United States v. Pinard ( 2017 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201700059
_________________________
UNITED STATES OF AMERICA
Appellee
v.
ASHLY PINARD
Airman (E-3), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Captain Brian Lansing, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA
Staff Judge Advocate’s Recommendation: Commander Irve C.
Lemoyne, JAGC, USN.
For Appellant: Captain Scott F. Hallauer, JAGC, USN.
For Appellee: Lieutenant George R. Lewis, JAGC, USN.
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Decided 13 June 2017
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Before M ARKS , R UGH , and E LLINGTON , Appellate Military Judges
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This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
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PER CURIAM:
A military judge, sitting as a special court-martial, convicted the
appellant, pursuant to his pleas, of one specification of conspiracy to commit
larceny and one specification of larceny in violation of Articles 81 and 121,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881 and 921 (2012).
The military judge sentenced the appellant to six months’ confinement, a
$4,000.00 fine, reduction to pay grade E-1, and a bad-conduct discharge. The
United States v. Pinard, No. 201700059
convening authority approved the sentence as adjudged and, pursuant to a
pretrial agreement (PTA), attempted to waive the adjudged fine “for the
maximum allowable period of six (6) months pursuant to Articles [sic]
58b(a)(2)[, UCMJ.]”
Although no issues were raised by the parties, we directed the
government to show cause why the court should not disapprove the sentence
to a fine of $4,000.00.
In the PTA, the convening authority agreed to disapprove any adjudged
fine that exceeded $4,000.00 and approve the deferral and waiver of adjudged
fines “pursuant to Article 57(a)(2), UCMJ.”1 In attempting to make sense of
this provision after the announcement of sentence, the military judge asked
“[t]hen what happens to the fine after [the convening authority acts on the
sentence]?”2 The trial counsel replied:
Your Honor, my understanding and our position is that it’s
deferred until the convening authority’s action, and that which
is not cancelled out by the PTA would then take effect at that
time.3
The defense counsel and the appellant both concurred with the trial counsel’s
interpretation. However, the parties did not discuss the meaning or intent of
the concomitant “waiver of adjudged fines” provision in the PTA.
Article 57(c), UCMJ, directs that a fine is “effective on the date ordered
executed.” 10 U.S.C. § 857 (2016). Article 58b(b), UCMJ, permits the
convening authority to “waive any or all of the forfeitures of pay and
allowances required by subsection (a) for a period not to exceed six months.”
10 U.S.C. § 858b (2016). However, neither Article 57 nor Article 58b permits
the convening authority to “waive” a fine for any period of time, and no other
rule grants that power to the convening authority.
As, pursuant to Article 57(c), UCMJ, the fine was unexecuted until the
convening authority acted, the attempt to “defer” the fine was a nullity,
without effect. However, the appellant’s bargained for “waiver of adjudged
fines” served to unlawfully delay the payment of the fine as required by the
law. The government had no authority to strike that bargain, yet that
provision was one of the few benefits—along with deferral and waiver of
forfeitures—accruing to the appellant from his PTA.
1 Appellate Exhibit III at 1.
2 Record at 128.
3 Id.
2
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Interpretation of a PTA’s meaning and effect is a question of law that we
review de novo. United States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009). An
appellant’s pleas are improvident when a mutual misunderstanding about a
material PTA term results in him not receiving the benefit of the bargain.
United States v. Perron, 58 M.J. 78, 82 (C.A.A.F. 2003) (citing United States
v. Hardcastle, 53 M.J. 299, 302 (C.A.A.F. 2000); United States v. Williams, 53
M.J. 293, 296 (C.A.A.F. 2000)). Therefore, a guilty plea may be withdrawn
when a court-martial’s “collateral consequences are major and the appellant’s
misunderstanding of the consequences (a) results foreseeably and almost
inexorably from the language of a pretrial agreement; (b) is induced by the
trial judge’s comments during the providence inquiry; or (c) is made readily
apparent to the judge, who nonetheless fails to correct that
misunderstanding.” United States v. Bedania, 12 M.J. 373, 376 (C.M.A.
1982).
“[I]t is the military judge’s ‘responsibility to police the terms of [PTAs] to
insure compliance with statutory and decisional law as well as adherence to
basic notions of fundamental fairness.’” United States v. Soto, 69 M.J. 304,
307 (C.A.A.F. 2011) (quoting United States v. Partin, 7 M.J. 409, 412 (C.M.A.
1979)). “To ensure that the record reflects the accused understands the [PTA]
and that both the Government and the accused agree to its terms, the
military judge must ascertain the understanding of each party during the
inquiry into the providence of the plea.” United States v. Smith, 56 M.J. 271,
272-73 (C.A.A.F. 2002) (citations omitted).4 While RULE FOR COURTS-
MARTIAL 910(h)(3), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.), requires only that the military judge “inquire into any parts of a [PTA]
which were not previously examined” after announcing the sentence, the
ultimate requirement is that the military judge “address the parties’
understanding of any limitations on the sentence in order to assure that
there is a mutual agreement.” Smith, 56 M.J. at 273 (citations omitted).
Despite the government being unable to comply with a material PTA
term, the appellant, nonetheless, “‘is entitled to the benefit of any bargain on
which his guilty plea was premised.’” Smith, 56 M.J. at 272 (quoting Bedania,
12 M.J. at 375)). When specific performance is not possible, “[a]n appellate
court may determine that alternatives to specific performance or withdrawal
of a plea could provide an appellant with the benefit of his or her bargain,”
provided the appellant accepts the alternate remedy. Perron, 58 M.J. at 86.
4 See also RULE FOR COURTS-MARTIAL 910(f), MANUAL FOR COURTS MARTIAL,
UNITED STATES (2012 ed.).
3
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As the government and the appellant are in agreement that this court
should disapprove the appellant’s sentence to a fine of $4,000.00,5 we take
remedial action consistent with their agreement.
CONCLUSION
The findings are affirmed. Only so much of the approved sentence as
provides for six months’ confinement, reduction to pay grade E-1, and a bad-
conduct discharge is affirmed.
For the Court
R.H. TROIDL
Clerk of Court
5Appellee’s Response to Court Order to Show Cause at 1; Appellant’s Response to
Court Order to Show Cause at 1.
4