Navy-Marine Corps Court of Criminal Appeals

In United States v. Johnson, the sole issue is whether the military judge should have recused himself from presiding over the guilty plea.

Appellant was initially pending action for failing a urinalysis. He thought it might be a good idea to start a fire to destroy the evidence which resulted in charges of arson. While the case was underway another fire arose and a note was left near the scene thought to exculpate the accused. There was a delay in trial to await the results of the investigation. Investigation of the second fire was complete trial restarted. But, a few weeks before trial an exculpatory video showed up on the command's Facebook pages. Another investigation and more delay ensued. There were other delays and continuances in the case because of the pandemic. Well, Appellant ended up with more charges and negotiated a PTA.

​Subsequent to entering into a pretrial agreement, Appellant filed a motion for the military judge to recuse himself. Appellant argued there was an appearance of bias because the continuances, and joinder of an additional charge for misconduct during the trial, adversely affected the military judge and his docket. The military judge invited written pleadings, and, in the hearing on the motion, allowed Appellant to voir dire him. Through this questioning, the military judge explained that during sentencing he would consider only the evidence properly admitted, that he harbored no animus towards Appellant, and this would be no different from any other time when he had to compartmentalize information while presiding over courts-martial. The military judge also informed counsel that neither the scheduling complications for the case nor the length of the court-martial caused him any personal problems. Following the military judge’s denial of the recusal motion, Appellant pleaded guilty, and elected trial by military judge alone, after being advised that the same military judge that he requested recuse himself would be his sentencing authority. The parties agreed that Appellant’s guilty plea did not waive the recusal motion on appeal.

NMCCA finds no abuse of discretion with the MJ refusing to recuse himself. It helped that the MJ sentenced Appellant to three years where the PTA allowed up to four. This was an old style PTA where the MJ didn't know the sentence cap. See n. 3.

So, the adage apparently holds that it's not the crime but the cover-up that turns an OTH into three years and a DD.

In United States v. Lizotte, the issues are 

(1) the sentence limitation portion of the plea agreement contained impermissible limitations under a plain reading of R.C.M. 705(d) and should not have been accepted.

(2) the plea agreement contained a prohibited and unenforceable provision requiring the military judge to award a specific sentence, violating public policy.

Consistent with our recent opinion in United States v. Rivero, we find that Appellant’s assignments of error lack merit. As in Rivero, “Appellant negotiated the provisions of his plea agreement in accordance with R.C.M. 705(d)(1) and enjoyed complete sentencing proceedings as required by R.C.M. 1001 and 1002. Accordingly, we find the presence and effect of the sentence limitation provision in this case accorded with the President’s statement of public policy.” Because we find “that Appellant did receive complete presentencing proceedings, that his plea agreement’s punishment limitations did not render those proceedings meaningless, and that the terms of his plea agreement did not violate public policy, we find [these AOEs] to be without merit.”

The issue is not new and n. 3. to the opinion tells us Rivero's status.

​82 M.J. 629 (N-M. Ct. Crim. App. 2022) (finding that specific sentence limitations within a plea agreement do not violate the Rules for Courts-Martial or public policy), review granted, __ M.J. __, 2022 CAAF LEXIS 484 (C.A.A.F., July 11, 2022).