UNITED STATES, Appellee
v.
Sergio SOTO Jr., Private First Class
U.S. Army, Appellant
No. 10-0397
Crim. App. No. 20090255
United States Court of Appeals for the Armed Forces
Argued December 14, 2010
Decided January 21, 2011
RYAN, J., delivered the opinion of the Court, in which
EFFRON, C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.
Counsel
For Appellant: Captain Brent A. Goodwin (argued); Colonel
Mark Tellitocci, Lieutenant Colonel Imogene M. Jamison,
Lieutenant Colonel Jonathan Potter, and Major Peter
Kageleiry (on brief); Lieutenant Colonel Matthew M. Miller
and Captain Shay Stanford.
For Appellee: Captain Christopher B. Witwer (argued);
Major Christopher B. Burgess and Major LaJohnne A. White
(on brief).
Military Judge: Robert R. Rigsby
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Soto, No. 10-0397/AR
Judge RYAN delivered the opinion of the Court.
Pursuant to his pleas, Appellant was found guilty by a
military judge sitting as a special court-martial of two
specifications of absence without leave, and one
specification each of the following: making a false
official statement, damaging property, and larceny, in
violation of Articles 86, 107, 109, and 121, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 886, 907, 909, 921
(2006). Appellant was sentenced to a reduction to the
grade of E-1, confinement for two months, and a bad-conduct
discharge. Per the terms of the pretrial agreement, the
convening authority approved only the punitive discharge.
The United States Army Court of Criminal Appeals (ACCA)
reviewed Appellant’s case and summarily affirmed
Appellant’s conviction. See United States v. Soto, No.
20090255, slip op. at 1 (A. Ct. Crim. App. Feb. 17, 2010)
(per curiam).
Appellant filed a petition for grant of review on
April 15, 2010, and on July 13, 2010, we granted
Appellant’s petition on the following issue:
WHETHER THE PRETRIAL AGREEMENT CONTAINED A PROHIBITED
AND UNENFORCEABLE PROVISION REQUIRING APPELLANT TO
“OFFER TO REQUEST A BAD[-]CONDUCT DISCHARGE DURING THE
SENTENCING PHASE” THEREBY VIOLATING RULE FOR COURTS-
MARTIAL 705(c)(1)(B) AND PUBLIC POLICY.
2
United States v. Soto, No. 10-0397/AR
United States v. Soto, 69 M.J. 198, 198 (C.A.A.F. 2010)
(order granting review) (alteration in original).
In this case, the provision in question was placed in
the quantum portion of the pretrial agreement (PTA),
notwithstanding the fact that it was not a quantum
limitation on the sentence. The provision was neither
disclosed to the military judge prior to his accepting
Appellant’s plea of guilty (although the military judge
specifically asked whether there were any conditions in the
quantum portion), nor was it discussed with Appellant
before, during, or after the providence inquiry. We hold
that under these facts, the plea inquiry was improvident.
I.
Appellant and the convening authority entered into a
pretrial agreement. The pretrial agreement had two
components: an “Offer to Plead Guilty” and Appendix I,
“Quantum.” In the quantum portion of the pretrial
agreement, Appellant agreed to: (1) plead guilty to the
Charges and Specifications, as set forth in the Offer to
Plead Guilty; (2) abide by the other terms and conditions
set forth in the Offer to Plead Guilty; (3) request a bad-
conduct discharge during the sentencing phase of trial; and
(4) submit a post-trial Chapter 10 in the event the
military judge did not adjudge a discharge.
3
United States v. Soto, No. 10-0397/AR
The quantum portion of the pretrial agreement further
specified that in return for Appellant’s cooperation, the
convening authority would: (1) approve no punishment other
than a bad-conduct discharge; (2) disapprove any sentence
to confinement; (3) disapprove any restriction; (4)
disapprove any fine; (5) disapprove any hard labor without
confinement; and (6) approve a post-trial Chapter 10,
should a discharge not be adjudged.
