United States v. Jacox

GREGORY, Judge: Pursuant to his pleas, appellant stands convicted of three periods of unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. He was sentenced to a bad-conduct discharge, confinement at hard labor for 45 days, and forfeiture of $75.00 pay per month for 4 months. Intermediate reviewing authorities have approved the sentence without modification or suspension. I Appellant negotiated a pretrial agreement which provided that an adjudged bad-conduct discharge and any adjudged confinement at hard labor in excess of 30 days would be suspended on probation by the convening authority. The pretrial agreement also included the following provision: That it is expressly understood that I will not commit any act or (sic) misconduct punishable under any article of the Uniform Code of Military Justice between the date of trial and the date of the convening authority’s action. Any such misconduct will void the provisions of this agreement concerning the maximum sentence to be approved and authorize the convening authority to approve any sentence adjudged or portion thereof. The action of the convening authority indicates that appellant absented himself without authority on two occasions after trial and prior to the convening authority taking his action. For this reason, the convening authority considered the sentence provisions of the pretrial agreement to be null and void, did not honor the terms of the agreement, and approved the sentence as adjudged. On appeal, appellant argues that this provision, relieving the convening authority from honoring the terms of the pretrial agreement, was void as against public policy and that this Court must now give effect to the pretrial agreement by suspending the bad-conduct discharge and the confinement in excess of 30 days.1 See United States v. Cox, 22 U.S.C.M.A. 69, 46 C.M.R. 69 (1972); United States v. Lanzer, 3 M.J. 60, n. 4 (C.M.A.1977). In support of his contention, appellant relies on the opinions of Judge Baum in United States v. Johnson, 54 C.M.R. 435 (Interim), 2 M.J. 600 (N.C.M.R. 1976), and United States v. Dugger, 54 C.M.R. 657 (Interim), 1 M.J. 1069 (N.C.M.R. 1976) . In Johnson and Dugger, Judge Baum found the type of pretrial agreement provision at issue in this case to be against public policy and an attempt to create a probationary status beyond the power of the convening authority. Although these views of Judge Baum merit close consideration, they represent a minority view of this Court. Senior Judge Dunbar and the author judge have previously found this type of provision not to be contrary to public policy. United States v. Ping, No. 77 0244 (N.C.M.R. 29 April 1977), and United States v. Whitson, No. 77 0158 (N.C.M.R. 19 April 1977). We believe the prior decisions of this Court which have upheld the legality of similar pretrial agreement provisions set forth a correct statement of the law. See United States v. Bigler, 50 C.M.R. 818 (N.C.M.R. 1975); United States v. Conticchio, No. 76 1362 (N.C.M.R. 23 September 1976), pet. denied, No. 33,521 (U.S.C.M.A. 11 February 1977) ; United States v. Johnson, supra, (separate opinions of Chief Judge Cedar-burg and Judge Glasgow). We also believe this type of provision has been at least implicitly approved by the Court of Military Appeals. See United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975); United States v. Lanzer, supra. [533] In summary, we find this provision to have been a valid inclusion in the pretrial agreement in this case and the convening authority not to have erred in applying it in taking his action. II Since the convening authority’s action approving the entire term of 45-days confinement was taken 58 days after trial, while the pretrial agreement would have provided for suspension of confinement in excess of 30 days, we requested additional information to determine whether appellant may have been forced to serve a period of illegal confinement. The information provided reveals that appellant was released after serving 30-days confinement, immediately commenced an unauthorized absence of approximately 4 days, returned to military jurisdiction for approximately 6 days, and then commenced another unauthorized absence of 80 days, during which time the convening authority took his action. Following his return from this second unauthorized absence, appellant was reconfined for a period of 15 days, supposedly to serve the remaining portion of his approved sentence. Appellant did not request deferment of his confinement. For this reason, the period of confinement continued to run its course during those periods when the appellant was not an unauthorized absentee. See paragraph 97c, MCM, 1969 (Rev.). It would appear that appellant also would have been entitled to 5 days “good-conduct time” for the initial portion of his confinement served. See Department of the Navy Corrections Manual, SECNAVINST 1640.9. Without getting into nice calculations concerning this “good-conduct time” and the number of days appellant was present for duty between his two post-trial unauthorized absences, it appears that appellant was forced to serve approximately 10 days illegal confinement when he returned after his second absence. The Government has conceded as much, and we concur. In view of the illegal confinement of appellant, we will adjust the sentence. The entire term of confinement has been served. Despite appellant’s contention that such adjustment must now relate to the bad-conduct discharge, we believe the relief granted can also relate to the forfeitures and will take action in that manner. Ill During oral argument, appellate defense counsel contended that the military judge’s inquiry into the terms of the pretrial agreement was inadequate. See 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). We do not agree. The military judge’s inquiry established that appellant understood the sentence limitations and the meaning and effect of each condition in the agreement, including that pertaining to the effect of post-trial misconduct. (R. 20 — 23, 35-36). As previously noted, we do not find such a condition to violate public policy. The military judge’s inquiry also established that the written agreement constituted the full understanding of all parties. We find no reason to question the providency of appellant’s guilty pleas. IY Also during oral argument, appellate defense counsel noted that evidence of three prior nonjudicial punishments was received as matter in aggravation during the presentencing proceedings. Assuming, without deciding, that the decision in United States v. Booker, 5 M.J. 238 (C.M.A. 1977), is retroactive and renders evidence of imposition of the punishments inadmissible because the record does not establish that the accused had an opportunity to consult with counsel prior to accepting nonjudicial punishment on any of these occasions, we test for prejudice and find none. Considering the entire record, including the minor nature of the offenses for which the prior nonjudicial punishments were imposed, we find no fair risk that the Court was influenced to impose a more severe sentence than it otherwise would have. Cf. [534] United States v. Martinez, 3 M.J. 600 (N.C.M.R.1977), pet. granted, 3 M.J. 258 (C.M.A. 1977). Accordingly, in light of the previously discussed illegal confinement of appellant, the findings of guilty and only so much of the sentence approved on review below as provides for a bad-conduct discharge and confinement at hard labor for 45 days are affirmed. Footnotes [1] As noted in Section II of this opinion, infra, appellant has already served the entire term of adjudged confinement.