Army Court of Criminal Appeals

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.
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[A]ppellant has fallen far short of showing prejudice. He writes he "voluntarily acquiesced" to the discharge provision, but he did more than that. Appellant and his counsel specifically included the term with an offer to plead guilty and quantum dated 22 April 2022. The convening authority accepted both. After this arm's length transaction, appellant discussed and affirmed the term with the military judge, indicating he wanted a dishonorable discharge. Not surprisingly, he received the bargained-for sentence. Based on our common sense and experience as practitioners, we are confident the pretrial agreement's discharge provision worked to his favor by helping induce the convening authority to accept the proposed confinement limitation. We are also confident, based on our review of the record and experiences with similar cases, the military judge would have included a dishonorable discharge in the adjudged sentence even without the agreement's mandatory discharge provision.

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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Applied here, given our finding that appellant was improvident of Specification 2 of Charge V, the Convening Authority may now elect to withdraw from the Plea Agreement and proceed to trial on all of the specifications and charges to which appellant pled guilty. On the other hand, given that we have exercised our discretion to dismiss Charge III and its specification and Charge IV and its specification with prejudice, even if the Convening Authority withdraws from the Plea Agreement, the government still is precluded from moving forward on those two charges and specifications.
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To reiterate, other than setting aside Specification 2 of Charge V, at this point we are not making any ruling with respect to the findings of guilt pertaining to any of the remaining charges and specifications to which appellant pled guilty. Indeed, we will not take any further action on the remaining findings in this case until after we receive the answer from the Chief Trial Judge as to whether or not the Convening Authority for the Seventh Army Training Command wishes to withdraw from the Plea Agreement. Likewise, given the very limited scope of our remand, the Convening Authority for the Seventh Army Training Command, or whichever convening authority is directed to provide support for this remand, will not have the authority or jurisdiction to take any further action on any of the remaining charges and specifications in this case. See United States v. Carter, 76 M.J. 293, 295-96 (C.A.A.F. 2017) ("But even when acting on remand, a convening authority may still only take action 'that conforms to the limitations and conditions prescribed by the remand.") citing United States v. Montesinos, 28 M.J. 38, 42 (C.M.A. 1989). See also Article 66(O(3), UCMJ (remand hearings shall be "subject to such limitations as the Court may direct and under such regulations as the president may prescribe.")

In sum, if in response to our Order the Convening Authority for the Seventh Army Training Command indicates that he or she is electing to withdraw from the Plea Agreement, we will issue a ruling providing that Convening Authority, or any other convening authority, with the jurisdiction to proceed with a rehearing on all of the specifications and charges to which appellant pled guilty, including Specification 2 of Charge V. On the other hand, if the Convening Authority for the Seventh Army Training Command elects not to withdraw from the Plea Agreement, this Court will issue a further ruling addressing the remaining specifications and sentence.