At trial, the military judge conducted the inquiry
into the terms of the Offer to Plead Guilty component of
the PTA, in accordance with Rule for Courts-Martial
(R.C.M.) 910(f)(3) and (4). However, because the provision
requiring Appellant to request a bad-conduct discharge at
trial appeared only in the quantum portion of the PTA, it
was not disclosed to the military judge, and was not
discussed with Appellant.
Before accepting Appellant’s guilty plea, the military
judge addressed the quantum portion of the agreement as
follows:
MJ: Counsel, are there any conditions or terms in the
Quantum Portion other than a limitation on sentence?
TC: No, Your Honor.
DC: Your Honor, may I have a moment?
MJ: Yes.
4
United States v. Soto, No. 10-0397/AR
[The defense counsel conferred with the accused.]
DC: Your Honor, there is a condition other than a
limitation on sentence.
MJ: What is the condition?
DC: Your Honor --
MJ: I do not want to know the quantum, but I have to
know what the condition is.
DC: The condition is to --
MJ: Hold on a second, does this deal with the sentence
limitation?
DC: No, Your Honor.
MJ: Do you need a recess?
. . . .
[The court was recessed and reconvened.]
MJ: . . . Private Soto, there is one condition in the
quantum portion other than a limitation on sentence.
Captain McDonald, is that your understanding?
DC: Yes, Your Honor.
MJ: Private Soto, is that your understanding?
ACC: Yes, Your Honor.
MJ: Captain Mackler, is that your understanding?
TC: Yes, Your Honor.
MJ: From what I understand . . . . It says that [the
convening authority will] “Approve a Post[-]Trial
Chapter 10 should a discharge not be adjudged.”
(Text in second set of brackets added.) The condition in
the quantum portion of the PTA requiring Appellant to
5
United States v. Soto, No. 10-0397/AR
request a bad-conduct discharge was neither disclosed to
the military judge nor discussed during the plea inquiry.
During sentencing, defense counsel requested a bad-
conduct discharge. After defense counsel made the request
for a punitive discharge during argument on sentencing, the
military judge asked Appellant to confirm that he
understood the nature of a punitive discharge, that he
himself desired a punitive discharge, and that he consented
to counsel’s request. The only evidence presented at
sentencing was Appellant’s short unsworn statement which
included an acknowledgment of wrongdoing and an apology.
The military judge proceeded to sentence Appellant, inter
alia, to a bad-conduct discharge, which the convening
authority later approved pursuant to the pretrial
agreement. Immediately after sentencing, the military
judge reviewed the quantum portion with Appellant,
discussing the convening authority’s obligations under the
PTA in some detail, but he failed to discuss the provision
requiring Appellant to request a bad-conduct discharge.
II.
A plea of guilty is more than an admission of guilt --
it is the waiver of bedrock constitutional rights and
privileges. Boykin v. Alabama, 395 U.S. 238, 242-43
(1969). Under controlling Supreme Court precedent it is,
6
United States v. Soto, No. 10-0397/AR
therefore, constitutionally required under the Due Process
Clause of the Fifth Amendment that a judge ensure that a
guilty plea be entered into knowingly and voluntarily.
Brady v. United States, 397 U.S. 742, 748 (1970); McCarthy
v. United States, 394 U.S. 459, 466 (1969). It is
axiomatic that “[t]he military justice system imposes even
stricter standards on military judges with respect to
guilty pleas than those imposed on federal civilian
judges.” United States v. Perron, 58 M.J. 78, 81 (C.A.A.F.
2003).
In order to ensure that pleas of guilty are not only
knowing and voluntary but appear to be so, detailed
procedural rules govern the military judge’s duties with
respect to the plea inquiry. See United States v. King, 3
M.J. 458, 459 (C.M.A. 1977) (noting that judicial scrutiny
of plea agreements at the trial level enhances public
confidence in the plea bargaining process). The military
judge must ensure there is a basis in law and fact to
support the plea to the offense charged. United States v.
Inabinette, 66 M.J. 320, 321-22 (C.A.A.F. 2008); R.C.M.
910(e). Further, the military judge “shall inquire to
ensure: (A) That the accused understands the agreement;
and (B) That the parties agree to the terms of the
agreement.” R.C.M. 910(f)(4). This inquiry is part and
7
United States v. Soto, No. 10-0397/AR
parcel of the providence of an accused’s plea, and
necessary to ensure that an accused is making a fully
informed decision as to whether or not to plead guilty.
