United States v. Smith

IN THE CASE OF

UNITED STATES, Appellee

v.

Richard B. SMITH, Sergeant
U.S. Marine Corps, Appellant

No. 01-0294
Crim. App. No. 98-2155

United States Court of Appeals for the Armed Forces

Argued October 4, 2001

Decided January 30, 2002

EFFRON, J., delivered the opinion of the Court, in which
GIERKE and BAKER, JJ., and SULLIVAN, S.J., joined. CRAWFORD,
C.J., filed an opinion concurring in part and in the result.

Counsel

For Appellant: Lieutenant Rebecca S. Snyder, JAGC, USNR (argued); Lieutenant
Commander Dale O. Harris, JAGC, USNR, and Lieutenant Glenn Gerding, JAGC,
USNR (on brief); Lieutenant Rebecca S. Snyder, JAGC, USNR.

For Appellee: Lieutenant Jason A. Lien, JAGC, USNR (argued); Commander Peter
A. Dutton, JAGC, USN (on brief); Colonel Marc W. Fisher, Jr., USMC,
Colonel R.M. Favors, USMC, and Lieutenant Commander Philip Sundel, JAGC,
USNR.

Military Judge: R. E. Hilton

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Smith, No. 01-0294/MC

Judge EFFRON delivered the opinion of the Court.

A general court-martial composed of a military judge sitting

alone convicted appellant, pursuant to his pleas, of

conspiracy to distribute marijuana and wrongful use,

introduction, and distribution of marijuana, in violation of

Articles 81 and 112a, Uniform Code of Military Justice, 10 USC

§§ 881 and 912a, respectively. He was sentenced to a

dishonorable discharge, confinement for five years, and

reduction to the lowest enlisted grade. The convening authority

approved the sentence but suspended confinement in excess of

thirty-six months for a period of twelve months. In an

unpublished opinion, the Court of Criminal Appeals affirmed the

findings and approved only so much of the sentence that included

a bad-conduct discharge, confinement for thirty-six months, and

reduction to the lowest enlisted grade.

On appellant’s petition, we granted review of the following

issue:

WHETHER THE NAVY-MARINE CORPS COURT OF
CRIMINAL APPEALS ERRED BY REFUSING TO APPLY
THIS COURT’S DECISIONS IN UNITED STATES V.
HARDCASTLE, 53 MJ 299 (2000), AND UNITED
STATES V. WILLIAMS, 53 MJ 293 (2000), WHICH
HELD THAT PLEAS OF GUILTY ARE IMPROVIDENT IF
BASED UPON A MATERIAL MISUNDERSTANDING OF A
TERM IN THE PRETRIAL AGREEMENT.

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For the reasons discussed below, we set aside the decision of

the Court of Criminal Appeals and remand the case to that court

for further proceedings.

I. LEGAL BACKGROUND

A. General Principles

"[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 promise must be

fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971).

If the Government does not fulfill its promise, even through

inadvertence, the accused "is entitled to the benefit of any

bargain on which his guilty plea was premised." United States

v. Bedania, 12 MJ 373, 375 (CMA 1982).

To ensure that the record reflects the accused understands

the pretrial agreement and that both the Government and the

accused agree to its terms, the military judge must ascertain

the understanding of each party during the inquiry into the

providence of the plea. See United States v. Care, 18 USCMA

535, 40 CMR 247 (1969); RCM 910(f)(3) and (4), Manual for

Courts-Martial, United States (2000 ed.).∗ In addition, after

imposing sentence, the military judge must address the parties'

∗
All Manual provisions are identical to the ones in effect at the time of
appellant's court-martial.

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United States v. Smith, No. 01-0294/MC

understanding of any limitations on the sentence in order to

assure that there is a mutual agreement. See United States v.

King, 3 MJ 458 (CMA 1977); United States v. Green, 1 MJ 453 (CMA

1976); RCM 910(h)(3), Manual, supra. "If the military judge

determines that the accused does not understand the material

terms of the agreement, or that the parties disagree as to such

terms, the military judge shall conform, with the consent of the

Government, the agreement to the accused's understanding or

permit the accused to withdraw the plea." Id; see United States

v. Olson, 25 MJ 293, 296 (CMA 1987).

