UNITED STATES, Appellant
v.
Daniel R. PERRON, Boatswain’s Mate Second Class
U.S. Coast Guard, Appellee
No. 02-0168
Crim. App. No. 1115
United States Court of Appeals for the Armed Forces
Argued October 16, 2002
Decided February 12, 2003
BAKER, J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and ERDMANN, JJ., joined. CRAWFORD, C.J.,
filed a dissenting opinion.
Counsel
For Appellee: Lieutenant Daniel J. Goettle (argued); and
Commander Peter J. Ganser.
For Appellant: Commander Jeffrey C. Good (argued).
Military Judge: B. Schroder
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Perron, No. 02-0168/CG
Judge BAKER delivered the opinion of the Court:
Appellant was tried by a special court-martial
composed of a military judge alone. In accordance with his
pleas, Appellant was convicted of one specification of
wrongful possession of a controlled substance and two
specifications of wrongful use of a controlled substance,
in violation of Article 112a, Uniform Code of Military
Justice [hereinafter UCMJ], 10 U.S.C. § 912a (2002). He
was sentenced to a bad-conduct discharge, confinement for
90 days, and a reduction to pay grade E-3. Consistent with
a pretrial agreement, the convening authority approved the
adjudged sentence but suspended all confinement in excess
of 60 days for a period of six months.
The Coast Guard Court of Criminal Appeals set aside
the convening authority’s action due to a mutual
misunderstanding regarding a material term in the pretrial
agreement. United States v. Perron, 53 M.J. 774, 777 (C.G.
Ct. Crim. App. 2000) (Perron I). On remand, the convening
authority approved only the bad-conduct discharge and the
reduction to E-3.
On November 1, 2001, the Court of Criminal Appeals
again reviewed the convening authority’s action. United
States v. Perron, 57 M.J. 597 (C.G. Ct. Crim. App. 2001)
(Perron II). It affirmed the findings of guilty and the
2
United States v. Perron, No. 02-0168/CG
bad-conduct discharge, but set aside the reduction to pay
grade E-3, restoring all rights, privileges, and property
related to portions of the sentence that had been set
aside. Id. at 599.
This Court granted review on the following issues:
I. WHERE THERE HAS BEEN A FAILURE OF A MATERIAL TERM IN A
PRETRIAL AGREEMENT, MAY AN APPELLATE COURT FASHION AN
ALTERNATIVE REMEDY OF ITS OWN CHOOSING, CONTRARY TO
APPELLANT’S WISHES, OR MUST IT AFFORD AN APPELLANT THE
OPPORTUNITY TO WITHDRAW FROM THE AGREEMENT?
II. WHETHER THE LOWER COURT ERRED BY FAILING TO FIND THAT
APPELLANT’S PLEAS OF GUILTY PURSUANT TO A PRETRIAL
AGREEMENT WERE VOLUNTARY BEYOND A REASONABLE DOUBT,
WHERE THE COURT CONCLUDED THERE HAD BEEN A FAILURE OF
A MATERIAL TERM OF THE AGREEMENT.
We reverse the Court of Criminal Appeals’ decision.
Because we resolve this case on Issue I, we do not reach
the second granted issue.
Background
On January 15, 1999, Appellant and the Government
entered into a pretrial agreement. One provision of that
agreement required the convening authority to waive all
automatic forfeitures and pay those to Appellant’s family
during his confinement.1 After Appellant began serving his
confinement, trial defense counsel informed Appellant that
1
Paragraph three of the Maximum Sentence Appendix to [the] Memorandum
of Pretrial Agreement provided: “Forfeiture or Fine: Any adjudged fine
or forfeiture will be disapproved. In accordance with Art. 58(b),
UCMJ, the Convening Authority agrees to waive any or all forfeitures
and pay the dependents of the accused.”
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United States v. Perron, No. 02-0168/CG
he had entered a no-pay status upon his confinement due to
the expiration of his enlistment term prior to trial.2 As a
result, his family did not receive the agreed-upon payments
during his confinement.
On March 8, 1999, trial defense counsel sent a
clemency request to the convening authority, alerting him
to the problem. In the request, Appellant’s counsel asked
the convening authority to correct the mistake:
Please consider BM2 Perron’s family in this
matter. The family cannot survive financially
without the aid of BM2 Perron. Granting relief
from the pay provisions or immediate release from
jail in order to gain immediate employment are
the only options that allow for the financial
relief his family desperately needs.
On March 11, 1999, the convening authority responded
to trial defense counsel’s plea for relief as follows:
1. I reviewed your clemency request of 8 Mar
99. Upon review, and in accord with Article
58b, UCMJ, I have acted upon your concerns.
I immediately sent a letter requesting a
waiver of all forfeitures (including
automatic forfeitures) in the subject case
to USCG Human Resource Service and
Information Center (HRSIC) (a copy of which
was provided to you, see Encl. (1)).
2. Enclosure (2) provides the response from
HRSIC to the request. Unfortunately, due to
SN Perron’s status (involuntary extension
due to pending court-martial), he was in a
no-pay status when sentencing occurred and
the entire time he was in jail. Thus, there
were no forfeitures available to forfeit.
