Unitary Nature of Pretrial Agreement
Overview of the unitary nature of pretrial agreement:
In absence of evidence to contrary, operation of sentence appendix to pretrial agreement on sentence of court not to be treated as divisible elements. United States v. Brice , 38 C.M.R. 134 (C.M.A. 1967);
United States v. Monett , 36 C.M.R. 335 (C.M.A. 1966);
United States v. Neal , 12 M.J. 522 (N.M.C.M.R. 1981).
- United States v. Barraza , 44 M.J. 622 (N.M. Ct. Crim. App. 1996). Accused pled to sodomy and indecent acts in exchange for pretrial agreement which contained a term that all adjudged confinement in excess of 46 months was to be suspended for 12 months from date of convening authority’s action. Accused was sentenced to 10 years, total forfeiture of all pay and allowances, reduction to E-1, and a dishonorable discharge. Defense counsel requested that the convening authority reduce confinement to aid the recovery process of accused’s family. The convening authority approved the sentence and modified the punishment by suspending all confinement in excess of 14 months and 6 days for a period of 36 months. The action was lawful under the pretrial agreement because confinement was actually reduced by 32 months and was 22 months less than the accused requested in his clemency petition, even though there was a 2 year suspension increase. The reduced confinement and increased suspension periods, taken together, did not exceed confinement period authorized by the pretrial agreement.
- United States v. Sparks , 15 M.J. 895 (A.C.M.R. 1983). In pretrial agreement, convening authority agreed to approve no sentence in excess of confinement for 4 -1, and bad-conduct discharge. The adjudged sentence was confinement for reduction to E-1, and bad-conduct discharge. Convening authority can approve sentence as adjudged, as overall severity not increased by extra two months forfeitures.
- Cf. United States v. Hayes , No. 9002521 (A.C.M.R. Aug. 29, 1991) (unpub). In pretrial agreement, convening authority would suspend for 12 months any confinement over 20 months. The adjudged sentence was confinement for 5 years, total forfeiture of all pay and allowances, reduction to E-1, and dishonorable discharge. At action, convening authority approved confinement for 36 months (confinement over 18 months suspended for 18 months), TF, reduction to E-1, and dishonorable discharge. HELD: Reducing confinement by two months and increasing the period of suspension by six months is more favorable to the accused than the pretrial agreement, so action was proper.
- United States v. Barratt , 42 M.J. 734 (A. Ct. Crim. App. 1995). No PTA. Adjudged sentence was 16 months confinement, total forfeiture of all pay and allowances, and reduction to E-1. Accused requested convening authority substitute bad-conduct discharge for reduction in confinement to 6 months; at action, convening authority approved new sentence of bad-conduct discharge and 6 months confinement. HELD: CA may
not approve a punitive discharge when punitive discharge not adjudged at trial. Punitive discharge, as a matter of law is not a LIO punishment to confinement. See 10 U.S.C § 3811. N..