United States v. Parker

UNITED STATES, Appellee
v.
Christopher E. PARKER, Private
U.S. Marine Corps, Appellant
No. 05-0072
Crim. App. No. 200102191
United States Court of Appeals for the Armed Forces
Argued October 11, 2005
Decided March 14, 2006
EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD and BAKER, JJ., joined. ERDMANN, J., filed a
dissenting opinion, in which GIERKE, C.J., joined.
Counsel
For Appellant: Captain Rolando R. Sanchez, USMC (argued).
For Appellee: Lieutenant TyQuili R. Booker, JAGC, USN (argued);
Commander Charles N. Purnell, JAGC, USN, and Major Kevin C.
Harris, USMC (on brief); Colonel William K. Lietzau, USMC.
Military Judge: Kenneth B. Martin
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Parker, No. 05-0072/MC
Judge EFFRON delivered the opinion of the Court.
Appellant was charged with unauthorized absence and missing
movement by design in violation of Articles 86 and 87, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 887 (2000).
At a special court-martial composed of a military judge sitting
alone, Appellant entered pleas of guilty to unauthorized absence
and missing movement by neglect. The military judge accepted
the plea to the unauthorized absence charge, but he determined
that the plea to the missing movement charge was improvident.
Appellant subsequently contested the missing movement charge.
After considering evidence from both parties, the military judge
found Appellant guilty of missing movement by design. Pursuant
to Appellant’s earlier plea, the military judge also found
Appellant guilty of unauthorized absence. In the findings, the
military judge made minor modifications that are not pertinent
to the present appeal. The military judge sentenced Appellant
to a bad-conduct discharge and confinement for five months.
The convening authority approved the sentence and remitted
confinement in excess of forty-four days. The United States
Navy-Marine Corps Court of Criminal Appeals affirmed the finding
of unauthorized absence, reduced the finding of missing movement
through design to missing movement through neglect, and affirmed
a sentence of a bad-conduct discharge and thirty days of
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United States v. Parker, No. 05-0072/MC
confinement. United States v. Parker, 60 M.J. 666 (N-M. Ct.
Crim. App. 2004).
On appellant’s petition, we granted review of the following
issue:
WHETHER THE LOWER COURT ERRED WHEN IT
REFUSED TO ENFORCE THE PRETRIAL AGREEMENT’S
PROVISION TO SUSPEND THE BAD-CONDUCT
DISCHARGE.
For the reasons discussed below, we affirm.
I. BACKGROUND
A. PLEA INQUIRIES AND PRETRIAL AGREEMENTS
Under United States v. Care, 18 C.M.A. 535, 541, 40 C.M.R.
247, 253 (1969), and its progeny, there are specific
requirements governing guilty pleas in the military justice
system. Prior to accepting a guilty plea, the military judge
must provide detailed advice to the accused and ensure that the
accused understands the meaning and effect of the plea. Rule
for Courts-Martial (R.C.M.) 910(c). The military judge may not
accept a plea of guilty without addressing the accused
personally and determining that the plea is voluntary. R.C.M.
910(d). In addition, the military judge may not accept a plea
of guilty without questioning the accused and ensuring that
there is a factual basis for the plea. Id. As noted in the
R.C.M. 910(d) Discussion, “the accused must admit every element
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United States v. Parker, No. 05-0072/MC
of the offense(s) to which the accused pleaded guilty.” The
R.C.M. 910(d) Discussion also states: “The accused need not
describe from personal recollection all the circumstances
necessary to establish a factual basis for the plea.
Nevertheless the accused must be convinced of, and be able to
describe all the facts necessary to establish guilt.” The
decision of a military judge to reject a guilty plea will not be
overturned unless it is arbitrary. United States v. Penister,
25 M.J. 148, 152 (C.M.A. 1987) (“[A] judge may err on the side
of caution and not accept a guilty plea when there is any
question as to its providence.”).
An accused and the convening authority may enter into a
pretrial agreement, subject to R.C.M. 705. Under the rule, for
example, an accused may agree to plead guilty to one or more
charges and specifications, and the convening authority may
agree to limit, suspend, or mitigate all or portions of the
sentence. See, e.g., R.C.M. 705(b)(1); R.C.M. 705(b)(2)(E);
R.C.M. 705(b)(2)(E) Discussion. When there is a plea agreement,
the military judge must ensure that the accused understands the
agreement, that any unclear terms are clarified, and that all
parties agree to the terms of the agreement. R.C.M. 910(f);
R.C.M. 910(h)(3); R.C.M. 910(f)(4) Discussion.