2
See Department of Defense,7A Financial Management Regulation Chapter
3, para. 030207C (1996).
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United States v. Perron, No. 02-0168/CG
As such, it is impossible to achieve the
desired result provided for in Article 58b.
I have made every attempt available and
acted as provided for in the Pre-Trial
Agreement. I have waived all forfeitures.
As a result of an administrative
distinction, however, the desired result of
having SN Perron’s family receive these
waived automatic forfeitures is impossible.
3. Further, I have reviewed your clemency
request as it relates to the immediate
release of SN Perron. I deny your sought
relief. I will, however, ensure this
request is reviewed again by the SJA and
myself once the record of trial is forwarded
for our respective reviews and my final
action.
Because the convening authority’s action did not
correct the misunderstanding regarding the forfeiture
provision, Appellant sought relief from the Coast Guard
Court of Criminal Appeals. The Court of Criminal Appeals
found that none of the trial participants, including the
military judge, realized that Appellant would enter a no-
pay status upon confinement because his enlistment expired
prior to trial.3 Perron I, 53 M.J. at 777. It also
determined that the forfeiture provision of the pretrial
agreement was a material term of the agreement, a
conclusion the Government has not challenged in this Court.
Id. The lower court therefore remanded the case to the
convening authority to either set aside the findings of
5
United States v. Perron, No. 02-0168/CG
guilty and the sentence or determine whether some other
form of alternative relief was appropriate. Id.
On remand, the convening authority modified the
sentence, approving only the bad-conduct discharge and the
reduction to E-3. Because the revised sentence did not
include confinement, the pay center determined that
Appellant was entitled to payment for the time he spent in
confinement, which by that time had been completed. The
pay center therefore paid Appellant $3,184.90, the amount
his family would have received had the forfeiture provision
been effective.
Unsatisfied with the convening authority’s action,
Appellant again appealed to the Court of Criminal Appeals
for relief. In his appeal, Appellant continued to argue
that his plea was involuntary. Perron II, 57 M.J. at 598.
The basis of his claim was that the convening authority’s
action in disapproving confinement and allowing for the
belated payment of the funds his family should have
received under the pretrial agreement was insufficient to
cure the failed material provision in the pretrial
agreement. Id. In other words, Appellant argued that he
would not have agreed to the pretrial agreement had he been
3
Indeed, the military judge erroneously assured trial defense counsel
during the providence inquiry that the provision waiving automatic
forfeitures would “kick in, as well, for the period of confinement.”
6
United States v. Perron, No. 02-0168/CG
offered the relief provided by the convening authority,
because payment of the forfeiture amount after confinement
did not compensate his family for the value the payments
would have had if they had been paid during his
incarceration. He claimed that the only proper relief was
for the Court of Criminal Appeals to either allow him to
withdraw his plea or accept his proposed relief--
disapproval of his bad-conduct discharge. Id. at 599.
Despite Appellant’s continued insistence that the
belated payment was not appropriate alternative relief, the
lower court cited United States v. Mitchell, 50 M.J. 79
(C.A.A.F. 1999), and held that it could provide alternative
relief to Appellant, even if doing so was contrary to his
wishes. Id. The court went on to hold that the belated
payment was “close enough to the action promised in the
pretrial agreement to constitute satisfaction of that
agreement, particularly if further reduction of the
sentence will allow for payment of additional money as a
substitute for interest.” Id. The Court of Criminal
Appeals therefore set aside the reduction from E-5 to E-3,
commenting, “This difference in pay should exceed any
reasonable interest calculation.” Id. Appellant then
petitioned this Court for relief.
7
United States v. Perron, No. 02-0168/CG
In his appeal before this Court, he continues to argue
that his pleas were involuntary. Citing Santobello v. New
York, 404 U.S. 257 (1971), he asserts that where an accused
pleads guilty in reliance on Government promises made in a
pretrial agreement, the plea can only be found to be
voluntary if the Government fulfills those promises. Where
the Government fails to fulfill those promises, Appellant
argues, the proper remedy is either specific performance,
withdrawal of the plea, or another remedy agreeable to the
accused. Although recognizing that this Court has approved
of “appropriate alternative relief,” Appellant contends
that imposing such relief on him against his will violates
his Fifth Amendment right to due process.
I
The issue in this case, therefore, is whether imposing
alternative relief on an appellant against his will, to
correct a failure of a material provision of a pretrial
agreement, due to a mutual misunderstanding, violates the
Due Process Clause of the Fifth Amendment. Courts have
long recognized that the decision to plead guilty is a
serious and consequential decision. The Supreme Court, for
instance, has said that “a plea of guilty is more than a
confession which admits that the accused did various acts;
it is itself a conviction; nothing remains but to give
8
United States v. Perron, No. 02-0168/CG
judgment and determine punishment.” Boykin v. Alabama, 395
U.S. 238, 242 (1969). A guilty plea is also a sobering
decision because it involves the waiver of a number of
individual constitutional rights, including the privilege
against compulsory self-incrimination, the right to a trial
by jury, and the Sixth Amendment right to confront one’s
accusers. McCarthy v. United States, 394 U.S. 459, 466
(1969). These concerns are no less important in our
military system of justice, where pleading guilty
constitutes a conviction and a waiver of the accused’s
trial rights. See United States v. Forester, 48 M.J. 1, 2-
3 (C.A.A.F. 1998); United States v. Care, 18 C.M.A. 535,
538-39 (1969).