B. Materiality of the Provision

In an appeal that involves a misunderstanding or

nonperformance by the Government, the critical issue is whether

the misunderstanding or nonperformance relates to "the material

terms of the agreement." See RCM 910(h)(3). When the issue is

whether the collateral consequences of a court-martial

constitute a material component of an agreement, a guilty plea

may be withdrawn "only when the collateral consequences are

major and the appellant's misunderstanding of the consequences

(a) results foreseeably and almost inexorably from the language

of a pretrial agreement; (b) is induced by the trial judge's

comments during the providence inquiry; or (c) is made readily

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United States v. Smith, No. 01-0294/MC

apparent to the judge, who nonetheless fails to correct that

misunderstanding." Bedania, supra at 376.

Whether a particular collateral consequence amounts to a

material matter depends upon the circumstances of the case.

See, e.g., Olson, supra at 297 (misunderstanding regarding

administrative matters affecting restitution); United States v.

Williams, 53 MJ 293 (2000) (misunderstanding regarding

relationship between the accused's pay status and waiver of

automatic forfeitures of pay under Article 58b, UCMJ, 10 USC

§ 858b); United States v. Hardcastle, 53 MJ 299 (2000) (same);

United States v. Albert, 30 MJ 331 (CMA 1990) (no relief

warranted where the accused's misunderstanding did not result

from representations by the convening authority, trial counsel,

or the military judge).

C. Remedy

In the event of a misunderstanding as to a material term in

a pretrial agreement, the remedy is either specific performance

of the agreement or an opportunity for the accused to withdraw

from the plea. See Santobello, 404 U.S. at 263. The Government

may provide alternative relief if it will achieve the objective

of the agreement. See, e.g., United States v. Mitchell, 50 MJ

79, 82-83 (1999); Olson, supra at 298-99.

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United States v. Smith, No. 01-0294/MC

II. FACTUAL BACKGROUND

A. Trial

Appellant pleaded guilty to the charged offenses pursuant

to a pretrial agreement. The agreement permitted the convening

authority to approve any punitive discharge but obligated him to

suspend all confinement in excess of forty months if a punitive

discharge was adjudged. With respect to forfeitures, the

agreement provided that

all adjudged forfeitures and/or fines will
be suspended for one (1) year from the date
of trial. . . . All automatic forfeitures
will be deferred until the convening
authority acts, at which time the said
forfeitures will be waived for a period of
six months. These forfeitures will go to
the accused's wife and child.

See Arts. 57(a)(2) and 58b(a)(1) and (b), UCMJ, 10 USC §§

857(a)(2) and 858b(a)(1) and (b).

In accordance with applicable law, the military judge

examined the details of the agreement, except for the sentence

limitations, during his inquiry into the providence of the plea.

See King and Green, both supra. During the providence inquiry,

the military judge provided appellant with the following general

information about automatic forfeitures:

MJ: Now, as a result of 58b of the Uniform
Code of Military Justice -- that is, Article
58b -- any approved court-martial sentence
that includes either a punitive discharge
and confinement or confinement for more than
six months results in the forfeiture of all

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United States v. Smith, No. 01-0294/MC

pay and allowances due during the period of
confinement.

However, the convening authority may
waive these forfeitures for a period of up
to six months, as an aspect of your pretrial
agreement or otherwise, in which case the
pay and allowances are given to a dependent.

Do you understand that?

ACC: Yes, sir.

Subsequently, appellant testified during the sentencing

proceeding that, if "substantial forfeitures" were imposed, his

"family would really be hurting, sir, for real, my kids, my ex-

wife because she's just going to school. You know, she needs

the support. My kids need the support." Trial counsel, in his

sentencing argument, stated that “[t]he Government concedes that

he does support his family, and we won't ask for forfeitures in

this case.” Defense counsel asked the military judge

to consider that forfeitures would only
probably impact the family and not Sergeant
Smith. A good portion of his money already
is going to the family. He certainly can't
benefit much from his pay at this point. We
ask the military judge to leave that alone
and allow the family to at least benefit
from that.