An accused may withdraw from a pretrial agreement at any
time, subject to the rules governing guilty pleas and
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United States v. Parker, No. 05-0072/MC
confessional stipulations. See R.C.M. 705(d)(4)(A). After
trial, and prior to the convening authority’s action, the
accused may initiate a modification of the pretrial agreement,
so long as the accused has the assistance of counsel, the
modification is the product of a fully informed and considered
decision, and it is not the product of a coercive atmosphere.
United States v. Pilkington, 51 M.J. 415, 416 (C.A.A.F. 1999).
The convening authority may withdraw from a pretrial
agreement under four specified circumstances: (1) “at any time
before the accused begins performance of promises contained in
the agreement”; (2) “upon the failure by the accused to fulfill
any material promise or condition in the agreement”; (3) “when
inquiry by the military judge discloses a disagreement as to a
material term in the agreement”; and (4) “if findings are set
aside because a plea of guilty entered pursuant to the agreement
is held improvident on appellate review.” R.C.M. 705(d)(4)(B).
B. THE PRETRIAL AGREEMENT BETWEEN APPELLANT AND
THE CONVENING AUTHORITY
The charged offenses involved two related matters: (1)
Appellant’s unauthorized absence of 134 days; and (2)
Appellant’s missing the deployment of his unit to Okinawa by
“design” on a specified day within that period. Appellant and
the convening authority entered into a pretrial agreement that
expressly provided that “[a]ll provisions of this Agreement are
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United States v. Parker, No. 05-0072/MC
material.” Appellant agreed to plead guilty to the charged
unauthorized absence and to a lesser offense of missing movement
through neglect. In return, the convening authority agreed to:
(1) suspend a bad-conduct discharge, if adjudged; and (2)
suspend any confinement in excess of thirty days, if adjudged.
In the agreement, Appellant expressly stated: “I understand
that if my guilty pleas do not remain in effect for any reason
through the announcement of the sentence, then the convening
authority may withdraw from this Agreement.”
C. THE PROVIDENCE INQUIRY
Consistent with the pretrial agreement, Appellant entered
pleas of guilty at trial to the unauthorized absence charge and
to the offense of missing movement by neglect. The military
judge explained the plea inquiry process to Appellant,
specifically noting: “If at any time you become confused or
have any questions, stop me and I’ll give you the opportunity to
consult with your attorney.”
The military judge conducted an inquiry into the providence
of the pleas, ultimately concluding that Appellant’s plea was
provident as to the unauthorized absence offense. The inquiry
into unauthorized absence and Appellant’s conviction for that
offense are not at issue in the present appeal.
With respect to missing movement by neglect, the military
judge provided the following description of the elements:
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United States v. Parker, No. 05-0072/MC
Number one, that you were required in the
course of duty to move with 3d Battalion,
11th Marines, 1st Marine Division.
The second element is that you knew of the
prospective movement of the unit.
The third element is that on or about the
7th of August 2000, at Marine Air Ground
Task Force Training Command, Twentynine
Palms, California, you missed the movement
of that unit.
And the fourth element is that you missed
the movement through neglect.
See Manual for Courts-Martial, United States pt. IV, para. 11.b
(2005 ed.). In addition, the military judge offered the
following explanation of certain terms used in the elements:
The word “movement” as used in this
specification means a major transfer of a
unit involving a substantial distance and
period of time. The word does not include
practice marches of a short duration and
distance, nor minor changes in the location
of a unit.
In order to plead guilty to this offense,
you must have actually known of the
prospective movement that was missed.
Knowledge of the exact hour, even the exact
date of the scheduled movement is not
required. It is sufficient if the
approximate date was known by you as long as
there is a causal connection between your
conduct and the missing of the scheduled
movement.
The “term neglect” [sic] means the omission
to take such measures as are appropriate
under the circumstances to assure presence
with an aircraft, unit, or ship at the time
of the scheduled movement, or doing some act
without giving attention to its probable
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United States v. Parker, No. 05-0072/MC
consequences in connection with the
prospective movement to such a distance as
would make it likely that the one could not
return in time for the movement.
See id. para. 11.c.
Appellant responded affirmatively to the military judge’s
general inquiry as to whether the elements described what he
“did on that occasion.” In response to the military judge’s
question about knowledge of the movement, Appellant acknowledged
that he had heard from his superior noncommissioned officers
that the unit was going to Okinawa in early August 2000. The
military judge then sought to determine whether the impending
movement was the subject of official orders communicated to
Appellant or whether he had simply heard barracks rumors:
MJ: And you knew of the movement, the place
and time because your NCOs [noncommissioned
officers] had told you, and that was also
common knowledge in the battalion?
ACC: No, sir. I heard it through -- they
were talking about it, sir. I just over
heard [sic] it, sir.
MJ: Well, how did you know they were
accurate? Lots of people talk about stuff
all the time and never –- so you just heard
some rumors that you all might be going to
Okinawa?
ACC: Yes, sir.
