United States v. Felder , 59 M.J. 444 ( 2004 )

UNITED STATES, Appellee
v.
Cameron T. FELDER
Private
U.S. Army, Appellant
No. 04-0027
Crim. App. No. 20021011
United States Court of Appeals for the Armed Forces
Argued March 2, 2004
Decided May 5, 2004
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Terri J. Erisman (argued); Colonel Robert
D. Teetsel, Lieutenant Colonel Mark Tellitocci and Major Allyson
G. Lambert (on brief).
For Appellee: Lieutenant Colonel Randy V. Cargill (argued);
Colonel Lauren B. Leeker and Lieutenant Colonel Margaret B.
Baines (on brief).
Military Judge: John J. Carroll III
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Felder, No. 04-0027
Chief Judge CRAWFORD delivered the opinion of the Court.
Before a military judge sitting alone as a special court-
martial, Appellant, pursuant to his pleas, was convicted of two
specifications of failing to go to his appointed place of duty,
absence without leave, disobeying a commissioned officer,
disobeying a noncommissioned officer, and two specifications of
assault, in violation of Articles 86, 90, 91, and 128, Uniform
Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 886,
990, 991, and 928 (2000), respectively. He was sentenced to
confinement for five months and a bad conduct discharge. The
military judge awarded 32 days of credit for Appellant’s
pretrial confinement. In accordance with the pretrial
agreement, the convening authority approved only 135 days of
confinement and the punitive discharge, and waived the automatic
forfeitures, directing payment to Appellant’s children. The
Court of Criminal Appeals affirmed the findings and sentence in
an unpublished opinion. United States v. Felder, ARMY No.
20021011 (A. Ct. Crim. App. July 22, 2003).
This Court granted review of the following issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY
SUMMARILY AFFIRMING APPELLANT’S CONVICTION WHERE THE
MILITARY JUDGE FAILED TO DISCUSS ANY OF THE PROVISIONS
OF THE PRETRIAL AGREEMENT WITH APPELLANT PRIOR TO
ACCEPTING HIS PLEAS, IN VIOLATION OF THIS COURT’S
HOLDINGS IN UNITED STATES V. GREEN, 1 M.J. 453 (C.M.A.
1976) AND UNITED STATES V. KING, 3 M.J. 458 (C.M.A.
1977).
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BACKGROUND
Before accepting Appellant’s guilty plea, the military
judge conducted the providence inquiry required by United States
v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969). The judge’s
inquiry into Appellant’s plea agreement did not include an
inquiry into Appellant’s waiver of motions for relief under
Article 13, UCMJ, 10 U.S.C. § 813 (2000).
DISCUSSION
A servicemember’s decision to plead guilty at court-
martial, as well as the plea agreement related to that decision,
have long been the subject of scrutiny by courts and
commentators. “Because there are potential dangers in the abuse
of this abbreviated method of disposing of charges, a number of
safeguards have been included.” David A. Schleuter, Military
Criminal Justice 372 (5th ed. 1999). This Court has emphasized
the importance of the providence inquiry as it relates to guilt
or innocence, see Article 45, UCMJ, 10 U.S.C. § 845 (2000); Rule
for Court-Martial 910(c)-(e) [hereinafter R.C.M.]; Care, 18
C.M.A. at 541-42, 40 C.M.R. at 253-54, and that portion of the
inquiry relating to the critical role that a military judge and
counsel must play to ensure that the record reflects a clear,
shared understanding of the terms of any pretrial agreement
between the accused and the convening authority. R.C.M. 910(f);
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United States v. King, 3 M.J. 458 (C.M.A. 1977); United States
v. Green, 1 M.J. 453 (C.M.A. 1976). Likewise, we have not
hesitated to examine the provisions of such an agreement,
particularly when they purport to waive the accused’s right to
trial. “Let there be no mistake, however: we will continue to
strike hard where the circumstances describe a command-sponsored
clause which would violate the institutional safeguards an
accused has under the Uniform Code of Military Justice.” United
States v. Jones, 23 M.J. 305, 308 (C.M.A. 1987). It is
paramount that we ensure there is a knowing, voluntary plea and
that the “accused understands the agreement” and the “terms” of
that agreement. R.C.M. 910(f)(4).
