The parties entered into a pretrial agreement that did not include a misconduct provision authorized in Rule for Courts-Martial (R.C.M.) 705(c)(2)(D). On the eve of trial, the convening authority withdrew from the pretrial agreement because Dean would not agree to modify the stipulation of fact to include new acts of alleged misconduct. Dean moved to compel enforcement of the pretrial agreement. The military judge conducted a hearing and allowed the convening authority to withdraw. Dean subsequently entered pleas of not guilty to all charges and specifications and was convicted of several offenses by the military judge. His adjudged and approved sentence included a term of confinement that exceeded the limit set out in the pretrial agreement by sixteen months. We granted review to determine whether the military judge erred in permitting the convening authority to withdraw from the pretrial agreement. 67 M.J. 45 (C.A.A.F. 2008). We hold that under the facts of this case the convening authority did not have a right to withdraw under R.C.M. 705(d)(4)(B), and we therefore reverse the United States Army Court of Criminal Appeals.Id., slip op. at 2.
Judge Baker dissented, disagreeing with the majority on two points. First, he thought that Dean had not begun performance under the PTA because his actions supposedly in reliance on the PTA actually preceded the CA entering the PTA. Second, he concluded that "even without an express subsequent misconduct provision, the plain terms of the agreement clearly permit subsequent and agreed upon modifications to the stipulation and permit withdrawal by either party when a proposed modification is not agreed upon." Because the defense wouldn't agree to a modification proposed by the government, Judge Baker concluded that the PTA's plain terms allowed the CA to withdraw.