Following Appellant’s acknowledgement that his knowledge of
a possible deployment was the result of “rumors,” the military
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United States v. Parker, No. 05-0072/MC
judge stated: “Okay. I’m not going to take his plea.” After a
brief, thirteen-minute recess, the military judge asked if
defense counsel needed additional time in order to consult with
Appellant. Defense counsel then requested a continuance, which
the military judge granted. Defense counsel offered no
objection to the military judge’s plea inquiry or his decision
to not accept the plea.
During the continuance, Appellant attempted to enter into a
new pretrial agreement with the convening authority based upon
the unauthorized absence charge, but the convening authority
declined to do so. When the court-martial convened a month
later, the defense did not ask the military judge to reopen the
providence inquiry, nor did the defense otherwise challenge the
military judge’s ruling on providence. In response to the
military judge’s inquiry about motions, the defense replied that
he had none.
The military judge asked Appellant whether he understood
that the convening authority was no longer bound by the plea
agreement in view of the prior rejection of the plea. Appellant
responded in the affirmative. After noting that Appellant’s
request for a bench trial was based, at least in part, on the
pretrial agreement that was no longer in effect, the military
judge offered Appellant the opportunity to revisit his forum
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United States v. Parker, No. 05-0072/MC
choice. Appellant reaffirmed his desire for a judge-alone
proceeding.
D. MISSING MOVEMENT -- THE CONTESTED CHARGE
The military judge obtained the agreement of both parties
that Appellant’s provident plea to the absence offense would
establish one of the four elements of missing movement -- that
he was not present when his unit deployed. The military judge
emphasized that the Government would bear the burden of proving
the remaining elements -- that he was required to move with his
unit, that he knew of the prospective movement, and that he
missed the movement by design or neglect.
Trial on the merits focused primarily on the same concerns
that had been raised in the providence inquiry regarding
Appellant’s awareness of a deployment order. The prosecution
introduced the testimony of personnel in Appellant’s chain of
command who described the information regarding deployment to
Okinawa that was conveyed to the unit, as well as evidence that
Appellant was present for at least some of those briefings.
Defense counsel, in his opening statement, expressly set
forth the defense position -- that Appellant “did not have
actual knowledge that the unit was deploying to Okinawa in
August.” Appellant, who was the primary witness in his own
behalf, testified that he had no recollection of being advised
of a deployment to Okinawa. He specifically denied that anyone
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United States v. Parker, No. 05-0072/MC
in an official capacity had communicated to him that the unit
was going to Okinawa, including the prosecution’s witnesses from
his chain of command.
Defense counsel, in his closing statement, contended that
the discussions within the unit amounted to nothing more than
general information about potential deployments, and that
Appellant “did not have actual knowledge” of a specific
deployment. The prosecution argued in rebuttal that the
military judge, as factfinder, could infer actual knowledge from
circumstantial evidence, particularly the information that had
been made available to the unit. After making minor changes in
the wording of the charges, the military judge entered findings
of guilty to the contested charge of missing movement by design,
and of the uncontested charge of unauthorized absence.
E. SENTENCING -- APPELLANT’S FIRST REQUEST
FOR A BAD-CONDUCT DISCHARGE
During the sentencing proceedings, Appellant made a brief
unsworn statement in which he recounted his problems in high
school and in the service. After acknowledging his problems, he
said: “I kept on getting in trouble no matter how hard I tried.
So I took it into my own hands and went UA [unauthorized
absence].” Appellant expressly requested a punitive discharge:
“I’m sorry for the trouble I have caused and respectfully
request a bad-conduct discharge.” He concluded his statement by
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United States v. Parker, No. 05-0072/MC
noting: “My attorney has advised me of the negative aspects of
a bad-conduct discharge; however, I still request it. Thank
you.” See United States v. Pineda, 54 M.J. 298, 300-01
(C.A.A.F. 2001) (setting forth procedural requirements when an
accused requests a punitive discharge).
The prosecution made a very brief sentencing argument,
recommending a bad-conduct discharge and “an appropriate amount
of confinement.” Defense counsel noted Appellant’s request for
a bad-conduct discharge, pointed out that the missing movement
offense took place during the period of unauthorized absence,
and asked the military judge to limit confinement to thirty
days. The military judge sentenced Appellant to confinement for
five months and a bad-conduct discharge.
F. APPELLANT’S SECOND REQUEST, SPECIFICALLY ASKING THE
CONVENING AUTHORITY TO NOT SUSPEND THE BAD-CONDUCT DISCHARGE
Subsequent to trial, defense counsel submitted a request
for clemency to the convening authority under R.C.M. 1105. The
request began by reminding the convening authority that
Appellant “went to court with a pretrial agreement that stated
that in return for his pleas of Guilty . . . you agreed to
suspend any discharge and any confinement in excess of 30 days.”