Because of the consequences resulting from guilty
pleas, the Supreme Court has recognized the constitutional
necessity of ensuring that such pleas are entered into
voluntarily and knowingly, “with sufficient awareness of
the relevant circumstances and likely consequences.” Brady
v. United States, 397 U.S. 742, 748 (1970). Where a plea
is not knowing and voluntary, “it has been obtained in
violation of due process and is therefore void.” McCarthy,
394 U.S. at 466.
To ensure that the requirements of due process are
complied with, the federal civilian system and the military
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United States v. Perron, No. 02-0168/CG
system have created a number of protective measures to
ensure that pleas are entered into voluntarily and
knowingly. In the civilian system, Federal Rule of
Criminal Procedure 11 was created to help judges make “the
constitutionally required determination that a defendant’s
guilty plea is truly voluntary.” McCarthy, 394 U.S. at
465.
The military justice system imposes even stricter
standards on military judges with regards to guilty pleas
than those imposed on federal civilian judges. See United
States v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996) (noting
that Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2002),
requires military judges, unlike civilian judges, to
resolve inconsistencies and defenses during the providence
inquiry or “the guilty plea[] must be rejected”). In
United States v. Care, this Court imposed an affirmative
duty on military judges, during providence inquiries, to
conduct a detailed inquiry into the offenses charged, the
accused’s understanding of the elements of each offense,
the accused’s conduct, and the accused’s willingness to
plead guilty. 18 C.M.A. at 541-42. Care’s general mandate
to insure that pleas are voluntary is now contained in Rule
for Courts-Martial 910(d) [hereinafter R.C.M.] which
provides:
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United States v. Perron, No. 02-0168/CG
The military judge shall not accept a plea of
guilty without first, by addressing the accused
personally, determining that the plea is
voluntary and not the result of force or threats
or of promises apart from a plea agreement under
R.C.M. 705. The military judge shall also
inquire whether the accused’s willingness to
plead guilty results from prior discussions
between the convening authority, a representative
of the convening authority, or trial counsel, and
the accused or defense counsel.
See Forester, 48 M.J. at 3 (citing R.C.M. 910(d) for
the proposition that guilty pleas must be knowing and
voluntary).
While these protections address problems that could
arise during a providence inquiry, and indicate a
recognition of the overall importance of voluntary pleas,
they do not directly deal with circumstances affecting
pleas after the plea has been accepted;4 however, other
protections do.
It is fundamental to a knowing and intelligent plea
that where an accused pleads guilty in reliance on promises
made by the Government in a pretrial agreement, the
4
The notion that later circumstances may affect the voluntariness of a
plea once accepted is neither novel nor unique to military law. See,
e.g., United States v. Smith, 56 M.J. 271, 279 (C.A.A.F. 2002)
(holding, under United States v. Hardcastle, 53 M.J. 229 (C.A.A.F.
2000) and United States v. Williams, 53 M.J. 293 (C.A.A.F. 2000), that
the Government’s failure to fulfill a material term of an accepted
pretrial agreement made the appellant’s pleas improvident, warranting
relief); Hardcastle, 53 M.J. at 302; Williams, 53 M.J. at 295 (both
holding that the Government’s failure to fulfill a material promise
made in an accepted pretrial agreement rendered the accused’s pleas
improvident)(citing Santabello v. New York, 404 U.S. 257 (1971); United
States v. Bedania, 12 M.J. 373 (C.M.A. 1982)).
11
United States v. Perron, No. 02-0168/CG
voluntariness of that plea depends on the fulfillment of
those promises by the Government. See Santobello, 404 U.S.
at 262 (“[W]hen a plea rests in any significant degree on
a promise or agreement of the prosecutor, so that it can be
said to be part of the inducement or consideration, such a
promise must be fulfilled.”); Correale v. United States,
479 F.2d 944, 947 (1st Cir. 1973) (“Though a legitimate
prosecution promise does not render a guilty plea legally
involuntary, its fulfillment is a necessary predicate to a
conclusion of voluntariness when a plea ‘rests in any
significant degree’ on it.”) (quoting Santobello, 404 U.S.
at 262) (internal citations omitted).
Based on this principle, our Court has held in a line
of recent cases that where there is a mutual
misunderstanding regarding a material term of a pretrial
agreement, resulting in an accused not receiving the
benefit of his bargain, the accused’s pleas are
improvident. See 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).5 In such instances, we have held
5
While Hardcastle and Williams were adjudicated on the basis of
concessions, we accepted those concessions because they accurately
reflected the impact of a mutual misunderstanding of a material term on
the providency of a pretrial agreement. The principles relied upon in
Hardcastle and Williams are equally applicable to the circumstances of
this case.
12
United States v. Perron, No. 02-0168/CG
that remedial action, in the form of specific performance,
withdrawal of the plea, or alternative relief, is required.
