overturn the board’s finding. The accused is now in precisely the same status he would have enjoyed had the bad-conduct discharge been remitted immediately by the convening authority instead of its being suspended for the period of confinement and the following six months. From the information in this record it appears that the period of suspension necessarily terminated before June 29, 1969. The Court was informed that the accused was released from active duty as a Lance Corporal and transferred to the Marine Corps Reserve on July 15, 1969. Hence, it is obvious that the punitive discharge was remitted and that vacation of suspension was never effected. In the absence of immediate remission the accused was required to conduct himself in a manner that would not result in a vacation of suspension, but any argument that this really prejudiced the accused lacks persuasive force. In short, time has rendered this issue moot. Since the law officer did not personally explain the elements of the offense to the accused, his procedure in examining the accused about the providence of his plea would not meet the standards required by this Court in cases tried thirty days after the decision in United States v Care, supra. In an out-of-court hearing to determine the providence of the plea the law officer did question Corporal Feely extensively about his decision to plead guilty. The accused responded that he knew the elements of the offense to which he pleaded guilty and the military defense counsel responded that he had explained the elements of the offense to the accused. A reading of the record of this out-of-court hearing, together with the testimony of the accused, satisfies us that the plea of the accused was voluntary as discussed in United States v Care, supra. The decision of the board of review is affirmed. Chief Judge Quinn concurs.