United States v. Newkirk

GREGORY, Judge: The military judge failed to ascertain whether the written pretrial agreement in this case encompassed all the understandings of the parties. United States v. King, 3 M.J. 458 (C.M.A.1977). For this reason, the general court-martial convening authority directed proceedings in revision, including a specific provision that “the accused be advised that he may withdraw his pleas of guilty and enter pleas of not guilty.” At the proceedings in revision, appellant attempted to change his pleas and cited the Revision Directive issued by the convening authority as his authority to do so; however, the military judge refused to permit the change in pleas in the absence of a sound reason for doing so, apparently on the basis of paragraph 70b, Manual for Courts-Martial, 1969 (Rev.) (MCM). We have previously held that a revision proceeding in which an accused is not afforded an opportunity to plead anew is not the proper remedy for attempting to cure a defective plea bargain inquiry. United States v. Wurzler, No. 77 1866 (N.C.M.R. 1 June 1979) (unpublished); United States v. Dimpter, 6 M.J. 824 (N.C.M.R.1979). See also United States v. Gregg, 4 M.J. 897, 898 (N.C.M.R.1978), citing McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). In so holding, we have undoubtedly implied that a revision proceeding in which an opportunity to plead anew is afforded could serve as an appropriate method of correcting a defective plea bargain inquiry. We adhere to this view, although there is undoubtedly truth in the statement of Senior Judge Dunbar in his separate opinion that such a procedure “will in all probability produce further complications.” A proceeding in revision is not designed to handle the problem of a defective plea bargain inquiry. The proper and recommended course of action is a rehearing. This was the remedy directed in United States v. King, supra at 459. But see United States v. Smith, 5 M.J. 842 (A.C.M.R.1978); United States v. Seberg, 5 M.J. 589 (A.F.C.M.R.1978). Although we believe that revision proceedings could have been sufficient in this case, we conclude that they were not in this instance. As noted by the military judge, the obvious intent of the convening authority in ordering the revision proceeding and in affording the accused an opportunity to withdraw his pleas of guilty and enter pleas of not guilty was “to essentially transport in effect the accused back to the portion of the trial dealing with the Care Inquiry.” (Record of Proceedings in Revision at 3). After findings and before sentence, the ability of an accused to change his guilty plea to not guilty is subject to the sound discretion of the military judge. Par. 70b, MCM; United States v. Politano, 14 U.S.C.M.A. 518, 34 C.M.R. 298 (1964). The revision proceeding in this case, however, reverted the trial back to its pre-findings stage. We believe that during the pre-findings stage of the trial an accused has an absolute right to withdraw his pleas of guilty. See United States v. Politano, supra. For this reason, we find that the military judge erred in refusing to allow appellant to change his pleas to those of not guilty. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General. A rehearing may be ordered. Judge GLADIS concurs.