See United States v. Smith, 56 M.J. 271, 279 (2002);
Mitchell, 50 M.J. at 82.
In this case, the Court of Criminal Appeals determined
that the forfeiture provision was a material term of the
pretrial agreement, relied upon by Appellant. Under our
decisions in Hardcastle and Williams, when it became
apparent that the material provision in the pretrial
agreement was ineffective, Appellant’s pleas became
involuntary and improvident, warranting relief. The
critical question in this case is whether a court of
criminal appeals or a convening authority can determine
that alternative relief renders a plea voluntary when an
appellant argues that such relief does not give him the
benefit of his bargain.
The Government asserts that appellate courts not only
have the power to fashion remedies other than specific
performance or withdrawal, it maintains that such relief
can be imposed upon an unwilling appellant so long as that
relief provides the appellant with the benefit of his
bargain. It cites as authority for this position, this
Court’s decisions in Mitchell, 50 M.J. at 83, and Smith, 56
M.J. at 273.
13
United States v. Perron, No. 02-0168/CG
In Mitchell, we were asked to address whether a
misunderstanding regarding a material term in a pretrial
agreement rendered an appellant’s guilty pleas improvident.
50 M.J. at 80. While that question was on appeal before
this Court, the Secretary of the Air Force approved
appellant Mitchell’s request for retirement. Id. at 81.
The Government argued that the Secretary’s action fairly
compensated Mitchell for any claim resulting from the
misunderstanding regarding the term in the pretrial
agreement. Id. at 82. Mitchell disagreed. He asserted
that he would have received the benefits regardless of his
conviction and that they were unconnected to the failed
term in his pretrial agreement. Id.
Because we saw the Secretary’s action as having the
potential to moot the granted issue in Mitchell, we
remanded the case to the Air Force Court of Criminal
Appeals to determine “whether, as a matter of law or
regular practice, a similarly situated airman would have
been placed on retired-pay status, as a matter of course,
without regard to any litigation concerning that airman’s
pretrial agreement.” Id. If so, we held that the “retired
pay [could not] be viewed as a means of enforcing the
pretrial agreement against [Mitchell].” Id. On the other
hand, if not, then we held open the possibility that the
14
United States v. Perron, No. 02-0168/CG
retirement pay “could be viewed as an adequate means of
providing appellant with the benefit of his bargain.” Id.
at 82-83. We went on to state that if the retirement pay
was not adequate relief, the Court of Criminal Appeals was
in a position to determine whether additional relief was
necessary to give Mitchell the benefit of his bargain. Id.
at 83.
In Smith, we again had occasion to decide whether an
accused had been deprived of the benefit of his bargain
because of a misunderstanding regarding the effect of a
term in his pretrial agreement. 56 M.J. at 273. Similar
to Appellant in this case, Smith pleaded guilty in exchange
for a Government’s agreement to waive automatic forfeitures
in favor of his family. Id. Because Smith’s enlistment
expired prior to his trial, the waiver provision became
ineffective. Id. at 276. Smith then argued that the term
was material and that failure of the term rendered his
pleas improvident. Id. at 277.
We agreed with Smith that the forfeiture provision was
a material term and held that because the Government had
not fulfilled its part of the agreement, Smith had not
received the benefit of his bargain. Id. at 279. We
therefore remanded the case to the Navy-Marine Corps Court
of Criminal Appeals to determine the appropriate relief.
15
United States v. Perron, No. 02-0168/CG
Id. In so doing, we stated that where “the bargained-for
benefit is outside the authority of the Government to
provide,” the Courts of Criminal Appeals are well situated
to “determine whether some ‘appropriate alternative relief’
is available ‘as an adequate means of providing appellant
with the benefit of his bargain.’” Id. at 279-80 (quoting
Mitchell, 50 M.J. at 83).
Neither Smith nor Mitchell however addressed the
proposition that appellate courts can impose alternative
relief on an unwilling appellant to rectify a mutual
misunderstanding of a material term in a pretrial
agreement. Those cases simply establish that there are
circumstances when alternative relief may be appropriate.
We now conclude that an appellate court cannot impose such
relief in the absence of the appellant’s consent.
II
The touchstone case on the appropriate remedies for a
failed material term in a plea agreement is Santobello v.
New York, 404 U.S. 257 (1971). In Santobello, the Supreme
Court suggested that where a material term of a pretrial
agreement fails, the proper remedy is either specific
performance or withdrawal of the plea. Specifically the
Court stated:
16
United States v. Perron, No. 02-0168/CG
The ultimate relief to which petitioner is
entitled we leave to the discretion of the state
court, which is in a better position to decide
whether the circumstances of this case require
only that there be specific performance of the
agreement on the plea, in which case petitioner
should be resentenced by a different judge, or
whether, in the view of the state court, the
circumstances require granting the relief sought
by the petitioner, i.e., the opportunity to
withdraw his plea of guilty.
Id. at 263.
Appellant argues that this language in Santobello
limits the relief available to a court to remedy a mutual
misunderstanding in a plea agreement to specific
performance or withdrawal. However, the Court in
Santobello did not expressly preclude the possibility that
other remedies might be appropriate in a particular case.
