United States v. Shrum

OPINION OF THE COURT

COOK, Judge:

Appellant was convicted by a general court-martial, in accordance with her pleas, of stealing mail matter, a violation of Article 134, Uniform Code of Military Justice (UCMJ) (10 U.S.C. § 934) and of forgery, an infringement of Article 123, UCMJ (10 U.S.C. § 923). Her approved sentence is noted above.

The members of this Court are unanimous in holding that the theft from the mails, and the forgery of the postal form contemporaneous with and in furtherance of this larceny, are multiplicious for sentencing purposes under the “single integrated transaction” theory. See United States v. Burney, 21 U.S.C.M.A. 71, 44 C.M.R. 125 (1971) and the cases cited therein.

However, the consequences of our unanimity on the multiplicity issue has served to generate a division concerning the appropriate disposition of this case.

As noted earlier, the appellant pled guilty. It is obvious from the record that all parties to the trial were under the impression that the maximum sentence included a period of confinement for ten years. Appellant’s plea was bottomed on, received and accepted under, this erroneous belief. Because the offenses are multiplicious for sentencing purposes, the correct maximum as to the confinement portion of the sentence is, and was, five years. Ergo, we are faced with a factual situation similar to that contained in United States v. Harden, 24 U.S.C.M.A. 76, 51 C.M.R. 249, 1 M.J. 258 (1976).

Judge DeFord, in his dissenting opinion in this case, applies the language to be found in United States v. Harden, supra, that the standard for determining whether or not a plea is based on a substantial misunderstanding is “elastic” and that it “probably cannot be, defined with the exactitude of a mathematical equation”1 and concludes that the appellant’s misunderstanding was insubstantial.

In his opinion, and other recent cases of similar purport,2 considerable reliance is *998placed upon the quantum portion of the pretrial agreement to establish that the misunderstanding as to the correct maximum sentence was not substantial. Such an approach appears to state that the in-court misunderstanding is not substantial unless it can be said that the out-of-court pretrial agreement as to the sentence was to some degree inappropriate. We do not believe that is the correct interpretation or application of the term “substantial misunderstanding”.

The genesis of our reluctance to subscribe to that interpretation arises from the universal caution with which Congress3 and the courts have dealt with guilty pleas. A summary of the judicial attitude is to be found in the following quote from McCarthy v. United States, 394 U.S. 459, at page 466, 89 S.Ct. 1166, at page 1171, 22 L.Ed.2d 418 (1969):

. .A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458,
June 1976); United States v. Anderson, N.C.N. 76 0283, 1 M.J. 688 (N.C.R. 25 June 1976). 464, 58 S.Ct. 1019, 82 L.Ed. 1461, 1466, 146 A.L.R. 357 (1938). Consequently, if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.”

The foregoing quote was cited with approval by the Court of Military Appeals in United States v. Care, 18 U.S.C.M.A. 535, 538,40 C.M.R. 247, 250 (1969). This attitude of unrelenting concern is evidenced in our system by innumerable Court of Military Appeals decisions.4

Additionally, we are markedly influenced by our reading of the Court of Military Appeals opinions involving factual situations generally similar to the case sub judice.5 With one exception, as far as we can determine, that Court has never relied upon the terms of a pretrial agreement to determine whether a variance between the announced maximum sentence and the correct maximum sentence was substantial or whether or not an accused was prejudiced by such an incorrect advice as to the maximum sentence.6 It seems logical to con-*999elude from these cases that the Court of Military Appeals feels the critical question in resolving these situations is “what did the appellant believe the maximum sentence to be (at the time he negotiated his pretrial agreement and) at the time of the trial when he entered his guilty plea”? If, when comparing the answer to that question with the correct maximum, you discover a substantial difference you have a “substantial misunderstanding”. Consequently, an improvident plea must follow irrespective of the terms' of the pretrial agreement. Certainly this has been the approach taken by the Court of Military Appeals since United States v. Towns, supra, decided in 1974, and our approach accords with the views expressed by Chief Judge Fletcher in his concurring opinion in United States v. Harden, supra.

Applying the decisional law as we read it, we conclude that appellant’s guilty plea was based on a substantial misunderstanding as to the correct legal maximum imposable for her crimes and her plea, therefore, was improvident.