Defense counsel emphasized that the plea had been rejected
because Appellant fulfilled his obligation to the truth during
the providence inquiry:
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United States v. Parker, No. 05-0072/MC
[T]he Military Judge would not accept a
guilty plea to the missing movement charge
because Pvt [Private] Parker stated that
although it was common knowledge that the
unit was going to Okinawa that summer, he
couldn’t recall ever specifically being told
that by someone in an official capacity.
Pvt Parker wanted to plead guilty, but based
on his memory and what he could honestly
testify to the judge would not accept his
plea.
After recounting the results of trial, defense counsel
urged the convening authority to use the pretrial agreement as
the framework for post-trial action with respect to confinement:
It is requested that you suspend any
confinement in excess of 30 days. The
Defense requests that when considering this
request for clemency that you take into
account that this was one of the terms
agreed to in the original agreement.
Although you decided to withdraw from the
agreement when a guilty finding was not
entered for the missing movement charge, the
defense urges you to consider that Pvt
Parker attempted to plead guilty to this
charge and that it was the military judge
that refused to accept the plea.
With respect to the bad-conduct discharge, however, defense
counsel implored the convening authority to disregard his prior
agreement to suspend the punitive discharge, emphasizing with
capital letters that his client “does NOT desire his Bad Conduct
Discharge be suspended.”
The convening authority responded to the defense request by
ordering Appellant’s release from confinement even though the
case had not yet been presented to him for action. As a result,
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United States v. Parker, No. 05-0072/MC
Appellant’s sentence to confinement was reduced from the five
months adjudged at trial to forty-four days.
G. APPELLANT’S THIRD REQUEST, REITERATING HIS OPPOSITION TO
SUSPENSION OF THE BAD-CONDUCT DISCHARGE
Prior to the convening authority’s formal action on the
findings and sentence, the defense made a further submission to
the convening authority. After noting that the defense had
previously submitted a clemency request, defense counsel
reiterated Appellant’s opposition to suspension of the adjudged
discharge:
Since Pvt Parker was released prior to the
end of his sentence and he does NOT desire
that his Bad Conduct Discharge be suspended,
the defense has no request for clemency.
In accordance with Appellant’s post-trial submissions, the
convening authority approved a sentence that included the
modified period of confinement and an unsuspended bad-conduct
discharge.
H. REVIEW BY THE COURT OF CRIMINAL APPEALS
The Court of Criminal Appeals held that the military judge
should have accepted Appellant’s plea in its entirety, on the
grounds that Appellant articulated sufficient facts to support a
plea of guilty to missing movement by neglect. Parker, 60 M.J.
at 669. The court substituted a finding of missing movement by
neglect in lieu of the finding of missing movement by design.
Id. at 671. The court further held that the pretrial agreement
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United States v. Parker, No. 05-0072/MC
should have remained in effect, and it reduced Appellant’s
confinement from forty-four days to thirty days to reflect the
terms of the agreement. Id. at 669 (citing Penister, 25 M.J. at
153). Based upon Appellant’s multiple requests for an
unsuspended bad-conduct discharge, the court concluded that the
portion of the pretrial agreement regarding suspending the bad-
conduct discharge was no longer in effect, and declined to
provide further relief. Id. at 670.
II. DISCUSSION
Appellant contends in the present appeal that his discharge
should be suspended in accordance with the original pretrial
agreement. We note that the Government has not appealed the
ruling of the court below with respect to either the
modification of the findings to conform with Appellant’s plea,
or the revision of the confinement portion of the sentence to
conform with the pretrial agreement. When a party does not
appeal a ruling, the ruling of the lower court normally becomes
the law of the case. See United States v. Doss, 57 M.J. 182,
185 (C.A.A.F. 2002). The law-of-the-case doctrine, however, is
a matter of appellate policy, not a binding legal doctrine.
Because the law-of-the-case doctrine is discretionary, it need
not be applied when the lower court’s decision is “clearly
erroneous and would work a manifest injustice.” Id. at n.*
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United States v. Parker, No. 05-0072/MC
(citing United States v. Williams, 41 M.J. 134, 135 n.2 (C.M.A.
1994)).
In the present case, it would be inappropriate to apply the
law-of-the-case doctrine. With respect to the first prong of
Doss, the ruling of the court below was clearly erroneous. As
noted in Penister, the military judge has broad discretion to
“err on the side of caution” in deciding whether to accept a
plea. 25 M.J. at 152. Here, when the military judge perceived
that Appellant was not prepared to agree that his actions
satisfied an element of the offense, he was well within his
discretion in deciding not to accept the plea.
