UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
LIND, COOK, and KRAUSS
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 JOSE A. PABON, JR.
United States Army, Appellant
ARMY 20120874
Headquarters, 1st Cavalry Division
James L. Varley, Military Judge
Colonel R. Tideman Penland, Jr., Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Timothy Kotsis, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Captain Daniel M. Goldberg, JA (on
brief).
21 August 2014
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of three specifications of desertion (two terminated by
apprehension) in violation of Article 85, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. § 885 (2006). The military judge sentenced appellant
to a bad-conduct discharge, confinement for six months, and forfeiture of $900.00
pay per month for six months. Pursuant to a pretrial agreement, the convening
authority approved only so much of the sentence as provided for a bad-conduct
discharge, confinement for four months, and forfeiture of $900.00 pay per month for
six months. The convening authority also credited appellant with 55 days against
the sentence to confinement.
This case is before the court pursuant to Article 66, UCMJ. Appellant raises
one assignment of error, which we find is without merit. In conducting our Article
66(c), UCMJ, review, we identified one error not raised by appellant that merits
discussion but no relief.
PABON—ARMY 20120874
Appellant pleaded guilty to three specifications of desertion: 13 April 2010 –
20 June 2010 (Specification 1); 16 September 2010 – 15 December 2011
(Specification 2); and 18 May 2012 – 23 July 2012 (Specification 3).
Appellant’s plea agreement contained a clause requiring appellant to “waive
all motions other than a motion to challenge the jurisdiction of the court-martial and
violations of [his] right to speedy trial.” (Emphasis added). During the inquiry into
the providence of appellant’s guilty plea, the military judge discussed the
ramifications of this clause with appellant and his defense counsel. Although the
clause did not require appellant to waive speedy trial motions, the colloquy between
the military judge, defense counsel, and appellant demonstrates that all three
believed the clause did require appellant to waive any speedy trial motion pursuant
to Rule for Courts-Martial [hereinafter R.C.M.] 707. *
R.C.M. 705(c)(1)(B) provides that “a term or condition in a pretrial agreement
shall not be enforced if it deprives the accused of . . . the right to a speedy trial . . . .”
Although appellant’s pretrial agreement did not contain a term that deprived
appellant of the right to a speedy trial, the military judge erred in interpreting the
waiver clause and informing appellant that the pretrial agreement required appellant
to waive a speedy trial motion pursuant to R.C.M. 707.
When a pretrial agreement contains an impermissible term waiving appellant’s
right to make speedy trial motions, to prevail on appeal appellant must “set forth
sufficient information to show a colorable speedy trial claim.” United States v.
McLaughlin, 50 M.J. 217, 218 (C.A.A.F. 1999). We will apply the same standard to
the facts of this case.
We conclude appellant was not prejudiced by the error because, as defense
counsel advised the military judge, appellant had no viable R.C.M. 707 speedy trial
claim. The parties entered into a stipulation of fact stating that an original charge
sheet was preferred against appellant on 4 May 2012 and dismissed on 10 August
2012; appellant was apprehended on a deserter warrant on 23 July 2012; and the
current charge sheet was preferred against appellant on 8 August 2012. Appellant
was arraigned on 13 September 2012. The time between the 4 May 2012 preferral of
the original charge sheet and dismissal on 10 August 2012 is 98 days and includes
66 days of excludable delay during appellant’s third desertion. See R.C.M. 707(c)
(“All periods of time during which . . . the accused is absent without authority . . .
shall be excluded . . . .”). The time between appellant’s 23 July 2012 apprehension
*
During the colloquy between the military judge, defense counsel, and appellant,
trial counsel sat by silently, making no attempt to clarify the clause or to correct the
military judge’s misunderstanding of it.
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PABON—ARMY 20120874
and 13 September 2012 arraignment on the current preferred charge sheet was
52 days. Both periods are well within 120 days as required by R.C.M. 707.
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk
Clerk of
of Court
Court
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