The findings of guilty and the sentence are set aside. A rehearing may be ordered.

Senior Judge BAILEY concurs.

. United States v. Harden, 24 U.S.C.M.A at 78, 51 C.M.R. at 251, 1 M.J. at 260.

. United States v. Brotherton, 2 M.J. 843 (A.C.M.R. 23 April 1976); United States v. Tenney, N.C.N. 75 2969, 1 M.J. 965 (N.C.R. 24

. See the citations from the hearings on the Uniform Code of Military Justice to be found in United States v. Chancelor, 16 U.S.C.M.A. 297, 36 C.M.R. 453 (1966).

. See for example United States v. Laliande, 22 U.S.C.M.A. 170, 46 C.M.R. 170 (1973); United States v. Cox, 22 U.S.C.M.A. 69, 46 C.M.R. 69 (1972); United States v. Trogiin, 21 U.S.C.M.A. 183, 44 C.M.R. 237 (1972); United States v. Veteto, 18 U.S.C.M.A. 64, 39 C.M.R. 64 (1968); United States v. Cummings, 17 U.S.C.M.A. 376, 38 C.M.R. 174 (1968); United States v. Chancelor, supra; United States v. Drake, 15 U.S.C. M.A. 375, 35 C.M.R. 347 (1965); United States v. Welker, 8 U.S.C.M.A. 647, 25 C.M.R. 151 (1958); United States v. Allen, 8 U.S.C.M.A. 504, 25 C.M.R. 8 (1957); and, cases cited in the following footnote.

. United States v. Frangoules, 1 M.J. 467 (3 September 1976); United States v. Harden, supra; United States v. Bowers, 24 U.S.C.M.A. 5, 51 C.M.R. 5, 1 M.J. 200 (1975); United States v. Towns, 22 U.S.C.M.A. 600, 48 C.M.R. 224 (1974); United States v. Kilgore, 22 U.S.C.M.A. 67, 46 C.M.R. 67 (1972); United States v. Darusin, 20 U.S.C.M.A. 354, 43 C.M.R. 194 (1971); United States v. Pearson, 19 U.S.C.M.A. 379, 41 C.M.R. 379 (1970); United States v. Murphy, 18 U.S.C.M.A. 571, 40 C.M.R. 283 (1969); United States v. Turner, 18 U.S.C.M.A. 55, 39 C.M.R. 55 (1968); United States v. Windham, 15 U.S.C.M.A. 523, 36 C.M.R. 21 (1965); United States v. Hutton, 14 U.S.C.M.A. 366, 34 C.M.R. 146 (1964); United States v. Clark, 12 U.S.C. M.A. 363, 30 C.M.R. 363 (1961); United States v. Downing, 11 U.S.C.M.A. 650, 29 C.M.R. 466 (1960); United States v. Zemartis, 10 U.S.C. M.A. 353, 27 C.M.R. 427 (1959); United States v. Hamill, 8 U.S.C.M.A. 464, 24 C.M.R. 274 (1957).

. It is possible to read the Kilgore, supra, opinion to mean that the quantum portion of the pretrial agreement can be consulted in arriving at a determination of prejudice, but we think the real reliance in that case was placed upon *999the relatively insubstantiality of the misunderstanding, i. e., 22‘A years confinement versus 26 years or a 3V2 year (approximately 15%) inaccuracy. We believe the reference to the terms of the agreement was a makeweight. Two puzzling cases among those cited in footnote 5, are Pearson and Murphy. Both are guilty pleas involving the use of erroneous máximums at trial resulting from a failure of the trial judge to recognize multiplicious offenses. In neither decision is improvidency even mentioned. Reassessment is the remedy applied. In Pearson the problem involved a 2 year vs 1 year error, while Murphy involved a 10 year vs 5 year mistake. While the Govemment would have us conclude that these holdings stand for the proposition that these differentials, i. e., 2 v 1 and 10 v 5, are not substantial enough to constitute a prejudicial misunderstanding requiring the improvidencing of a guilty plea, we are reluctant to arrive at that conclusion on such anemic evidence. Had the decisions even alluded to the question of improvidency we would be more favorably inclined to adopt the Government’s position. As they did not, we count them as aberrations. In point of fact, the balm which the Court of Military Appeals has applied to this error has, until recent years, been desultory at best.