United States v. Onan

OPINION OF THE COURT CLAUSEN, Chief Judge: Appellant was arraigned at an Article 39(a)1 session held on 13 July 1977, at [510] which time he entered pleas of not guilty to the charges against him. The trial was then recessed until 9 August 1977. At the resumed session of the trial, the military' judge asked whether the defense counsel had gone over with his client all of his rights. The defense counsel responded in the affirmative and then offered Appellate Exhibit III, a document captioned, “Rights Understanding.” This document is the first of three forms which were stipulated into evidence, whose use appellant now contends deprived him of a fair trial. Appellate Exhibit III was the only challenged form to be offered while the proceedings were in the posture of a contested case and by its language is descriptive of the rights enjoyed by accused persons in both contested and uncontested cases.2 After receipt of this form, the military judge noted that the case was contested and stated, “So today we can proceed to evidence.” At this point, the defense counsel announced that appellant desired to change his plea and, speaking for appellant, entered pleas of guilty to the Charge and specifications. The military judge questioned appellant and both counsel in detail as to whether there was a guilty plea agreement in the case. All parties responded in the negative and the defense counsel offered Appellate Exhibit IV, a form captioned, “Stipulation Showing Lack of Pretrial Agreement.”3 This is the second form about which appellant now complains. The military judge then began his inquiry into the providence of the plea by describing the rights which appellant waived by a plea of guilty. After appellant expressed his desire to waive his rights, the defense counsel stated that “at this time perhaps it would be appropriate to introduce a document encompassing many of the things you have just gone over with the accused.” The defense counsel then introduced Appellate Exhibit V, captioned, “Waiver of Rights in Guilty Plea Cases,” the third of the challenged forms to be used during the trial.4 [511] Thereafter, the military judge completed the Care5 inquiry, accepted appellant’s pleas as provident, and entered findings of guilty. Appellant now asserts that, inasmuch as the trial defense counsel had prepared these forms prior to trial, we should infer that appellant was required to execute these waivers and stipulations as conditions of his pleas of guilty.6 He contends that these documents not only contain provisions that are themselves erroneous and unfair, but also amount to a de facto pretrial agreement between appellant and the military judge. Dealing with the last contention first, we disagree with the contention that there was a de facto pretrial agreement in effect in this case. All parties to the trial stated on the record that no agreements of any kind existed in the case, and the trial defense counsel stated that he had had no discussions with the military judge concerning possible sentences or other aspects of the case. Finally, appellant stated that he understood that he could be sentenced to the maximum punishment. There is no evidence before this Court suggesting that any of these on-the-record statements were in fact untrue, and appellant concedes that the record does not demonstrate that his failure to sign these forms would have caused the military judge to reject his pleas. While it is conceivable that the military judge anticipated or desired the use of the forms in question, we have found no indications that the military judge required their use or conferred any benefit on appellant as a result. This Court understands that an independent judicial officer, striving to insure that accused persons understand their rights, may evolve certain procedures aimed at attaining that goal. Although a judge may inform counsel that he expects the devised procedure to be followed, and while counsel who appear before that judge on a daily basis may become accustomed to following that procedure is a matter of routine, the procedure does not rise to the level of a pretrial agreement unless it appears that its use has become a condition precedent to receipt of some benefit by the accused. Although we decide that there was no de facto pretrial agreement in the case at bar, we must also resolve the issue of whether appellant was deprived of a fair trial or a meaningful appeal by use of the forms in question. The challenged provisions of the exhibits in question fall generally into two categories: statements purporting to restrict the posttrial use of evidence in connection with matters which could have been litigated at trial; and statements that appellant’s guilty pleas waived certain procedural and substantive rights. With regard to the first category, the review of records of trial by this Court requires the weighing of the evidence and a determination of whether the accused’s guilt has been established beyond a reasonable doubt. See Article 66, UCMJ. Although this review is normally limited to matters contained within the record,7 there may be instances when we must consider factual allegations submitted by the parties after the trial. Whenever it would be appropriate and legally permissible for us to consider affidavits or other matters from outside the record of trial, it is not permissible for the parties to seek to limit our consideration of such matters. Accordingly, to the extent that any provision of Appellate Exhibits III, IV or V attempts to [512] restrict the submission by the parties or use by this Court of matters otherwise properly admissible, they are hereby declared void. Likewise, any attempt to prevent this Court from, in an appropriate case, “going behind” stipulated facts is a nullity. We decide, however, that there has been no prejudice caused to appellant by these invalid provisions. The tenor of the challenged language was not to prevent appellant ever from raising complaints or presenting evidence, but to encourage him to do so on the record at trial. Appellant does not contend that he has been prevented from submitting any such matters, either at trial or on appeal. Indeed, appellant has asserted the existence of a de facto pretrial agreement, contrary to the terms of Appellate Exhibit IV, and has made complaints about his trial of which he had knowledge at the time, contrary to the terms of Appellate Exhibit III. As we have considered all of his contentions, in disregard of the restrictions purportedly created by these Appellate Exhibits, we have returned appellant to the position he would have held if these forms had never been used. No other remedy is necessary. With regard to the second category of provisions challenged by appellant, we note first that the right against self-incrimination is not