United States v. Hunter: No suspense

United States v. Hunter, __ M.J. ___, 07-0386/CG (C.A.A.F. Jan. 11, 2008), addressed the question of whether a CA could decline to honor the suspension provisions of a pretrial agreement based on misconduct that occurred after the PTA was signed but before the case was tried. The defense argued "that a misconduct provision in a PTA governing misconduct that occurs before the convening authority acts pursuant to R.C.M. 1107 is per se impermissible under R.C.M. 1109 because R.C.M. 1109 requires that the withdrawal be during the 'period of suspension,' or after R.C.M. 1107 action." Id., slip op. at 5-6. CAAF disagreed, holding that "as long as the procedural protections set forth in R.C.M. 1109 are either followed or waived, a convening authority may withdraw before action from a pretrial agreement (PTA) when the accused violates conditions established pursuant to Rule for Courts-Martial (R.C.M.) 705(c)(2)(D)." Id., slip op. at 3.

Petty Officer Hunter ended up serving an additional 60 days of confinement based on his pretrial misconduct, the adjudged sentence, the original PTA cap, and the loss of the benefit of his deal.

CAAF held that under the plain terms of the PTA, if the accused engaged in any misconduct after the deal was signed, the CA was authorized to decline to give him the benefit of the suspension provision. While conceding that "R.C.M. 705(c)(2)(D) could have been drafted more precisely," CAAF concludes that it doesn't limit a CA and accused from entering a deal where the accused can forfeit the suspension protection by post-deal but pre-CA's action misconduct, including pretrial misconduct. Id., slip op. at 9.

In Hunter, the military judge also failed to explain this particular PTA provision to the accused. At the Coast Guard Court, the judges split 2-1 over whether the military judge's failure entitled Petty Officer Hunter to relief. United States v. Hunter, 64 M.J. 571 (C.G. Ct. Crim. App. 2007). CAAF, however, was unanimous in saying it didn't. The key question in determining whether there was material prejudice, CAAF holds, is whether there is evidence or at least a representation that the accused "misunderstood the terms of his agreement, that the operation of any term was frustrated, [or] that Appellant's participation in the agreement was anything other than wholly voluntary." Id., slip op. at 12-13 (quoting United States v. Felder, 59 M.J. 444, 446 (C.A.A.F. 2004)). I suspect that JO'C will like this portion of the opinion. The judge screwed up, but the burden was on the accused to demonstrate that he wouldn't have proceeded with his guilty plea had the judge correctly advised him. Nothing in the record suggests this. On the contrary, CAAF tells us, the fact that even when the extra time came crashing down on him, Petty Officer Hunter wasn't heard to say "that he had never heard of, or did not understand, the provision," suggests that he understood the provision and would have proceeded with the deal had the military judge correctly explained it to him. Id., slip op. at 13. This seems to be a sound application of the burden and conclusion that the defense didn't carry its burden.

CAAF's conclusion also seems to comport with common sense. I've tried a lot of courts-martial and read the records of trial in lots, lots more. I can't recall even one instance where I've seen or read a proceeding in which the military judge explains a pretrial agreement term to an accused and the accused responds, "It says WHAT??? No way. I'm not going to plead guilty if THAT'S what it says!" Has anyone else?