After hearing from counsel, the military judge sentenced

appellant to a dishonorable discharge, confinement for five

years, and reduction to the lowest enlisted grade. Thereafter,

he examined the sentencing portion of the pretrial agreement and

inquired into the parties' understanding as to its meaning. The

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United States v. Smith, No. 01-0294/MC

inquiry included the following discussion concerning fines and

forfeitures:

MJ: . . . Paragraph 3 deals with forfeiture
or fine. Now, there was no forfeiture and
there was no fine adjudged to [sic] this
case, so that part of the agreement has no
bearing on the sentence. . . . Now, is the
way that I have explained this part of the
agreement comport [sic] with your
understanding, Sergeant Smith?

ACC: Yes, sir.

MJ: Do you have any questions about the
effect of the sentence limitation portion of
the pretrial agreement on the sentence
adjudged?

ACC: No, sir.

MJ: Does the way I have expressed my
understanding of the effect of the sentence
limitation portion of the agreement comport
with counsel's understanding?

TC: Yes, sir.

DC: Yes, sir, with the exception of perhaps
the last sentence of Paragraph 3 which deals
with automatic forfeitures, which I do think
the agreement would affect it in that regard
if he were -- although no forfeitures were
adjudged, he may in fact -- in fact, he will
--

MJ: All right. That's a good point,
Captain O'Connell.

DC: -- be subject to the automatic
forfeitures.

MJ: That's a good point. Sergeant Smith,
pursuant to earlier matters I addressed with
you concerning automatic forfeitures, the
convening authority may implement automatic

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United States v. Smith, No. 01-0294/MC

forfeiture provisions against your pay
except that Paragraph 3 of the agreement
reflects that forfeitures not imposed, or I
should say the pay against which forfeitures
is [sic] not imposed, will go to your wife
and your -- it says here "child."

Is that your understanding?

ACC: Yes, sir.

MJ: ...Now, I understand you have two
daughters and two sons?

ACC: Yes, sir.

MJ: And I also understand that, at this
time anyway, you and Miss Dokes are no
longer married?

ACC: Correct, sir.

MJ: So what is the intent, counsel, of this
portion of the pretrial agreement as it
pertains to I would imagine Miss Dokes and
Sergeant Smith's children, two sons and two
daughters?

DC: Sir, the intent of the pretrial
agreement -- and I'm sure Captain Lee can
speak to this as well -- is that the money
should go to Miss Dokes and the dependent
children of Sergeant Smith.

MJ: Captain Lee?

TC: The Government concurs, sir.

MJ: Is that your understanding, Sergeant
Smith?

ACC: Yes, sir.

MJ: All right. It is the understanding of
the court that that's the case. Now,
administratively, the command will take

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United States v. Smith, No. 01-0294/MC

action to effect that understanding of the
pretrial agreement or put it into effect.

And, Captain Lee, I turn to you here because
as the representative of the Government,
we're dealing with a situation which
involves Miss Dokes, who is not the
accused's wife and yet is the mother of
three of the accused's children. I frankly
am not certain whether the regulations that
may pertain limit what's available to a
spouse or not.

[Trial and defense counsel conferred.]

DC: Sir, it's Sergeant Smith's
understanding as well as my own that the
regulation would allow such forfeitures,
automatic forfeitures, to go to a dependent
regardless whether that's his child or his
wife. So at least to the children, I think
is the effect and intent of that. . . .
[H]is intent with negotiating that provision
was to ensure that his children were taken
care of because that was the burden of his
former spouse and that was the main intent
behind the agreement, to take advantage of
the provision which it's been drafted to
allow that.

TC: Sir, we can go and do a pen change. We
can just put "dependents" and wipe out "wife
and child."

MJ: Well, I'm not sure that's necessary to
effect Sergeant Smith's intent here.

Sergeant Smith, did Captain O'Connell
correctly state what was your intent to
accomplish by this provision of the pretrial
agreement?

ACC: Yes, sir.

MJ: Is it your intent by this part of the
agreement that your children receive

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United States v. Smith, No. 01-0294/MC

whatever forfeitures would otherwise
automatically be forfeited?

ACC: Yes, sir.

* * *

MJ: Do counsel understand what I'm saying
here and agree?

TC: The Government does, sir.

DC: Yes, sir.

MJ: I think we have discussed this
sufficiently on the record so that it
reflects Sergeant Smith's intent that his
children, if not the mother of the children,
the mothers of the children, actually
receive those amounts of pay which would
automatically be forfeited but which the
convening authority can take action to
direct to his children.

