United States v. Caruth

OPINION OF THE COURT DeFORD, Judge: The appellant, pursuant to his pleas, was convicted at a bench trial of possession and sale of heroin in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. He was sentenced to a bad-conduct discharge, confinement at hard labor for eight months, forfeiture of $300.00 pay per month for eight months, and reduction to the lowest enlisted grade. The convening authority approved the sentence. Our review of the appellant’s case is pursuant to Article 66, UCMJ. The appellant alleges that his pleas of guilty are improvident because they were the products of coercion and duress that resulted from the military judge’s involvement in the plea bargaining process; because of the ineffective assistance of counsel; and because his pleas were predicated upon a substantial misunderstanding of the maximum imposable sentence. On 21 November 1976, the appellant was arrested for the illegal possession and sale of heroin. On 17 January 1977, the date the case was called for arraignment, the appellant, without the benefit of a pretrial agreement, entered guilty pleas to the charges. Appellant alleges that his decision to plead guilty was the result of an illegal pretrial agreement reached between the military judge and his detailed defense counsel. He alleges that this agreement required him to plead guilty at arraignment, and in return, the judge would sentence him to a bad-conduct discharge and eight months’ confinement. The trial defense counsel states in an affidavit that, a few days prior to the appellant’s trial, he engaged in a discussion with the trial judge concerning the new sentencing practices the judge intended to adopt. He states that the trial judge told him that under his new sentencing policy, it was his intention not to impose more than a bad-conduct discharge and nine months’ confinement for those accused who pleaded guilty at arraignment without a pretrial agreement with the convening authority. The counsel further states that the trial judge’s avowed reasons for initiating this policy were because of the congested state of the trial court’s docket, and because the trial judge’s conclusion that guilty pleas predicated upon pretrial agreements with the convening authority were unsatisfactory due to the length of time it took to negotiate with the convening authority and to obtain his approval of the agreements. Trial defense counsel also states that during the course of the discussion he questioned the trial judge as to what the judge generally believed was an appropriate sentence for the possession of heroin and the sale of heroin, assuming that an accused pleaded guilty. The trial judge allegedly opined that a bad-conduct discharge and six months’ confinement, and a bad-conduct discharge and nine months’ confinement, respectively, would probably be appropriate. From his discussion with the trial judge, the trial defense counsel formed the belief that no agreements per se were being made with the trial judge and that the trial judge was legally free to adjudge a greater or lesser sentence as he deemed appropriate. However, trial defense counsel also formed the belief that based upon his association with the trial judge, and his knowledge of the trial judge’s sentencing philosophy, the sentence which would be adjudged in the appellant’s case would probably not exceed a bad-conduct discharge and nine months’ confinement. The trial defense counsel did not believe that the trial judge would state that he was adopting a general sentencing policy which would limit one’s sentence to nine months and a bad-conduct discharge for pleading guilty at arraignment without a pretrial agreement, and then sentence an accused who pleaded guilty at arraignment without a pretrial agreement to more than nine months’ confinement and a bad-conduct discharge. Following his conversation with the trial judge, trial defense counsel informed the appellant of what the trial judge had said [926] regarding the new sentencing policy. In relating this information to the appellant, trial defense counsel stressed that the trial judge was legally free to impose a greater sentence, and that, in essence, the appellant was throwing himself upon the mercy of the court. However, trial defense counsel also stated that, although there was no guarantee from the trial judge, he was reasonably certain that the appellant’s sentence would not exceed a bad-conduct discharge and nine months’ confinement. In concluding his affidavit, trial defense counsel states that his advice to the appellant to plead guilty was predicated upon his evaluation of the evidence against the appellant and was not a result of his discussion with the trial judge. Trial defense counsel also states that he had arrived at this decision well before his conversation with the trial judge, and as a result, had earlier advised the appellant to seek a pretrial