given up forever by a plea of guilty. This privilege is given up only as to the merits of the case. As to all other proceedings, the accused retains his privi-. lege against self-incrimination. While the contrary implication in Appellate Exhibit V is technically incorrect, we do not find that appellant was thereby misled. The military judge correctly advised appellant of his rights to allocution under paragraph 53h, Manual for Courts-Martial, United States, 1969 (Revised edition), including his right to remain silent, and appellant thereafter made an unsworn statement in extenuation and mitigation. As it appears that the parties interpreted the language concerning waiver of the privilege against self-incrimination as applying only to the trial on the merits, we find that appellant was not prejudiced. Appellant now contends that he was denied a fair trial by language in Appellate Exhibit V that he gave up forever any motions to suppress any evidence or pretrial statements. Although appellant stated on the record that he had not been compelled to give up any motions,8 he now asserts that this exhibit constituted not only a waiver of motions, but also a waiver of any objections to the improper use of evidence at any stage in the trial. We disagree with appellant’s interpretation. We construe the language concerning waiver of motions as amplifying the previous sentence in Appellate .Exhibit V that, “appellate courts have held . that a plea of guilty waives and gives up certain motions and certain objections to evidence.” This provision imports no more than that a voluntary and informed plea of guilty waives an appellant’s right to challenge on appeal the propriety of a judge’s ruling admitting evidence that may have been illegally obtained. We find no reasonable possibility that appellant was misled as to what was waived by his pleas of guilty. Appellant also attacks the provisions of Appellate Exhibit V to the effect that he disavowed all defenses. We note that appellant stated on the record that he had not been compelled to give up any defenses. A plea of guilty, however, cannot be accepted [513] where the accused asserts a defense at trial, Article 45(a), UCMJ. See also United States v. Timmins, 21 U.S.C.M.A. 475, 45 C.M.R. 249 (1972). The language in question did no more than what was required for entry of a provident plea. Its inclusion in Appellate Exhibit V does not call the providence of the pleas into question. Only one other matter warrants discussion. Appellant asserts that the military judge should have made a detailed inquiry into appellant’s understanding of the contents of Appellate Exhibits III, IV, and V prior to receiving them into evidence by stipulation. We hold that the stipulations in question were properly received. Paragraph 154b (1), MCM, 1969 (Rev.), states that a stipulation should not be received in evidence if any doubt exists as to the accused’s understanding of what is involved. In the case of each of these exhibits, the military judge asked appellant if he concurred in the stipulation and received an affirmative reply. Many of the matters contained in the exhibits were the subject of independent inquiry by the judge. In the case of Appellate Exhibit III, appellant stated that he understood everything therein. In the case of Appellate Exhibit V, appellant stated that he had gone over every entry therein, had discussed each paragraph with his attorney, and understood everything. We decline appellant’s invitation to extend the holding of United States v. Bertelson, 3 M.J. 314 (C.M.A.1977), to nonconfessional stipulations in guilty plea cases, The remaining assignments of error do not warrant discussion. The findings of guilty and the sentence are AFFIRMED. Senior Judge CARNE concurs. Footnotes [1] Article 39(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 839(a). [2] The “Rights Understanding” form contains recitals that the accused understands his rights to counsel and describes various procedural aspects of military law, including his options as to trial by a court with members or by judge alone, his rights in extenuation and mitigation, and certain of his appellate rights. Appellant specifically complains of the following provisions of this form: Whenever I do not raise any complaint before the military judge of which I have knowledge, I understand by my silence that I forever waive and give up any such com- . plaint which I might have; (i) I understand that ... if I have evidence which I do not use [during my trial], I am forever barred in the future from using that evidence. [3] This exhibit, unlike the other two involved in this case, was typewritten and was not a preprinted form. After stating that no pretrial agreements of any sort were in effect, the stipulation continued: Both sides stipulate that the facts contained in this stipulation of fact are conclusively determined; no appellate authorities shall ■ seek to go behind these facts; and no affidavits, letters, or any other extra-record matters made subsequent to the date of this stipulation shall ever be used to contradict the terms and facts contained in this stipulation of fact. [4] The waiver of rights form contains the following language: g) I know that I have the following rights, and consciously, intelligently and voluntarily give them up forever knowing that a waiver means these rights which follow vanish, they disappear, they can never be exercised by me again, and that they are exhausted: I hereby give up forever my right against self-incrimination, that is the right to say nothing at all; I hereby give up forever some of my appellate rights. I understand that the appellate courts have held in decisional law that a plea of guilty waives and gives up certain motions and certain objections to evidence; I hereby give up forever any motion to suppress any evidence; I hereby give up forever any motion to suppress any pretrial statements; I hereby disavow all defenses of any nature. I have discussed all possible defenses with my trial defense attorney, I understand them, and I consciously, intelligently and voluntarily disavow each and every one of them. [5] United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). [6] Counsel have not addressed the fact that Appellate Exhibit III was introduced while the proceedings at trial were in the posture of a contested case. [7] United States v. Bethea, 22 U.S.C.M.A. 223, 46 C.M.R. 223 (1973). [8] The providence inquiry in this case included a discussion concerning the possible merits of any suppression motions. It appears from that discussion that any suppression motions were foregone because of an unlikelihood of success. We do not encourage trial judges routinely to inquire into the possible merits of any motions, as this area is one best left between the defense counsel and the accused.