All participants in this exchange overlooked appellant's

pay status, as well as the impact of that status on appellant's

expectations under the pretrial agreement and the Government's

ability to fulfill those expectations. Appellant had enlisted

in the Marine Corps on November 5, 1993, for a term of four

years. At the time his sentence was adjudged on January 21,

1998, his enlistment had expired and he was in a legal-hold

status. Under applicable service regulations, appellant's

entitlement to pay was terminated on the day that confinement

was adjudged. See 7A Department of Defense Financial Management

Regulation, para. 030207.C (July 1996). Accordingly, there was

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United States v. Smith, No. 01-0294/MC

no pay to forfeit. Contrary to the understanding of the

parties, there was no pay to protect.

B. Post-trial

The Government's misunderstanding of appellant's pay status

continued after trial. In an undated document entitled "Report

of Results of Trial," trial counsel noted the forfeiture

provisions of the agreement and added: "These forfeitures will

go to the accused's wife and child."

When appellant learned, post-trial, that his pay had been

terminated, defense counsel sent an e-mail to the trial counsel

seeking to have the agreement enforced on behalf of appellant's

dependents. That e-mail said:

Since his discharge has not been approved
and he is still effectively on duty at the
brig (i.e., involuntarily extended), it
seems somebody knee-jerked on this one. His
ECC should not have been run while he is in
this status. In effect, General Ryan [the
convening authority] agreed NOT TO RUN THIS
ENTRY UNTIL THE COMMAND'S HALF OF THE
BARGAIN IN THE PTA WAS SATISFIED. However,
when all is said and done, Smith is not
concerned with HIS pay, but rather the
medical benefits of his children.

THE PROBLEM IS THIS: The mother of Smith's
children cannot get the dependency paperwork
changed to HER name while the system still
thinks they are covered under HIM (until
something happens at DEERS etc., to change
SGT SMITH'S STATUS, which still reads
"active"). In other words, the rest of the
system still thinks he rates benefits and
the kids' mother is getting shafted because

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United States v. Smith, No. 01-0294/MC

of it. Please advise on who has ultimate
control over this issue, so I can talk
directly with him/her. My client is getting
screwed and the answers I'm getting are not
persuasive.

Even if he rates nothing (which does not
seem correct), we need to make something
happen so his kids can be covered under
their mother (military spouse).

Defense counsel’s request was reviewed by the personnel

office on the installation, which concluded that nothing could

be done because appellant was in a nonpay status. The personnel

officer stated:

. . . The LEGADMINMAN paragraph 3001.1
advises that a member's active service must
be extended if his term of enlistment
expires while waiting trial. . . . [T]he
only guidance pertaining to a member
confined beyond his ECC is to report a duty
status of "M" on that individual. The duty
status "M" terminates his pay and
allowances.

Additionally, the LEGADMINMAN paragraph
3001.1 also refers to the MCO P1900.16E, par
1008 (SEPSMAN). If you look at this
reference it tells you:

Entitlement to pay and allowances
for personnel retained after
expiration of term of service in a
disciplinary status is prescribed
in paragraph 10316a (actually this
is now paragraph 030207 with the
new manual) of the DODFMR VOL 7A.

If you go to the reference and look at
par 030207.C it states:

ENLISTMENT EXPIRES BEFORE TRIAL.
An enlisted member retained in the

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United States v. Smith, No. 01-0294/MC

service for the purpose of trial
by court-martial is not entitled
to pay for any period after
expiration of the enlistment
unless acquitted or the charges
are dismissed, or the member is
retained in or restored to a full-
duty status.

* * *

It is my opinion based on 17 years of
doing this job, that the Convening Authority
cannot waive this for six months. This is
because unlike a normal case where the
member's ECC has not expired and they are
entitled to pay and allowances. [sic] This
member is not entitled to anything;
therefore, nothing can be deferred for six
months.

After appellant's request to provide monetary benefits for

his dependents was rejected, defense counsel submitted a

clemency request to the convening authority under RCM 1105.