Contrary to the suggestion of the court below that the
military judge’s action had the effect of “cutting off further
inquiry,” Parker, 60 M.J. at 669, the military judge did not
interrupt Appellant or counsel, nor did he move directly to
enter a plea. Once the military judge said that he could not
accept the plea in light of Appellant’s responses, he called a
recess. After the recess, the military judge asked Appellant if
he needed additional time to consult with counsel. He then
granted defense counsel’s motion for an extended continuance.
These steps provided Appellant with ample opportunity -- if he
was prepared to plead providently -- to request that the
military judge reopen the plea inquiry, but no such request was
forthcoming.
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We also note that the lower court: (1) failed to conduct a
plain error review even though Appellant did not object to the
ruling on providence at trial, see United States v. Powell, 49
M.J. 460, 465 (C.A.A.F. 1998); (2) applied an incorrect de novo
standard of review rather than determining whether the military
judge’s decision was arbitrary under Penister; and (3)
improperly conducted a legal sufficiency analysis in lieu of
considering whether the military judge had a reasonable basis
for concluding that Appellant had not conceded the elements
pertaining to actual knowledge of an official deployment
decision. See United States v. Hardeman, 59 M.J. 389, 392
(C.A.A.F. 2004).
With respect to the manifest injustice prong of Doss, we
focus on the specific context of this case. We first consider
whether the Government had an incentive to appeal, and we then
consider the relationship of the remedy sought to the
circumstances of the case.
In the present case, the Government had little incentive to
appeal the erroneous aspects of the lower court’s decision. The
Government emerged from the proceedings below with a conviction
for a closely related offense -- missing movement by neglect --
and all of the adjudged sentence except for fourteen days of
confinement, a period that Appellant had already served. If we
were to apply the law-of-the-case doctrine here, we would be
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United States v. Parker, No. 05-0072/MC
sending the Government a message that an appeal should be lodged
in every case where the lower court has articulated an incorrect
legal standard -- no matter how incidental the error from the
Government’s perspective, and no matter how insignificant the
result -- lest the Government be precluded from noting that
error in the event the defense should appeal. Given the
discretionary nature of the law-of-the-case doctrine, we decline
to apply it in a manner that would be so contrary to the sound
administration of justice.
Applying the law-of-the-case doctrine would be manifestly
unjust under the circumstances of the present appeal. First, we
note that the military judge correctly advised the parties that
the pretrial agreement no longer was in effect. The parties
agreed on the record, recognizing that the plain text of the
agreement supported the military judge’s position.
Second, we take into account Appellant’s express request
that the convening authority not grant the relief he now seeks.
In contrast to the court below, Parker, 60 M.J. at 670, our
focus here is not on whether Appellant withdrew from the
agreement, but whether we should exercise our discretion in
applying the law of the case to provide Appellant with the
relief that he repeatedly and expressly rejected. Appellant
specifically requested a sentence at trial that included a bad-
conduct discharge, even though he was informed of the adverse
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United States v. Parker, No. 05-0072/MC
consequences of a punitive separation. The military judge
granted his request. After trial, defense counsel referenced
the pretrial agreement and -- expressly and emphatically --
stated that Appellant did not want the convening authority to
suspend the adjudged bad-conduct discharge. After the convening
authority granted clemency on confinement, Appellant made a
further submission, reiterating his desire for an unsuspended
bad-conduct discharge. The convening authority granted his
request.
Appellant now contends that we should disregard his post-
trial requests for an unsuspended discharge because they were
the product of an adverse tactical situation created by the loss
of his pretrial agreement when the military judge rejected his
plea. Appellant suggests that in the face of an adjudged
sentence to five months of confinement, as opposed to the thirty
days of confinement provided for in the pretrial agreement, the
defense made a tactical choice. The defense implies that
Appellant chose to not request a suspended punitive discharge in
order to focus the convening authority’s attention on the issue
of confinement.
The record expressly refutes Appellant’s suggestion that
Appellant’s request for a punitive discharge was the product of
a tactical decision. Six months prior to the convening
authority’s action on the sentence, the convening authority
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United States v. Parker, No. 05-0072/MC
ordered Appellant’s release from confinement, and remitted the
balance of the adjudged sentence to confinement. A month prior
to the convening authority’s action -- when confinement was no
longer at issue -- defense counsel made a further submission to
the convening authority reiterating in capital letters that
“Appellant does NOT desire that his Bad Conduct Discharge be
suspended.” At that point, only the discharge was at issue, so
there was no tactical reason for Appellant to insist that the
convening authority disregard the pretrial agreement’s provision
for suspension of a punitive discharge. The defense submission,
however, unequivocally stated that “the defense has no request
for clemency.”
This case does not involve a claim that these choices were
the product of ineffective assistance of counsel or that these
choices were not made voluntarily by Appellant. See Pilkington,
51 M.J. at 416. The military judge’s decision did not make it
necessary for Appellant to take the unusual step of requesting
that his sentence include a punitive discharge. More important,
the plea decision did not preclude Appellant from asking the
convening authority to provide the relief set forth in the
pretrial agreement by suspending the punitive discharge,
particularly after his release from confinement.