Nor did the Court address the military system of hybrid
sentencing, which incorporates penalties such as forfeiture
and discharge, as well as confinement. See Lane v.
Williams, 455 U.S. 624, 631 (1982) (refusing to address
whether remedies other than specific performance or
withdrawal would be authorized and appropriate in some
cases).
Several of the federal circuit courts have interpreted
Santobello as permitting imposition of a third type of
remedy where specific performance or withdrawal would be
meaningless or infeasible. See, e.g., Correale, 479 F.2d
17
United States v. Perron, No. 02-0168/CG
at 950 (applying a remedy other than specific performance
or withdrawal where such remedies would have been
“hollow”); United States v. Jureidini, 846 F.2d 964, 965-66
(4th Cir. 1988) (citing Correale for the idea that courts
have the power to order equitable relief, where
appropriate, to insure that a plea bargain is not
frustrated); United States v. O’Brien, 853 F.2d 522, 526
(7th Cir. 1988) (authorizing imposition of a specific
sentence where neither specific performance nor withdrawal
“would provide an appropriate remedy”).
However, the only circuit that has actually applied
this third type of remedy has said that, under Santobello,
“a plea agreement is ordinarily remedied either by specific
performance of the agreement or by allowing the defendant
to vacate his guilty plea;” and alternative remedies are
reserved for “extreme situations” where other remedies
“would be completely meaningless” or infeasible. Kingsley
v. United States, 968 F.2d 109, 113-14 (1st Cir. 1992).
See United States v. Garcia, 698 F.2d 31, 37 (1st Cir.
1983) (ordering the imposition of a specific sentence only
because withdrawal of the plea and specific performance
18
United States v. Perron, No. 02-0168/CG
served no useful purpose).6 The Government, in its
argument, places no such limitations on applying
alternative relief in the military system.
The Government goes a step further than the federal
circuits that have liberally construed Santobello. It
maintains that “[a] court of criminal appeals can remedy a
failure of a material term by ordering relief that the
appellant does not desire, so long as that remedy gives the
appellant the benefit of the bargain,” even where
withdrawal or specific performance are not meaningless or
infeasible. There are obvious benefits to this position.
For example, because the military sentencing system has a
number of sentencing options, a military court or convening
authority is more likely to be able to find a desirable
remedy as a substitute for an ineffective term in a
6
We do not need to address whether we adopt the view taken by these
circuits. It suffices to say that this case is not one in which
withdrawal would serve no useful purpose. Certainly, for the
Appellant, withdrawal may result in a more favorable outcome with
respect to some aspects of his sentence if, for example, the Government
elected not to retry him, if he reached another agreement with the
Government, or if he was ultimately acquitted. However, it is worth
noting that, unlike the civilian system, where the only sentencing
option is confinement, in the military system of sentencing, specific
performance and withdrawal will almost never be meaningless or
infeasible because convicted service members generally receive varied
sentencing punishments. For example, withdrawal in the military system
may not be meaningful relief as to confinement, due for example to an
accused’s already having served a confinement term. However,
withdrawal of a plea could allow an accused to challenge any other
punishments that have a continued impact on his or her livelihood, such
as forfeitures, a rank reduction, or a punitive separation. Thus, it
will be the unusual case where an accused will not have some meaningful
reason to seek withdrawal of his or her plea.
19
United States v. Perron, No. 02-0168/CG
pretrial agreement than a civilian court. Furthermore,
concerns over judicial economy and finality favor applying
remedies other than withdrawal. This is particularly true
in a military system of worldwide deployment where there
are no permanent tribunals to supervise the implementation
of pretrial agreements. Applying alternative relief could
therefore avoid the difficulty of reconvening a court-
martial for retrial. For these reasons, we recognized in
Mitchell and Smith that alternative relief may be
appropriate in certain circumstances.
However, weighted against the benefits of imposing
alternative remedies on an unwilling appellant are concerns
about the voluntariness of pleas and the constitutional
rights afforded an accused. Imposing remedies on an
unwilling appellant after the conclusion of a providence
inquiry intrudes upon an accused’s decision to plead
guilty. When an accused pleads guilty, he waives a number
of constitutional rights. These rights are individual
rights and can, in most circumstances, only be exercised or
waived by the accused. See McCarthy, 394 U.S. at 466. An
accused can use them wisely or unwisely, but they are the
accused’s to exercise or waive. When an appellate court
substitutes its own remedies in place of negotiated plea
terms, it steps into the accused’s shoes and is in effect
20
United States v. Perron, No. 02-0168/CG
renegotiating the accused’s plea agreement and waiving his
rights. This, an appellate court cannot do without the
accused’s consent.