Counsel specifically asked that "all confinement in excess of

eighteen months be suspended for one year," and in support of

this request, he wrote:

Private Smith has lost all pay and
allowances despite General Ryan's agreement
to suspend all forfeitures until the C.A.'s
action and waive all forfeitures for six
months thereafter. In his pretrial
agreement, Private Smith agreed to plead
guilty before a military judge and waive all
motions at trial in exchange for General
Ryan's generous agreement to help care for
his family for a period of time while he was
in jail. Caring for his family was Private
Smith's only concern. Private Smith pled
guilty as required, saving the Government
the expense of trial. In addition, he

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United States v. Smith, No. 01-0294/MC

provided CID the names of dozens of other
drug offenders, some of whom were later
caught and convicted. However, because of
administrative problems with continuing
Private Smith's pay after his EAOS, all of
Private Smith's pay was cut off. When this
happened, the defense protested to the trial
counsel, Captain Ed Lee, as well as to the
admin shop at MWSS 271. The defense was
informed that, despite General Ryan's
agreement to continue Private Smith's pay in
favor of his children, nothing could be done
to reinstate it (see enclosure 4). In
short, Private Smith has not received any
support for his family since he has been
incarcerated, despite General Ryan's
apparent intent to prevent significant loss
of income to Private Smith's family. If
this portion of the pretrial agreement is to
have no effect, Private Smith asks that more
of his sentence be suspended so that he can
provide for his family as soon as possible.

In addition, appellant submitted three handwritten letters to

the convening authority requesting a reduction in the period of

confinement to expedite his return to his family so he could

address their financial and other problems.

The staff judge advocate's recommendation to the convening

authority under RCM 1106 acknowledged that defense counsel had

submitted a clemency request. The recommendation, however, did

not discuss the substance of the request or its relationship to

the problems in implementing the pretrial agreement. Instead,

despite the fact that appellant had notified the convening

authority of the post-trial problems in implementing the

pretrial agreement with respect to his pay, the staff judge

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United States v. Smith, No. 01-0294/MC

advocate erroneously advised the convening authority that the

automatic forfeitures went into effect on February 4, 1998. In

addition, the staff judge advocate’s recommendation did not

accurately describe the deferral and waiver portions of the

pretrial agreement.

The convening authority approved the sentence as adjudged,

with one modification. He suspended confinement in excess of

thirty-six months for a period of twelve months, with provision

for automatic remission. The thirty-six-month period

represented a four-month reduction from the forty-month ceiling

in the pretrial agreement. He indicated that he had considered

the results of trial, the record of trial, the recommendation of

the staff judge advocate, the evidence in the record related to

appellant's record of service, and the post-trial matters

submitted by the defense. Neither his action nor the staff

judge advocate's recommendation provided a rationale for the

four-month reduction in confinement. With respect to pay, the

convening authority incorrectly treated automatic forfeitures as

an element of the sentence, and he perpetuated the staff judge

advocate's misunderstanding of appellant's pay situation,

erroneously asserting that the automatic forfeitures had

commenced on February 4, 1998.

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United States v. Smith, No. 01-0294/MC

C. Court of Criminal Appeals

In the Court of Criminal Appeals, appellant challenged the

providence of his pleas, asserting that he had not received the

benefit of the pretrial agreement as a result of a

misunderstanding as to a material provision. The Government

conceded error and joined in a request that the pleas be treated

as improvident. In a split decision, the Court of Criminal

Appeals rejected appellant’s contention and the Government’s

concession. The majority concluded that appellant’s pleas were

voluntary, on the theory that he would have entered into the

pretrial agreement “regardless of whether his pretrial agreement

contained any language concerning the automatic forfeiture of

pay.” Unpub. op. at 14. In the majority’s view, the

misunderstanding did not result from the language of the

pretrial agreement; the provisions concerning pay “most likely

predated the existence of the pretrial agreement”; it was likely

that the pay provisions in the agreement were initiated by

appellant; and it was unlikely that the convening authority

initiated or insisted upon those provisions.