Applying Doss, we decline to apply the law-of-the-case
doctrine where the Government had little incentive to appeal,
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United States v. Parker, No. 05-0072/MC
where the decision of the court below was clearly erroneous, and
where reliance on the doctrine would permit Appellant to benefit
from that erroneous ruling and require a convening authority to
provide Appellant with the very relief that he had rejected on
numerous occasions.
The pretrial agreement between Appellant and the convening
authority expressly provided that the convening authority could
withdraw from the agreement if Appellant’s plea did not remain
in effect “for any reason.” The military judge ruled that
Appellant’s plea was improvident, a ruling well within the range
of his discretion. Under these circumstances, the convening
authority acted within the terms of agreement when he withdrew
from it. Appellant is not entitled to enforcement of the
agreement.
III. DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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ERDMANN, Judge, with whom GIERKE, Chief Judge, joins
(dissenting):
The majority opinion finds that the United States Navy-
Marine Corps Court of Criminal Appeals erred in reversing the
military judge’s decision to reject Parker’s guilty plea to the
charge of missing a movement by neglect. The majority goes on
to find that Parker was not entitled to the benefit of his
pretrial agreement because he specifically requested an
unsuspended bad-conduct discharge.1 Because I find that the
lower court’s ruling is the law of the case and that Parker is
entitled to the benefit of his bargain, I respectfully dissent.
BACKGROUND
This issue arose when Parker attempted to plead guilty
pursuant to a pretrial agreement. Under the pretrial agreement,
the convening authority agreed to suspend any bad-conduct
discharge and any confinement in excess of thirty days. After
questioning Parker during the providence inquiry, as required by
Rule for Courts-Martial (R.C.M.) 910 and United States v. Care,
18 C.M.A. 535, 40 C.M.R. 247 (1969), the military judge rejected
Parker’s plea because he found insufficient direct evidence of
1
I am unsure why the majority reaches this issue based on their
conclusion that the military judge did not err in rejecting
Parker’s plea. If, as the majority finds, the plea was properly
rejected and there is no pretrial agreement in existence, then
there is nothing for Parker to enforce. As it is unnecessary to
the majority’s decision, any discussion in the majority opinion
about a pretrial agreement is dicta.
United States v. Parker, No. 05-0072/MC
Parker’s actual knowledge concerning the movement to satisfy the
requirements of a missing movement charge under Article 87,
Uniform Code of Military Justice, 10 U.S.C. § 887 (2000). The
court then granted the defense’s request for a continuance.
During the intervening period, the Government withdrew from the
pretrial agreement thereby rendering the agreement and its terms
void. When the case went back to trial, there was no pretrial
agreement in effect.
At trial Parker took the stand and gave the same testimony
he had given when questioned during the initial providence
inquiry. Trial counsel argued during his closing argument that
Parker’s actual knowledge of the movement could be proven by
circumstantial evidence, including Parker’s testimony that the
upcoming movement was “common knowledge” throughout his unit.
Ironically, the military judge then found Parker guilty of the
greater offense (missing movement by design) based on the same
evidence that he found insufficient during the plea inquiry to
establish a lesser included offense (missing movement by
neglect). Parker was sentenced to a bad-conduct discharge and
five months of confinement.
On appeal, the Court of Criminal Appeals found that the
military judge erred in refusing to accept Parker’s plea. The
lower court held, in reliance on United States v. Penister, 25
M.J. 148 (C.M.A. 1987), that “the military judge’s erroneous
2
United States v. Parker, No. 05-0072/MC
rejection of the guilty plea was not a ‘failure of the accused’
to fulfill any material promise or condition in the agreement.”
United States v. Parker, 60 M.J. 666, 669 (N.M. Ct. Crim. App.
2004). Therefore, R.C.M. 705(d)(4)(B) did not allow the
convening authority to withdraw from the pretrial agreement.
Despite this ruling, the lower court declined to return Parker
to his original position under the pretrial agreement. The
court concluded that Parker’s subsequent request in his unsworn
statement and in post-trial filings for an unsuspended bad-
conduct discharge “was tantamount to withdrawal from that
specific provision of the original pretrial agreement, or in the
alternative, at least constituted a request to modify that term
of the agreement.” Id. at 670.
Parker petitioned this court for review of the lower
court’s refusal to grant the remedy he sought. The Government
did not certify any issues for appeal. In particular, the
Government did not certify an issue concerning the lower court’s
conclusion that the military judge erred by rejecting Parker’s
guilty plea. We granted review of Parker’s assigned issue as to
whether he should have received the benefit of his pretrial
agreement once the Court of Criminal Appeals found error by the
military judge. The majority opinion now overturns the Court of
Criminal Appeals’ decision based upon its conclusion that the
lower court erred when it held that the military judge
3
United States v. Parker, No. 05-0072/MC
erroneously rejected Parker’s plea –- an issue that was not
properly raised before this court.