Compelling an accused to accept unwanted remedies as
relief for a failed plea agreement may also result in
erroneous conclusions of voluntariness. Determining
whether a plea is voluntary is by no means an exact
science. But an accurate determination is more likely to
result where the accused himself assures the court that his
plea is voluntary. Where the accused does not agree that a
particular form of relief rectifies a failed material term
and provides him with the benefit of the bargain--and
therefore calls into question the voluntariness of the
guilty plea--we are skeptical that an appellate court
could, nevertheless, determine with a necessary degree of
certainty that the accused would have pleaded guilty had he
been offered the relief he is ultimately being compelled to
accept. Where the failed term in the agreement involves
pure economic concerns, finding relief of equal value is
possible. But where the promised benefit relates to non-
economic concerns--e.g. the immediate care of a family--or
where the promise has indeterminable value, determining the
“benefit” of the bargain becomes a guessing game, and may
result in undervaluing the promised benefit to the accused.
21
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The present case provides an example of this
situation. Appellant pleaded guilty in exchange for the
Government agreeing to provide his family with income while
he was incarcerated. That agreement was not fulfilled in
this case. Now the government maintains that paying
Appellant $3,184.90 plus interest will fully compensate
him. However, that assertion ignores the timing of the
payment, which Appellant argues was as material as the
amount of money promised in the agreement. Significantly,
the Court of Criminal Appeals found that the third
paragraph of the agreement in this case appeared to address
this objective. Perron I, 53 M.J. at 774. At this stage,
Appellant continues to maintain that payment in full does
not compensate his family for the present value of
receiving the money during his incarceration.
Authorizing courts to impose alternative relief may
also effectively do away with withdrawal as a form of
relief. Courts, as well as convening authorities, have an
obvious interest in judicial efficiency and finality.
Where a conviction is based on a guilty plea, courts are
often loath to set aside that plea because retrial is
inefficient and burdensome. Where courts are able to
simply craft some form of “suitable” relief to avoid
retrial, they might be inclined to impose such relief even
22
United States v. Perron, No. 02-0168/CG
where withdrawal is the more appropriate remedy. But the
issue in this case is not only about relief. This case
underscores the point that the remedy must go beyond simply
making one whole; rather, remedies for the failure of a
material term in a pretrial agreement must ultimately
support a conclusion that the plea was voluntary. Imposing
alternative relief on an unwilling appellant does not do
this.
We therefore hold that imposing alternative relief on
an unwilling appellant to rectify a mutual misunderstanding
of a material term in a pretrial agreement violates the
appellant’s Fifth Amendment right to due process.7 An
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--and may
remand the case to the convening authority to determine
7
This, of course, does not preclude a convening authority and an
accused from availing themselves post-trial of the opportunity to
renegotiate a new plea agreement to avoid a contest to the providence
of the plea. As we said in Smith,
where there has been a mutual misunderstanding as to a material
term, the convening authority and an accused may enter into a
written post-trial agreement under which the accused, with the
assistance of counsel, makes a knowing, voluntary, and
intelligent waiver of his right to contest the providence of his
pleas in exchange for an alternative form of relief.
56 M.J. at 279.
23
United States v. Perron, No. 02-0168/CG
whether doing so is advisable8--but it cannot impose such a
remedy on an appellant in the absence of the appellant’s
acceptance of that remedy.
That being said, a pretrial agreement is an agreement
between the convening authority and the accused. An
appellant cannot dictate the terms of a pretrial agreement
to the convening authority. This is true on review as well
as at the outset. In other words, if the parties cannot
agree on alternative relief, and specific performance is
not available, the result is to nullify the original
pretrial agreement, returning the parties to the status quo
ante. Behind all the back and forth of alternative relief,
this case is like any other where the plea is challenged as
improvident.
III
The Court of Criminal Appeals therefore erred when it
concluded that payment-in-full rendered Appellant’s plea
voluntary. Appellant should have been permitted to
withdraw his plea.
8
This does not mean that a convening authority can impose alternative
relief on an appellant. The same principles precluding the courts of
criminal appeals from imposing alternative relief on an appellant
prevent a convening authority from taking such action.
24
United States v. Perron, No. 02-0168/CG
The decision of the United States Coast Guard Court of
Appeals is reversed. The findings and sentence are set
aside. The record of trial is returned to the General
Counsel of the Department of Transportation for action
consistent with this opinion. A rehearing may be ordered.
25
United States v. Perron, No. 02-0168/CG
CRAWFORD, Chief Judge (dissenting):
The majority allows Appellant to withdraw from his pretrial
agreement even though he received everything he bargained for.
In doing so, the majority focuses on what Appellant says were
his personal reasons for entering into the agreement. The
majority does not, as it should, limit itself to identifying and
enforcing the terms of the agreement Appellant and the convening
authority actually reached. The end result contravenes strong
public policy and well established federal case law. For these
reasons, I respectfully dissent.
In Santobello v. New York, 404 U.S. 257 (1971), the Supreme
Court recognized that plea agreements are “essential” to
criminal justice, are “highly desirable,” and must be
“encouraged.” Id. at 260-61. This is because such agreements
lead[] to prompt and largely final disposition of
most criminal cases; . . . avoid[] much of the
corrosive impact of enforced idleness during pretrial
confinement for those who are denied release pending
trial; . . . protect[] the public from those accused
persons who are prone to continue criminal conduct
even while on pretrial release; and, by shortening
the time between charge and disposition, . . .
enhance[] whatever may be the rehabilitative
prospects of the guilty when they are ultimately
imprisoned.