The majority concluded that appellant entered into the

agreement because he previously had made a confession and

because he was facing a maximum sentence of fifty years. Id. at

14-16. The majority also noted that the agreement had been

signed a month before trial, that the military judge had not

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United States v. Smith, No. 01-0294/MC

discussed the details of the forfeiture provisions with

appellant until after appellant had entered his pleas, that

during post-trial proceedings, appellant had not asserted that

his pleas were improvident, and that appellant had “capitalized”

on his no-pay status by seeking a reduction in confinement. Id.

at 17-18. Applying these matters in light of the factors set

forth in Bedania, supra, the majority concluded "that the

appellant's misunderstanding about the collateral consequences

of his pretrial agreement was not 'major,'" and that his pleas

were not "induced by the trial judge's comments, the trial

counsel or the convening authority." Unpub. op. at 18.

Nonetheless, because “appellant was not given the entire benefit

of his bargain in this case," the majority changed the

dishonorable discharge to a bad-conduct discharge and eliminated

the suspended period of confinement in excess of thirty-six

months. Id. at 19, 21.

The dissent below concluded that the pleas were

“improvident based upon a mutual misunderstanding of the parties

concerning a material term of the pretrial agreement . . . .”

Id. at 21. The dissent noted that the facts, as recited by the

majority, demonstrated that “all parties, to include the

military judge, misperceived the Government’s ability to provide

the benefit for which the appellant had negotiated in return for

his pleas -- financial support to his family through delivery of

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United States v. Smith, No. 01-0294/MC

the appellant’s pay during the initial months of his

confinement. . . . He did not receive th[e] benefit that he and

the Government agreed he would receive in return for his pleas

of guilt.” Id. at 21-22 (footnote omitted).

The dissent described the provision regarding pay as

“major” and concluded that “appellant is entitled to succeed on

this issue since misunderstanding of this consequence resulted

‘foreseeably and almost inexorably from the language of the

pretrial agreement.’” Id. at 22, quoting Bedania, supra at 376.

The dissent observed that

the mutual misunderstanding among the
appellant, the convening authority, his
staff judge advocate, and the trial counsel
should have been apparent to the military
judge. Unfortunately, the military judge
confirmed during the providence inquiry that
the appellant would receive the negotiated
benefit.

Id. (footnote omitted).

According to the dissent, if the military judge had advised

appellant accurately “during the providence inquiry that his pay

would stop when he was confined post-trial, the appellant could

have elected to reject the pretrial agreement and withdraw his

pleas, or he could have elected on the record to continue with

his pleas of guilty.” Id. at 21-22 n.1. The dissent added that

a further opportunity “to obtain such an informed waiver was

missed by the staff judge advocate,” who could have advised the

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United States v. Smith, No. 01-0294/MC

convening authority that there was a material misunderstanding,

permitting appellant “either to withdraw his guilty pleas or

affirm them based on the sentence adjudged or in return for some

other specific relief.” Id. at 22 n.3. The dissent observed

that the staff judge advocate, instead of providing such advice,

misadvised the convening authority by erroneously asserting that

the automatic forfeitures “went into effect” and “said nothing

about the convening authority’s obligation to waive them as

required by the pretrial agreement.” Id. The dissent concluded

that, under these circumstances, “appellant’s post-trial efforts

to receive at least some benefit in return for his negotiated

pleas [did not amount] to an informed waiver of the error which

occurred as a result of the mutual misunderstanding in this

case.” Id. at 22.

III. DISCUSSION

A. Analysis

In Williams, we observed that “[i]gnorance of the law on a

material matter cannot be the prevailing norm in the legal

profession or in the court-martial process.” 53 MJ at 296. The

majority below attempted to distinguish Williams on two grounds:

(1) that the accused in Williams had submitted an affidavit

asserting that the convening authority’s agreement to waive

forfeitures was the “only” reason he agreed to plead guilty; and

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United States v. Smith, No. 01-0294/MC

(2) that unlike the present case, there was no other form of

clemency in Williams. Unpub. op. at 12. There is no

requirement, however, that the term at issue constitute the

“only” reason for a pretrial agreement. Williams, like

Hardcastle, is based upon the Supreme Court’s decision in

Santobello, which applies when “a plea [agreement] 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 . . . .” 404 U.S. at 262 (emphasis added).

Although other factors may help induce a plea -- such as the

existence of a confession or the potential for lengthy

confinement -- these factors do not negate the materiality of

another term that may be “part” of the agreement.