In the instant case, the military judge’s inquiry into
Appellant’s pretrial agreement, including the judge’s failure to
assess Appellant’s “Article 13 and restriction tantamount to
confinement” waiver, fell short of that required by R.C.M.
910(f)(4) and United States v. McFadyen, 51 M.J. 289 (C.A.A.F.
1999). Although these deficiencies constitute legal error, for
the reasons set forth below, we affirm the decision of the Court
of Criminal Appeals.
R.C.M. 910(f) is designed to ensure that an accused knows
the terms of the pretrial agreement. The accused must know and
understand not only the agreement’s impact on the charges and
specifications which bear on the plea, the limitation on the
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United States v. Felder, No. 04-0027
sentence, but also other terms of the agreement, including
consequences of future misconduct or waiver of various rights.
As to the latter, in McFadyen, we required that
where a military judge is faced with a pretrial
agreement that contains an Article 13 waiver, the
judge should inquire into the circumstances of the
pretrial confinement and the voluntariness of the
waiver, and ensure that the accused understands the
remedy to which he would be entitled if he made a
successful motion.
51 M.J. at 291.
In his pretrial agreement, Appellant promised to enter into
a stipulation of fact, request trial by judge alone, use
stipulations in lieu of personal appearance by witnesses not
located at Fort Bragg, and waive motions for sentence credit
based on “Article 13 and restriction tantamount to confinement.”
Appellant made these promises in exchange for a limitation on
the sentence. The agreement also provided four grounds for
permissive cancellation: (1) modification of the stipulation
without Appellant’s consent; (2) withdrawal from the agreement
by Appellant prior to his pleas being accepted by the military
judge; (3) Appellant’s failure to fulfill any material promise
in the agreement; and (4) disagreement as to a material term in
the agreement. The agreement itself contains no impermissible
terms. R.C.M. 705(c)(1)(B); see, e.g., United States v.
Cummings, 17 C.M.A. 376, 38 C.M.R. 174 (1968)(error to waive due
process).
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United States v. Felder, No. 04-0027
In separate inquiries, the military judge ensured that
Appellant’s choice of forum and entry into a stipulation of fact
were knowing and voluntary, and Appellant has not asserted
otherwise. Appellant offered no stipulations of expected
testimony and has not averred that he would have done
differently had his pretrial agreement not contained this
provision. The stipulation of fact was not modified without
Appellant’s consent, Appellant did not attempt to withdraw from
the agreement, he did not fail to fulfill any material promise
contained in the agreement, nor has there been any disagreement
regarding a material term of the agreement. Appellant’s defense
counsel informed the military judge on the record that Appellant
had not been punished in any way cognizable under Article 13 and
did not raise the issue in his R.C.M. 1105 matters. In
McFadyen, we specifically recognized waiver of Article 13
motions as a permissible plea agreement term.
Finally, we note that the convening authority’s action
complies with the agreement. In sum, there is no evidence or
representation before this Court that Appellant misunderstood
the terms of his agreement, that the operation of any term was
frustrated, that Appellant’s participation in the agreement was
anything other than wholly voluntary, or that he was subject to
illegal punishment or restriction tantamount to confinement.
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United States v. Felder, No. 04-0027
R.C.M. 910(f) requires a meaningful inquiry into the
provisions of every pretrial agreement, and McFadyen, 51 M.J. at
291, requires an “inquiry into the circumstances of the pretrial
confinement and the voluntariness of the waiver.” Nevertheless,
nothing in that decision relieves an appellant of his burden
under Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000), to
demonstrate material prejudice to a substantial right. Thus,
while the military judge’s failure to inquire into the “Article
13 and restriction tantamount to confinement” provision of
Appellant’s pretrial agreement was error, Appellant has neither
averred nor demonstrated any prejudice resulting from this
error. See Article 59(a).
CONCLUSION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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