Id. at 261. As we also have stated:
There are numerous benefits to pleading guilty
[in accordance with a plea agreement]. A plea of
guilty ensures the prompt application of correctional
measures; avoids delays; amounts to an acknowledgement
of guilt and acceptance of responsibility; and avoids
United States v. Perron, No. 02-0168/CG
the risks of a contested trial. Guilty pleas also
help preserve limited resources and relieve the
victim[s] of the trauma of testifying.
United States v. Forester, 48 M.J. 1, 3 (C.A.A.F. 1998)(footnote
omitted).
Thus, the benefits of plea agreements inure not only to
defendants, but also to society, and the interests of both must
be taken into account when deciding how best to remedy the
Government’s breach of a plea agreement. As a result, even
though a defendant waives fundamental constitutional rights when
he or she pleads guilty,1 the Supreme Court has made clear that
the Government’s breach of a plea agreement does not entitle a
defendant to withdraw from the agreement if the breach can be
remedied by specific performance.
In Santobello, as part of a plea bargain, the prosecutor
agreed to make no sentence recommendation. That promise was
breached, however, when another prosecutor in the case, unaware
of his predecessor’s promise, recommended the maximum sentence.
Defense counsel immediately objected, but to no avail, and the
trial judge imposed the maximum sentence. On these facts, the
Supreme Court held Santobello was entitled to relief, but left
to the discretion of the state court
1
By pleading guilty, a defendant waives the privilege against compulsory
self-incrimination, the right to trial by jury, and the right to confront
one’s accusers. See Boykin v. Alabama, 395 U.S. 238, 243 (1969); McCarthy v.
United States, 394 U.S. 459, 466 (1969).
2
United States v. Perron, No. 02-0168/CG
whether the circumstances of this case require only
that there be specific performance of the agreement
on the plea, . . . or whether, in the view of the
state court, the circumstances require granting the
relief sought by [Santobello], i.e., the opportunity
to withdraw his plea of guilty.
404 U.S. at 263 (footnote omitted).
The import of this language is clear. Even if a defendant
requests to withdraw from a plea agreement that has been
breached, specific performance of the agreement, when possible,
should be the remedy. See United States v. Gilchrist, 130 F.3d
1131, 1134 (3d Cir. 1997)(“[T]he district court, not the
defendant, is to decide in the first instance whether to grant
specific performance of the plea agreement or withdrawal of the
guilty plea.”); Peavy v. United States, 31 F.3d 1341, 1346 (6th
Cir. 1994)(“The choice between these remedies is not up to the
defendant but, rather, rests in the sound discretion of the
district court.”); Kingsley v. United States, 968 F.2d 109, 113
(1st Cir. 1992)(“The choice between these two remedies is not up
to the defendant; rather, it rests with the court. . . .
Specific performance, the less extreme remedy, is preferred.”)
(emphasis added); United States v. Tobon-Hernandez, 845 F.2d
277, 280-81 (11th Cir. 1988)(“Santobello did not hold that a
defendant’s choice of remedy for a breach of a plea agreement
was binding on the court. Rather, the remedy for a breach of a
plea agreement is within the sound discretion of the court.”).
3
United States v. Perron, No. 02-0168/CG
Therefore, the question becomes: Is specific performance of
the breached promise in Appellant’s case possible? And the
answer to that is yes.
At the outset, it is important to note what the breached
promise was -- and what it was not. It was not the type of
breached promise found in almost every post-Santobello federal
case dealing with this subject, i.e. – a promise by a prosecutor
to make or refrain from making a sentence recommendation to the
trial judge, to dismiss certain charges, to reduce certain
charges, or not to prosecute certain offenses. See Jay M.
Zitter, Choice of Remedies Where Federal Prosecutor has Breached
Plea Bargain – Post- Santobello v. New York, 120 A.L.R. Fed. 501
(1994 & 2002 Supp.). Instead, it was a promise unique to the
military justice system, i.e. - a promise to pay a sum of money.
In the military, a court-martial sentence that includes
more than six months’ confinement or a punitive discharge
results in the automatic forfeiture of pay and allowances due a
servicemember during confinement. See Art. 58b(a)(2002),
Uniform Code of Military Justice, 10 U.S.C. § 858b(a). However,
the convening authority (the person who enters into a plea
agreement with an accused)2 may waive these forfeitures for six
months and pay them to the dependents of an accused. See Art.
58b(b). Significantly, there is no requirement that the money
4
United States v. Perron, No. 02-0168/CG
be used for any particular purpose. Nor is there any accounting
or monitoring system in place to determine how the money is
used. Consequently, while the money certainly can be used for
support and necessities, it also can be used for many other
things.
Given these possibilities, and absent any evidence in the
record compelling a different result, this Court should not read
into the agreement between Appellant and the convening authority
anything more than what its express, unambiguous terms provide
for -– the payment of a sum of money. Plea agreements are
contracts, and the terms of those contracts are ascertained
using general principles of contract law. United States v.
Acevedo, 50 M.J. 169, 172 (C.A.A.F. 1999). Two of those
principles are as follows:
When the terms of a contract are unambiguous, the
intent of the parties is discerned from the four
corners of the contract. See United States v.