With respect to the lower court’s reliance on the convening

authority’s clemency action, we note that the record is devoid

of any indication by the convening authority or his staff judge

advocate that the relatively modest clemency provided to

appellant was taken to rectify the mutual misunderstanding with

respect to the pretrial agreement. Even after the convening

authority’s action, appellant was left with a punitive discharge

and confinement for thirty-six months, double the amount

requested in his clemency submission. If anything, the record

illustrates the command’s inattention to the problems in the

pretrial agreement, as reflected in the fact that the staff

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United States v. Smith, No. 01-0294/MC

judge advocate misinformed the convening authority as to

appellant’s pay status, and that the convening authority acted

on that basis.

We note that 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. The record in the present case, however, reflects no

such agreement, nor does it otherwise demonstrate that appellant

made an informed waiver of his rights.

In the present case, appellant sought through the pretrial

agreement to address his family’s financial situation during any

period of confinement by providing that adjudged or automatic

forfeitures would go to his dependent children. The record

demonstrates that all participants in the proceeding -- the

convening authority, the staff judge advocate, trial and defense

counsel, appellant, and the military judge -- proceeded on the

assumption that appellant’s pay would provide the basis upon

which the forfeiture provisions could be implemented.

As in Williams and Hardcastle, the military judge expressly

stated on the record that the provision relating to automatic

forfeitures would apply to appellant. Defense counsel offered

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United States v. Smith, No. 01-0294/MC

the view that "the intent of the pretrial agreement . . . is

that the money should go to" appellant's ex-wife and his

dependent children. Trial counsel agreed with that

understanding and, during his sentencing argument, stated that

the Government would not ask for forfeitures, in view of

appellant’s desire to support his family. The military judge

stated that it was "the understanding of the court" that funds

would go to appellant’s children as a result of the pretrial

agreement, and he stated that “the command will take action to

effect that understanding of the pretrial agreement or put it

into effect." Under Williams and Hardcastle, remedial action is

required because these circumstances reflect pleas that rest in

a significant degree on an agreement with the Government that

was a material part of the consideration, and the Government has

not fulfilled its part of the agreement.

B. Appropriate Relief

Assuming that the bargained-for benefit is outside the

authority of the Government to provide, it is necessary to

determine whether some "appropriate alternative relief" is

available "as an adequate means of providing appellant with the

benefit of his bargain." See Mitchell, 50 MJ at 83. As in

Mitchell, we conclude that the Court of Criminal Appeals is

well-situated to consider this question. Id. If such

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United States v. Smith, No. 01-0294/MC

"appropriate alternative relief" is available, the court may

affirm the findings and so much of the sentence that will

reflect this relief. If not, in the absence of appellant having

received his full consideration in return for his pleas of

guilty, the court must set aside the findings and sentence and

authorize a rehearing. See Williams and Hardcastle, both supra.

IV. DECISION

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is set aside. The record of trial is

returned to the Judge Advocate General of the Navy for remand to

that court for further proceedings consistent with this opinion.

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United States v. Smith, No. 01-0294/MC

CRAWFORD, Chief Judge (concurring in part and in the
result):

We are once again faced with the unfortunate, if not

inexcusable, situation where an accused was beyond his ETS date

at trial and, apparently, none of the participants recognized

the significance of this important fact. See United States v.

Williams, 53 MJ 293 (2000); United States v. Hardcastle, 53 MJ

299 (2000); United States v. Albert, 30 MJ 331 (CMA 1990). It

would appear to me that when a charge sheet clearly shows that

an accused’s current date of service began on “5 Nov 93” for a

term of “4 years,” and the accused’s court-martial was held on

January 21, 1998, someone should have calculated that the

accused was beyond his contractual service obligation.

Appellant ceased to be pay eligible on the date findings

and sentence were announced (January 21, 1998). See Albert,

supra at 332, citing 39 Comp. Gen. 42 (1959). Since there was

no pay to suspend, forfeit, defer, or otherwise dispose of, it

was impossible for the Government to comply with the pretrial

agreement, proposed by appellant and his counsel but nonetheless

accepted by the convening authority.

During the six months it took to type, assemble, and

authenticate appellant’s 100-page guilty plea record of trial

(June 17, 1998), and the ensuing five months it took to prepare

a four-page staff judge advocate’s recommendation (November 25,
United States v. Smith, No. 01-0294/MC

1998), someone discovered that appellant’s pay had stopped on

January 21, 1998, the date of his court-martial.

