United States v. Perlman

Senior Judge KEATING,

dissenting:

A term or condition of a pretrial agreement shall not be enforced if it is not freely and voluntarily entered into and if it deprives an accused of certain fundamental rights. R.C.M. 705(c)(1)(B). Provided the requirements of R.C.M. 1109 are complied with, a promise by an accused to conform to speci*618fied conditions of probation before action by the convening authority is an enforceable condition of a pretrial agreement and may be proposed by either party. R.C.M. 705(c)(2)(D). Such a promise is listed, along with several others, as “additional conditions” that subsection (c)(1)(B) of R.C.M. 705 does not prohibit either party from proposing.

The majority acknowledges the list of permissible terms and conditions in R.C.M. 705(e)(2) “may not be an exhaustive list,” but maintains, nevertheless, that compliance with 705(c)(2)(D) is required. The analysis to R.C.M. 705(c)(2) says the matters listed in it have been judicially sanctioned. MCM, app. 21, Rule 705 analysis, at 39. I do not read R.C.M. 705 as having, in effect, ended the process of judicial review by which pretrial agreements have evolved. The question we should address is whether the procedure agreed to by the parties in the pretrial agreement before us is prohibited by R.C.M. 705(c)(1). Was it freely and voluntarily entered into by the accused and did it deprive him of an enumerated fundamental right?

Our superior court has addressed the issue raised in this case in two decisions. The earlier one held that no hearing at all is required if the accused is appraised of the information against him in the staff judge advocate’s review (now recommendation) and given an opportunity to rebut or explain. United States v. Goode, 1 M.J. 3 (C.M.A.1975). A few years later, a different majority wrote that “an additional vice in the appellant’s post-trial codal violation clause is that it side-steps the key requirement of Article 72 ... a suspension hearing.” United States v. Dawson, 10 M.J. 142, 148 (C.M.A.1981). The-drafters of the Manual cite Dawson in the analysis as the primary basis for R.C.M. 705(c)(2)(D).

Neither case says that the convening authority must both hold a hearing at which an accused is provided due process, and in addition, forward the hearing report and a recommendation to the officer exercising general court-martial jurisdiction for decision. There are procedures other than the two stage process of Article 72 and R.C.M. 1109 that protect the rights of the accused. R.C.M. 705(c)(2) has not ended the judicial process by which pretrial agreements have evolved in the military justice system. See, e.g., United States v. Weasler, 43 M.J. 15 (1995)(waiver of unlawful command influence motion permissible).

I would allow an accused substantial latitude to negotiate for sentence relief within the limits of R.C.M. 705(c)(1) and not read R.C.M. 705(e)(2) as anything more than a list, not yet complete, of provisions that have been judicially sanctioned in the past and to which other provisions can and will be added in the future. Therefore, I respectfully dissent.