agreement with the convening authority- In his affidavit, the trial judge does not address and consequently refute trial defense counsel’s account of what occurred. He does state without reference to the appellant’s case, that he had never discussed a specific case with any attorney, and that any and all out-of-court discussions between himself and counsel were concerning general principles of law or were philosophical in nature. Since there is no real disagreement as to what was said in the conversation between the trial defense counsel and the trial judge, we will decide the assigned errors without resorting to a limited rehearing. In resolving the appellant’s first contention, we assume, without deciding, that the result of the trial judge’s conversation with trial defense counsel was the perception on the part of trial defense counsel of a tacit limitation on sentencing when an accused enters an unqualified guilty plea.1 We cannot ignore the fact that a trial judge’s influence in plea bargaining negotiations may have a profound effect upon the ability of an accused to make a reasoned choice. United States v. Werker, 535 F.2d 198 (2d Cir. 1976); United States ex rel. Elksnis v. Gilligan, 256 F.Supp. 244 (A.D., N.Y.1966). However, not all judicial participation in plea bargaining is improper or causes a guilty plea to be improvident. United States ex rel. Robinson v. Housewright, 525 F.2d 988 (7th Cir. 1975); Toler v. Wyrick, 430 F.Supp. 545 (E.D.Mo.1977). Thus, the crucial issue to be resolved is whether, under the facts of the case, the plea was voluntarily entered. United States ex rel. Robinson v. Housewright, supra. Using the above authorities as a touchstone, we are of the opinion that the trial judge’s comments concerning his sentencing philosophy were not applicable to any particular pending case and their impact on this case did not cause the appellant’s plea to be involuntary. Initially, we note that the evidence against the appellant was overwhelming. He was arrested immediately after a controlled buy of heroin with a marked twenty-dollar bill in his possession. As trial defense counsel states in his affidavit, it was the evidence against the appellant, and not any discussion with the trial judge, that prompted him to initially advise the appellant to plead guilty. Moreover, the appellant’s case per se was not discussed with the trial judge prior to trial. Consequently, it is extremely unlikely for the judge’s involvement to have been such that it precluded him from making an objective determination of the voluntariness of the appellant’s plea, or that it induced the appellant to plead guilty when he desired to do otherwise.2 Also, as the appellant’s crimes were not complex, and in [927] view of the fact that he was not arraigned until almost two months after his arrest and one month after the completion of the Article 32 investigation, we are of the opinion that trial defense counsel had sufficient time to investigate the charges against the appellant and to generally prepare appellant’s case for trial. Thus, his advice to the appellant to plead guilty was sound and practical under the circumstances. Finally, at the time of his ex parte discussion with the trial judge, trial defense counsel intended to or was in the process of negotiating a pretrial agreement. This indicates to us that the appellant always intended to plead guilty; it was just a question of first obtaining a favorable limitation on sentence.3 Consequently, the fact that the appellant entered his guilty plea to avoid a possibly greater punishment does not alone make his plea involuntary.4 Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Moore v. Swenson, 487 F.2d 1020 (8th Cir. 1973). As the Court in Brady stated at page 755, 90 S.Ct. at page 1472: “ ‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e. g., bribes).’ ” Utilizing this standard and the guidelines enunciated in Robinson v. Housewright and Toler v. Wyrick, both supra, we conclude that the military judge’s participation, such as it may have been, did not coerce the appellant into pleading guilty.5 Therefore, from that aspect, we find the appellant’s plea to have been providently entered. The appellant’s second contention is that his plea is improvident because he was denied effective assistance of counsel by reason of the fact that his counsel chose to plead him guilty when his counsel knew that a bad-conduct discharge would be imposed as part of the sentence, and because his counsel failed to present favorable evidence during the presentencing portion of the trial. Our reading of trial defense counsel’s affidavit indicates to us that he was under the impression that the appellant’s sentence would probably not “exceed” nine months’ confinement at hard labor and a bad-conduct discharge. No where does he state that he knew with certainty that the trial judge intended to sentence the appellant to a