The real issue in this case, as it is in all cases where an

appellant alleges that he did not receive all for which he

bargained, is whether this appellant understandingly,

voluntarily, and intelligently entered into his pretrial

agreement. See Brady v. United States, 397 U.S. 742, 747-48 and

n.4 (1970); RCM 705(c)(1)(A), Manual for Courts-Martial, United

States (2000 ed.). Guilty pleas that are induced by false

promises, threats, and misrepresentations fail, but those plea

bargains that are otherwise voluntarily made or based on a non-

substantial misunderstanding of the sentence will stand. See

Williams, 53 MJ at 297 (Crawford, C.J., concurring in the

result).

This case is closely related to, but not squarely on point

with, recent pronouncements from this Court. Unlike the

majority below, I do find a meaningful distinction between this

case and Albert. In Albert, the convening authority did exactly

what he promised to do in the pretrial agreement. There, the

pretrial agreement provided that the convening authority would,

inter alia, suspend “all forfeitures in excess of $250 pay per

month for ... 1 year.” 30 MJ at 331. However, Albert was

beyond his ETS date and not entitled to any money. Although the

pretrial agreement provided for a suspension of forfeitures that

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United States v. Smith, No. 01-0294/MC

actually provided no relief to the accused, we held that Albert

was not entitled to relief because his unilateral

misunderstanding was not induced by a representation of the

military judge, trial counsel, or convening authority. 30 MJ at

333; see ___ MJ at (5)(majority opinion); see also United States

v. Williams, 55 MJ 302, 307 (2001)(no entitlement to relief

where there was no representation by the convening authority,

military judge, or trial counsel that Williams’s pay would

continue beyond his ETS while in confinement).

Without more, this case would be controlled by our holding

in Albert. As noted by the dissent below, the military judge

changed the posture of this case when he informed appellant that

appellant would receive the benefit of his pretrial agreement.

I remain convinced that the fact that appellant was facing a

maximum term of fifty years confinement had more persuasive

impact on his desire to negotiate a pretrial agreement then did

his altruistic wish to secure medical benefits for his family

members. Nonetheless, appellant’s desire to avoid the

collateral consequences associated with his forfeiture of pay

may have been a material element of the pretrial agreement.

Accordingly, I agree with the majority that the remedy in this

case is either specific performance, appropriate alternative

relief, or an opportunity to withdraw from the plea agreement.

See Santobello v. New York, 404 U.S. 257, 262-63 (1971); see

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United States v. Smith, No. 01-0294/MC

also United States v. Mitchell, 50 MJ 79 (1999); United States

v. Olson, 25 MJ 293 (CMA 1987); United States v. Bedania, 12 MJ

373 (CMA 1982).

As Judge Naugle points out in dissent below, the staff

judge advocate and convening authority missed a golden

opportunity to rectify any mutual misunderstanding. In his

request for clemency, appellant asked the convening authority to

suspend all confinement in excess of eighteen months for one

year and to approve a discharge no greater than a bad-conduct

discharge. First and foremost among the reasons for this

request and counter-offer was the Government’s inability to

fulfill that part of the pretrial agreement waiving forfeitures

in favor of appellant’s family members.

Using the principles of accord and satisfaction as a model,

the convening authority would have extinguished this appellate

issue by accepting appellant’s accord and satisfying him by

approving no confinement greater than eighteen months and a bad-

conduct discharge. Unlike the majority, I do not see the

necessity for a newly “written post-trial agreement.” ___ MJ at

(22). In my opinion, appellant could be made whole by approving

no greater than a bad-conduct discharge, eighteen months

confinement, and paying appellant for the number of months he

spent in confinement in excess of eighteen.

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United States v. Smith, No. 01-0294/MC

Nonetheless, I concur that the Courts of Criminal Appeals

are the experts at applying service regulations, to include pay

manuals, and are best situated to determine what appropriate

relief is available to compensate an appellant and provide him

with the benefits for which he bargained pretrial. Accordingly,

I join in remanding this case to the Navy-Marine Corps Court of

Criminal Appeals for further proceedings.

5