States v. Miller

ROOT, Judge: Appellant urges two errors, to wit: I BECAUSE THE MILITARY JUDGE FAILED TO INQUIRE INTO APPELLANT’S AND COUNSEL’S UNDERSTANDING OF THE CONDITION OF THE PRETRIAL AGREEMENT WHICH PERMITTED SUBSEQUENT ADMINISTRATIVE DISCHARGE PROCESSING APPELLANT’S PLEAS WERE IMPROVIDENT UNDER THE MANDATE OF UNITED STATES V. GREEN, 1 M.J. 453 (C.M.A.1976). SEE UNITED STATES V. THOMAS, NO. 76 0618 (N.C.M.R. 25 JULY 1978). II BECAUSE APPELLANT DID NOT SUBMIT HIS REQUEST TO BE TRIED BY A MILITARY JUDGE UNTIL AFTER FINDINGS {SEE R.16), THE COURT-MARTIAL LACKED JURISDICTION. UNITED STATES V. FIFE, 20 U.S.C.M.A. 218, 43 C.M.R. 58 (1970). We note at the outset that the second assignment is without merit. Here, [536] the judge accepted appellant’s plea of guilty and entered findings during an Article 39(a) 10 U.S.C. § 839(a) session. Later, but still before assembly of the court, the judge advised appellant of his right to trial by judge alone and approved appellant’s written request for such a trial. The judge then assembled the court and proceeded with the trial. In a previous decision, this Court has held: Article 16, UCMJ authorizes trial by military judge alone “. . .if before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests in writing a court composed only of a military judge and the military judge approves.” The statutory requirements for trial by judge only were met in this case thereby investing jurisdiction in the court-martial. United States v. Cunningham, 6 M.J. 559 (N.C.M.R.1978). Notwithstanding, we think it is better form to determine whether trial will be by military judge alone prior to reaching findings. See Appendix 8, Manual for Courts-Martial, United States, 1969 (Revised edition). The first assignment, however, has merit. The first portion of the pretrial agreement contains the following provision: That my. counsel has fully advised me of the meaning and effect of my guilty plea and that I fully understand and comprehend the meaning thereof and all of its attendant effects and consequences, including the possibility that I may be processed for an administrative discharge, even if part or all of the sentence, including a punitive discharge, is suspended or disapproved pursuant to this agreement. The law is now clear that the military judge is responsible for conducting a full and complete inquiry with the accused concerning any pretrial agreement in existence. United States v. Green, 1 M.J. 453 (C.M.A. 1976); United States v. Elmore, 1 M.J. 262 (C.M.A.1976); United States v. King, 3 M.J. 458 (C.M.A.1977). This Court has held that where the basis of the inducement for an accused’s guilty plea is his desire to avoid a discharge, thereby enabling him to return to duty, and when that intent is frustrated by subsequent administrative discharge proceedings, it cannot be said that the accused’s guilty pleas were truly provident. See United States v. Santos, 4 M.J. 610 (N.C.M.R.1977). Therefore, where the pretrial agreement contains a provision requiring suspension or disapproval of a punitive discharge and also has a provision relating to the possibility of an administrative discharge, the trial judge should discuss the potential administrative discharge with the accused. Failure to do so may result in reversible error. See United States v. Thomas, No. 78 0618 (N.C.M.R. 25 July 1978). In this case, part of the inducement to the accused to plead guilty was the promise of the convening authority to suspend any bad-conduct discharge for a period of one year from the date of the convening authority’s action. Appellate Government Counsel argues that this provision is not a term or condition of the agreement for which appellant bargained and which must be explained by virtue of United States v. Green, supra. She continues: Rather it is a statement of the administrative policy attendant to a record of disciplinary action, action which is distinct from and independent of the pretrial agreement. If appellant had entered into the pretrial agreement without knowledge of this provision, and had based his decision to plead guilty on a belief that he would be permitted to serve out his enlistment, then a question would be raised as to the providency of the plea. United States v. Santos, 4 M.J. 610 (N.C.M.R.1977). But here, the appellant was not laboring under any such misapprehension of the facts. The possibility of administrative action, even after the terms of the pretrial agreement were effected, was clearly spelled out on the face of the document. The military judge determined that the appellant had read the agreement (R.10), and had discussed its provisions with his counsel (R.11). [537] While this argument is persuasive, it ignores the fact that the military judge must satisfy himself that the accused understands the terms of the agreement. Were the convening authority to institute later successful administrative discharge proceedings on the basis of this court-martial, then the desire of the appellant as manifested in the promise of a suspended bad-conduct discharge would be frustrated. He might well have preferred to plead not guilty in the first instance and take his chances with the findings of a court-martial. Accordingly, we must set aside the findings and sentence and return the record to the Judge Advocate General. A rehearing may be ordered. Judge FERRELL concurs.