bad-conduct discharge. Counsel’s opinion of the probable results of trial is always a factor in the form of his advice to his client. Counsel is required to be realistic. The fact that appellant’s trial defense counsel believed a bad-conduct discharge would probably be adjudged in this case only exemplifies that he possessed a realistic view of the possible consequences of appellant’s act. We believe such views were warranted under the facts of this case notwithstanding any possible objective and subjective manifestations concerning sentence by the military judge. Turning to the remaining aspect of the appellant’s contention, we agree that his defense counsel was remiss in not presenting certain favorable evidence dur [928] ing extenuation and mitigation.6 This failure, though, does not affect the providency of the appellant’s plea. United States v. Brooks, 19 U.S.C.M.A. 35, 41 C.M.R. 35 (1969). We will reassess the sentence in order to purge any possible prejudice which may have resulted from this omission. The appellant’s final allegation of error is that his plea is improvident because it was predicated upon a substantial misunderstanding of the maximum imposable sentence. The record shows that prior to entering his pleas, and during the providency inquiry itself, the appellant was aware of the fact that the maximum imposable sentence to confinement could be two years instead of ten. After much discussion on the issue, the military judge asked the appellant: Now, even though the confinement portion is up in the air, are you still willing to plead guilty because you are guilty? The appellant responded in the affirmative. From these facts, it is obvious that the appellant was still willing to plead guilty without regard to the ultimate decision as to the legal maximum confinement. Under these circumstances, he cannot now reasonably argue that he entered into his pleas of guilty while suffering under a substantial misunderstanding of the maximum imposable sentence. United States v. Frangoules, 24 U.S.C.M.A. 317, 52 C.M.R. 28, 1 M.J. 467 (1976). However, because the military judge imposed sentence based upon the ten year confinement maximum instead of the two year limitation, United States v. Jackson, 3 M.J. 101 (C.M.A.1977), we will reassess the sentence. United States v. Frangoules, supra. The findings of guilty are affirmed. Reassessing the sentence on the basis of the above-indicated errors and the entire record, the sentence is affirmed. Under the circumstances of this case the sentence adjudged was appropriate for the offenses committed. We do not believe the misunderstanding as to punishment affected the sentence imposed. Chief Judge CLAUSEN, Senior Judges CARNE, JONES and CLAUSE, and Judges MITCHELL, DRIBBEN, and TALIAFERRO, concur. Judge FELDER concurs in the result. Footnotes [1] We find the dictates of United States v. Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976), and United States v. King, 3 M.J. 458 (C.M.A.1977), to be inapplicable to the present case as we find as a matter of fact, that a pretrial agreement was not consummated in this case. [2] In none of the documents filed before this Court has the appellant alleged that he desired to plead not guilty at trial. [3] Trial defense counsel’s principal concern and responsibility was to obtain the lightest possible sentence for his client. His advice to his client was designed to achieve that result. [4] In his affidavit, trial defense counsel states that in heroin possession cases, the convening authority usually agreed to disapprove that part of the sentence adjudged which was in excess of a dishonorable discharge and 12 to 13 months confinement; for heroin sale cases, it was that part of the sentence adjudged which was in excess of a dishonorable discharge and 18 to 24 months confinement. [5] Although we have determined that the military judge’s statements in this case did not affect the appellant’s plea, we would caution all trial judges that this practice is fraught with danger and should be avoided. See American Bar Association Standards, Pleas of Guilty, Section 3.3(a) (1968). See also United States v. Werker, 535 F.2d 198 (2d Cir. 1976). [6] Subsequent to the appellant’s arrest, he furnished the military authorities with information concerning other drug sellers and users in the battalion. Whether the failure to present the foregoing evidence to the court was the result of a tactical decision, or simply due to inadvertence, we cannot determine. However, it does serve to highlight one of the dangers associated with a trial judge’s participation in the plea bargaining process, viz., the possible failure of the trial defense counsel to present favorable extenuation and’mitigation evidence because of his belief that it would be a futile effort since the judge has already determined what he believes to be an appropriate sentence for the offense(s). See footnote 5, supra.