In Griffin, the Appellant agreed to a GP and that a Dishonorable Discharge was required to be adjudged. He challenged that on appeal.
This case was decided under the 2016 MCM. The court finds error in the required DD as part of the PTA under the old rules. However, the court finds there is no evidence of prejudice.
Appellant and the convening authority reached a pretrial agreement, and the offer portion required the military judge to sentence appellant to a dishonorable discharge. The military judge discussed this provision in detail with appellant at the guilty plea inquiry, and he ultimately indicated it was his "expressed desire" to receive a dishonorable discharge. The military judge sentenced him to that punishment, and confinement.
In Baylor, the court addressed post-trial delay and the failure of the MJ to make a "meaningful" inquiry into the PTA. Finding no harm, the court affirms the findings and sentence. As to the delay, the court set-aside the 307 days of confinement (already served by this time) and affirmed only the BCD.
In Kibler, a GP case with Art. 128b allegations, there are complications.
1. A specification is set aside.
Applied here, the military judge erred in failing to resolve the substantial conflict and inconsistencies between: (1) whether the Article 128b offense as amended in Specification 2 of Charge V alleged a violation of Article 128b(5) (suffocation) or Article 128b(1) (violent offense); (2) the fact that the amended allegation, asserting that appellant covered his wife's chest and neck with a pillow, failed to meet the legal definition of "suffocation" (which again requires a covering of the nose or mouth); and (3) the fact that the parties amended the specification to expressly delete any reference to the face, yet appellant contended that he suffocated his wife by placing the pillow over her face. Given these contradictions, appellant was not provident to Specification 2 of Charge V, and it must be set aside for legal insufficiency. See United States v. Kim, 83 M.J. 235, 238 (C.A.A.F. 2023) ("[B]ecause a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.") (citations omitted).
2. Now for something different.
Paragraph 5(e) of the Plea Agreement provides that the Convening Authority may withdraw from the plea agreement "if findings are set aside because my plea of guilty pursuant to the agreement was held improvident on appellate review."
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