Liranzo, 944 F.2d 73, 77 (2d Cir. 1991). When the
contract is ambiguous on its face because a provision
is open to more than one interpretation, extrinsic
evidence is admissible to determine the meaning of the
ambiguous term. See United States v. Ingram, 979 F.2d
l179, 1184 (7th Cir. 1992), cert. denied, 507 U.S. 997
. . . (1993).
Id.; see also United States v. Nunez, 223 F.3d 956, 958 (9th
Cir. 2000).
2
See Rule for Courts-Martial 705(a).
5
United States v. Perron, No. 02-0168/CG
In Appellant’s case, the terms of the agreement (“waive any
or all forfeitures and pay the dependents of the accused”) are
unambiguous. Moreover, nothing else in the agreement, or the
discussion of the agreement on the record, suggests any
particular reason why the parties agreed on the payments, or any
agreement between them as to what the money could, or could not,
be used for. Cf. Kingsley, 968 F.2d at 111-12, 114-15
(discussion on the record between trial judge, prosecutor, and
defense counsel supplied additional meaning to written terms of
pretrial agreement). As a result, nothing supports a limiting
interpretation of this agreement that one of the mutually agreed
upon terms was “time was of the essence” in the payment of the
money.3
This case is not about what Congress intended when it
enacted Article 58b(b); and it is not about what personal
reasons may have motivated Appellant to enter into his pretrial
agreement. This case is about what both appellant and the
convening authority mutually intended and actually agreed to,
and about enforcing that agreement as a matter of good social
policy. That said, there is nothing in the unambiguous terms of
the written agreement, or anywhere else, that suggests the
convening authority was made aware of, understood, and agreed
3
See generally John D. Calamari & Joseph M. Perillo, The Law of Contracts
414-16 (4th ed. 1998)(only when time is of the essence does delay constitute
a material breach).
6
United States v. Perron, No. 02-0168/CG
that Appellant had a particular, immediate use to which he
wanted to put the money, and that the agreement would fail if
the money was not immediately paid. See United States v. Burns,
160 F.3d 82, 83 (1st Cir. 1998)(“[S]ignificant plea-agreement
terms should be stated explicitly and unambiguously so as to
preclude their subsequent circumvention by either party.”).4
Thus, the mutually agreed upon promise in this case was
nothing more than payment of a sum of money, and specific
performance of that unique promise was properly accomplished
through alternative means when (1) the convening authority
disapproved the sentence to confinement, resulting in a payment
to Appellant of $3,184.90, and (2) the Court of Criminal Appeals
set aside the sentence of reduction to E-3, which, if affirmed
by this Court, “will allow for payment of additional money as a
substitute for interest.” 57 M.J. at 599 (relying on United
States v. Mitchell, 50 M.J. 79, 82-83 (C.A.A.F. 1999), and
United States v. Olson, 25 M.J. 293, 298-99 (C.M.A. 1987)).
The lower court’s reliance on Mitchell was well placed.
Mitchell, and this Court’s most recent decision in
United States v. Smith, 56 M.J. 271 (C.A.A.F. 2002), are
controlling.5 In each, as in this case, the convening authority
4
I note that the pretrial agreement did state it would terminate in a variety
of other situations, demonstrating that when Appellant and the convening
authority agreed to such a condition, they included it in their agreement.
5
This Court’s decisions in United States v. Williams, 53 M.J. 293 (C.A.A.F.
2000), and United States v. Hardcastle, 53 M.J. 299 (C.A.A.F. 2000), are not
7
United States v. Perron, No. 02-0168/CG
and the appellant entered into a pretrial agreement where the
convening authority agreed to waive automatic forfeitures and
pay the money to the appellant’s dependents. In each, as in
this case, the convening authority could not fulfill that
promise because the appellant was not entitled to pay during the
period of his confinement. And in each, this Court allowed the
lower court to “determine whether some ‘appropriate alternative
relief’ [was] available ‘as an adequate means of providing [the]
appellant with the benefit of his bargain.’” Id. at 279
(quoting Mitchell, 50 M.J. at 83). Failing that, of course, the
appellant could withdraw his pleas of guilty.
There is no reason why the result in Appellant’s case
should be any different. The one fact distinguishing this case
from Mitchell and Smith is that Appellant states the only remedy
that will satisfy him is withdrawal of his pleas, whereas the
appellants in Mitchell and Smith were silent in that regard.
But that is a distinction without a difference, because the law
is abundantly clear -– the choice of remedy rests with the
courts, and the fact an otherwise appropriate remedy is not an
appellant’s remedy of choice does not compel a different result,
because it does not offend due process in light of society’s
compelling interest in supporting and enforcing plea agreements.
controlling. In each, the convening authority, through government appellate
counsel, agreed to the appellant’s withdrawal of his pleas as a remedy for
the convening authority’s breach. No such concession exists here.
8
United States v. Perron, No. 02-0168/CG
See Santobello, Gilchrist, Peavy, Kingsley, and Tobon-Hernandez,
all supra.
This case should be affirmed.
9