DISCUSSION
I. Error By The Military Judge and The Law of The Case
Doctrine
The majority finds that the Court of Criminal Appeal’s
decision that the military judge erred was clearly erroneous
because the military judge was “well within his discretion in
deciding not to accept the plea.” As noted by the majority, the
Government did not appeal the ruling of the court below. We
have previously held that where the correctness of a ruling by
the Court of Criminal Appeals has not been challenged by the
appellant or by certification by the Judge Advocate General
(TJAG), “we will treat it as the law of th[e] case.” United
States v. Grooters, 39 M.J. 269, 272-73 (C.M.A. 1994). The
ruling of the lower court becomes binding on the parties.
United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986). The
ruling will not be reconsidered by this court unless “the lower
court’s decision is ‘clearly erroneous and would work a manifest
injustice’ if the parties were bound by it.” United States v.
Doss, 57 M.J. 182, 185 n.* (C.A.A.F. 2002).
The majority states that since the law-of-the-case doctrine
is a discretionary doctrine, they will decline to apply it when
that application would be contrary to the sound administration
4
United States v. Parker, No. 05-0072/MC
of justice. As noted, prior to this decision, the standard for
applying the law-of-the-case doctrine was whether it was
“clearly erroneous and would work a manifest injustice.” Id.In reaching this finding the majority seemingly abandons that
standard and fails to recognize that establishing manifest
injustice is a heavy burden and can only be proven in the most
unusual of cases. See, e.g., United States v. Moran, 393 F.3d
1, 8 (1st Cir. 2004) (“[A] litigant seeking to fit within [the]
confines [of the manifest injustice exception] must negotiate a
steep uphill climb.”); Ellis v. United States, 313 F.3d 636, 648
(1st Cir. 2002) (“[A] finding of manifest injustice requires a
definite and firm conviction that a prior ruling on a material
matter is unreasonable or obviously wrong.”). It is difficult
to find manifest injustice where the proper remedy2 places the
Government and Parker in exactly the same position they had
voluntarily agreed to prior to the military judge’s rejection of
the plea.
Contrary to the conclusion of the majority, there is no
manifest injustice here. The Government had every opportunity
to certify the Court of Criminal Appeals’ finding of error by
the military judge as an issue for appeal. Counsel for the
2
Recognizing the Court of Criminal Appeal’s reversal of the
military judge as the “law-of-the-case”, then reinstating the
pretrial agreement is the proper remedy.
5
United States v. Parker, No. 05-0072/MC
Government admitted at oral argument that the Government made a
conscious decision not to certify this issue for appeal.
In addition, the Government first signaled its intent to argue
that the military judge erred in a citation of supplemental
authority submitted only five days prior to oral argument.3 The
Government, fully aware of this potential issue, made the
conscious decision not to appeal the lower court’s decision and
failed even to raise the issue in its briefs.4 These last minute
tactics effectively blindsided both the opposing party and the
court.
As the Government made a tactical decision to defend
against Parker’s claims rather than certifying any of its own,
the decision of the Court of Criminal Appeals to overturn the
military judge’s refusal to accept Parker’s plea is the law of
the case. See United States v. Simmons, 59 M.J. 485, 488
3
On October 6, 2005 the Government, for the first time,
submitted authority consisting of four cases which addressed the
law-of-the-case doctrine and stated that the “Government will
address the cases above, and will argue that this Court is not
bound by the NMCCA’s decision that the military judge abused his
discretion by rejecting appellant’s plea of guilty to missing a
movement.” Submission of additional authority is appropriate to
direct the court’s attention to authority relevant to granted
issues, not to introduce new appellate issues.
4
The majority opinion exaggerates the lack of an incentive for
the Government to appeal as the Government has certified issues
for appeal to this court in cases where they have prevailed at
the lower court. See United States v. Long, 61 M.J. 326(C.A.A.F. 2005) (certificate for review filed). Moreover, by
adopting a subjective “lack of incentive” standard, the majority
removes any incentive the Government might have in the future to
appeal or certify an issue for review in a timely manner.
6
United States v. Parker, No. 05-0072/MC
(C.A.A.F. 2004) (finding no manifest injustice where the
Government did not certify any challenge to the Court of
Criminal Appeals’ ruling); United States v. Kreutzer, 61 M.J.