King, 3 M.J. at 458-59.
Relatedly, it is the military judge’s “responsibility
to police the terms of pretrial agreements to insure
compliance with statutory and decisional law as well as
adherence to basic notions of fundamental fairness.”
United States v. Partin, 7 M.J. 409, 412 (C.M.A. 1979)
(citation omitted). It is for this reason that the R.C.M.
requires that the military judge “shall require” disclosure
of the entire agreement excepting the quantum limitations
before accepting a plea of guilty. R.C.M. 910(f)(3).
Further, after the sentence is announced, the military
judge both “shall inquire” into any parts of the PTA not
previously examined, and ensure that an accused understands
all material terms. R.C.M. 910(h)(3). As we have
previously noted, an inquiry that falls short of these
requirements and fails to ensure the accused understands
the terms of the agreement is error. United States v.
Felder, 59 M.J. 444, 445 (C.A.A.F. 2004); King, 3 M.J. at
459.
None of these procedural safeguards were afforded in
this case with respect to the provision requiring Appellant
8
United States v. Soto, No. 10-0397/AR
to request a bad-conduct discharge. We cannot say, for
example, that the military judge considered whether the
provision in question complied with statutory or decisional
rules or was fundamentally fair.1 Nor can we say, based on
this record, that the military judge was aware that the
defense counsel requested the bad-conduct discharge, and
Appellant acceded to it, because it was a condition of the
PTA. In fact, when the military judge specifically asked
whether there were conditions in the quantum portion of the
PTA, neither the Government nor the defense disclosed it.
Examining the quantum portion of the agreement after the
announcement of sentence, the military judge did not
acknowledge the term requiring Appellant to request a
punitive discharge during sentencing, let alone discuss it
with Appellant.
“A fundamental principle underlying this Court’s
jurisprudence on pretrial agreements is that ‘the agreement
cannot transform the trial into an empty ritual.’” United
1
This is particularly significant given that the provision
in question is one of first impression, before this Court
at least. Although we resolve this case based on the
provision’s effect on the providence inquiry under the
facts presented here, and do not decide whether such a
provision violates R.C.M. 705(c), military judges need to
be ever vigilant in fulfilling their responsibility to
scrutinize pretrial agreement provisions to ensure that
they are consistent with statutory and decisional rules,
and “basic notions of fundamental fairness.” Partin, 7
M.J. at 412 (citation omitted).
9
United States v. Soto, No. 10-0397/AR
States v. Davis, 50 M.J. 426, 429 (C.A.A.F. 1999) (quoting
United States v. Allen, 8 C.M.A. 504, 507, 25 C.M.R. 8, 11
(1957)). Judicial scrutiny of PTA provisions at the trial
level helps to ensure that this principle is fulfilled. It
is true that not every procedural failure results in an
improvident plea. See, e.g., Felder, 59 M.J. at 446. But
where, as here, the provision in question is one that goes
directly to the sentence requested by an accused and
imposed by the military judge, the provision is tucked away
in the quantum portion of the PTA (although it is not a
sentence limitation), and the parties fail to disclose the
provision in response to a direct question by the military
judge, the integrity of the guilty plea process itself is
undermined.
While we are not suggesting that the parties
intentionally misled the military judge, under the facts
and circumstances of this case, it appears that the
military judge was unaware that Appellant’s request for a
bad-conduct discharge was required by the PTA. Thus, we
cannot say the request did not influence the sentence
imposed. Under the particular facts of this case we hold
that there is a substantial basis in law to question the
providence of Appellant’s plea.
10
United States v. Soto, No. 10-0397/AR
III.
The decision of the United States Army Court of
Criminal Appeals is reversed, and the findings and sentence
are set aside. The record of trial is returned to the
Judge Advocate General, and a rehearing is authorized.
11
United States v. Soto
Court: Court of Appeals for the Armed Forces
Date filed: 2011-01-21
Citations: 69 M.J. 304
Copy Citations