293, 295 n.2 (C.A.A.F. 2005) (noting that lower court’s ruling
is the law of the case where the TJAG has the opportunity to
bring the lower court’s ruling before this court and chooses not
to do so). By adopting “contrary to the sound administration of
justice” and “lack of incentive” standards and finding that the
law of the case doctrine does not apply in this case, the
majority has significantly altered, if not eliminated, that
doctrine and the “manifest injustice” standard from our
jurisprudence. The new standard opens the door for the
Government, at the last stages of the appellate process, to
raise issues that the appellant and this court had thought were
resolved at the lower court. This is not a result that I can
accept or endorse.
II. Alternate Solution
Rather than eviscerate the law-of-the-case doctrine, a
better approach is to address the underlying rule of procedure
to ensure that both parties have the opportunity to
appropriately raise pertinent issues in a timely manner.
Consideration should be given to revising C.A.A.F. R. 19(b).5
5
United States Court of Appeals for the Armed Forces, Rules of
Practice and Procedure (as amended through October 1, 2004).
7
United States v. Parker, No. 05-0072/MC
Under C.A.A.F. R. 19(b), the Government has thirty days in which
to certify an issue to this court while under C.A.A.F. R. 19(a),
an appellant has sixty days in which to petition for a grant of
review. In many cases a judgment or order may be favorable to
the Government on one claim or issue and unfavorable on another.
To avoid further litigation the Government may be content to
accept the favorable portion of the ruling and live with the
unfavorable portion. If this court subsequently grants one or
more of an appellant’s issues, the government is not allowed to
raise new issues unless the lower court’s decision is “clearly
erroneous and would work a manifest injustice” if the parties
were bound to it. Doss, 57 M.J. at 185 n.*.
If the Government were provided with the right to
essentially cross-appeal from granted issues, Government counsel
would not need to peremptorily certify issues in split decision
cases to protect itself against a possible appeal by the
defendant. I therefore recommend that C.A.A.F. R. 19(b) be
revised to allow that a certificate for review shall be filed
with the court no later than thirty days from the date of the
decision of the Court of Criminal Appeals or thirty days from
the date on which this court grants review of an issue raised by
an appellant, whichever is later.
8
United States v. Parker, No. 05-0072/MC
III. Remedy
Although I conclude that the Court of Criminal Appeals’
ruling on the military judge’s error is the law of the case, I
do not accept the lower court’s legal conclusion that no remedy
is required. Parker initially agreed to plead guilty to
unauthorized absence (AWOL) and missing a movement by neglect.
In return the convening authority agreed to suspend any
confinement over thirty days and any punitive discharge. When
the military judge rejected Parker’s guilty plea to the missing
movement charge, the Government withdrew from the pretrial
agreement and it no longer had any effect. Parker was tried on
the missing a movement by design charge and found guilty. At
sentencing, with no protection from a pretrial agreement, Parker
attempted to trade a punitive discharge for less time in
confinement. He was sentenced to five months of confinement and
a bad-conduct discharge. Before the convening authority, he
again tried to trade the bad-conduct discharge for a lesser
period of confinement.
Since the Court of Criminal Appeals reversed the decision
of the military judge that prompted the voiding of the pretrial
agreement, Parker now asks that the agreement be reinstated and
its terms enforced, including the suspension of a bad-conduct
discharge. The majority stresses that after the pretrial
agreement was voided, Parker asked on three occasions for a bad
9
United States v. Parker, No. 05-0072/MC
conduct discharge, which in the majority’s view is a change of
position that should be held against him. However, it is common
for parties to change position in response to differing
decisions from trial and appellate courts.
It defies logic to conclude that Parker, by asking for a
particular punishment based on the current status of his case,
modified or withdrew from a pretrial agreement that was not in
existence. Parker’s unsworn statement and his clemency requests
were made in the context of the case at that time. He was not
attempting to modify the pretrial agreement because there was no
pretrial agreement to modify. He was simply doing what he
thought best given the circumstances.
As the military judge erred in rejecting Parker’s plea, we
must put the parties back in the relative positions they held
before the error was made. See Penister, 25 M.J. at 152-53
(reinstating pretrial agreement where convening authority
withdrew from agreement based on erroneous ruling by the
military judge); see also United States v. Clayton, 25 M.J. 888,
889 (A.C.M.R. 1988) (holding that appellant is entitled to the
benefit of his pretrial agreement when the Government withdrew
from the agreement based on an erroneous ruling by the military
judge).
The Government made an informed decision not to appeal the
Court of Criminal Appeal’s ruling that the military judge erred
10
United States v. Parker, No. 05-0072/MC
in rejecting Parker’s guilty plea and it is therefore the law of
the case. The parties should be returned to the position they
were in prior to that error. I would reinstate the pretrial
agreement. Parker should have the opportunity to plead guilty
to AWOL and missing movement by neglect and the convening
authority should suspend any confinement in excess of thirty
days and also suspend any punitive discharge.
11