A. Impact of the 2016 Military Justice Act (2016 MJA)
1. The 2016 MJA made two significant changes to Article 45 governing plea practice. The first change enables the accused to plead guilty in capital cases, so long as death is not a mandatory punishment. The other change concerns the standard of appellate review of a guilty plea. This second change may influence practice significantly over time.
2. Under United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008), the standard of review of a plea was whether the record as a whole showed a “substantial basis in law or fact for questioning the guilty plea.” Under the 2016 MJA, the standard of review is harmless error: “[a] variance from this article is harmless error if [it] does not materially prejudice the substantial rights of the accused.” Art. 45, UCMJ. The intent of the change was to require the accused and government to identify errors in the guilty plea process and to bring them to the attention of the trial judge right away to correct them. Military Justice Review Group Legislative Report, at 399.
3. Effect of the change. The Military Justice Review Group analysis of the amendment to Article 45 states that the language is adapted from Fed. R. Crim. P. 11(h), except that it substitutes the word “affects” the substantial rights of the accused with “prejudices” the substantial rights of the accused. Military Justice Review Group Legislative Report, at 401. The standard is perhaps even more deferential than the Federal system. Appellate practitioners should recognize that the newer relaxed standard of review may result in different appellate outcomes for cases under the 2016 MJA. It will likely minimize the number of cases previously overturned for harmless errors.
B. Recognized Pleas. RCM 910(a)(1). There are two basic categories of pleas, guilty and not guilty. There are five different subcategories within them. A conditional guilty plea is a variation of the guilty plea. An accused must plea to both the charge and specification.
a) Guilty: “Your honor, the accused, SGT Archie, pleads as follows: To the Specification and to The Charge: Guilty.” **Note, if operating under the legacy plea and sentencing system, a plea of guilty may not be accepted in a capital case where a sentence of death is the mandatory punishment. The legacy system would be apply for offenses that predate 1 January 2019 if the accused does not opt-in to the new system.
b) Guilty by Exceptions: (pleading to AWOL rather than AWOL terminated by apprehension) “Your honor, the accused, SGT Archie, pleads as follows: To the Specification: Guilty, except the words, ‘he was apprehended.’ To the excepted words: Not Guilty. To the Charge: Guilty.”
c) Guilty by Exceptions and Substitutions: (pleading to wrongful appropriation rather than larceny, using exceptions and substitutions) “Your honor, the accused, SGT Archie, pleads as follows: To the Specification: Guilty, except the word ‘steal,’ substituting therefore the words ‘wrongfully appropriate.’ To the excepted word: Not Guilty; to the substituted words: Guilty. To the Charge: Guilty.”
2. Not Guilty:
a) Not Guilty of an Offense as Charged, but Guilty to a Named Lesser Included Offense (LIO): (pleading to wrongful appropriation as a lesser included offense of larceny) “Your honor the accused, SGT Snuffy, pleads as follows: To the Specification: Not Guilty, but Guilty to the lesser included offense of wrongful appropriation.” **Remember, that in order to plead to a LIO, the specification to which the accused is pleading guilty must be a presidentially prescribed LIO or the LIO must be “necessarily included” in the charged offense (i.e., you conduct the elements test). See MCM paragraph 3, Part IV and Appendix 12A.
b) Not Guilty: “Your honor, the accused, SGT Archie, pleads, to all Charges and Specifications, Not Guilty.” **Not Guilty Only by Reason of Lack of Mental Responsibility is not recognized in RCM 910(a)(1). It is treated as an irregular plea, which equates to a plea of not guilty. “The accused pleads as follows: To the Specification: Not Guilty only by reason of lack of mental responsibility.”
C. Effect of Pleas.
1. Government’s burden of proof. A plea of not guilty places the burden upon government to prove the elements of the charged offense(s) beyond a reasonable doubt. A guilty plea generally relieves the government of its burden.
United States v. Honea, 77 M.J. 181 (C.A.A.F. 2018). Charges were set aside and dismissed with prejudice where an accused entered a plea of not guilty to an offense, but submitted a specification of a LIO which was drafted at the military judge’s instance, and of which the accused was found guilty at trial. The CAAF held it is the government’s responsibility to definitively identify the offense against the accused.
2. Waiver. By pleading Guilty (unconditionally), the accused waives certain things:
a) Factual issues of guilt.der RCM 910(j), a plea of guilty that results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense(s) to which the plea as made.
b) Defects not raised at trial that are neither jurisdictional nor tantamount to a denial of due process. See United States v. Mooney, 77 M.J. 252 (C.A.A.F. 2019) (an unconditional guilty plea generally waives all nonjurisdictional defects at earlier stages of the proceedings).
c) Motion to suppress confession. MRE 304(f)(1); see United States v. Hinojosa, 33 M.J. 353 (C.M.A. 1991) (guilty plea waived right to contest motion denying suppression of confession).
d) Speedy Trial. See United States v. Tippit, 65 M.J. 69 (C.A.A.F. 2007)
1. Speedy trial rights provided under the 6th Amendment and RCM 707 are waived. RCM 707(c)
2. Trial counsel disqualification. See United States v. Bradley, 68 M.J. 279 (C.A.A.F. 2010)
e) Unreasonable multiplication of charges (UMC). An unconditional guilty plea, ordinarily, waives unreasonable multiplication of charges. See United States v. Hardy, 77 M.J. 438 (CAAF 2018) (finding that an unconditional guilty plea waived the issue of UMC but noting that its decision does not affect the power of ACCA to address unpreserved UMC objections under Article 66(c)).
f) Multiplicious charging. An unconditional guilty plea, ordinarily, waives multiplicity issues, unless those issues constitute plain error. United States v. Rhine, 67 M.J. 646 (A.F.Ct.Crim.App. 2009) (citing United States v. Powell, 49 M.J. 460, 464-65 (C.A.A.F. 1998)).
3. No Waiver. The following issues are not waived by an unconditional guilty plea:
a) Jurisdiction. United States v. Coffey, 38 M.J. 290 (C.M.A. 1993)
b) Ineffective assistance of counsel.
c) Unlawful command influence. United States v. Johnston, 39 M.J. 242 (C.M.A. 1994).
d) A properly litigated Article 10 motion. United States v. Mizgala, 61 M.J. 122 (C.A.A.F. 2005) (“A fundamental, substantial, personal right… should not be diminished by applying ordinary rules of waiver and forfeiture associated with guilty pleas.”).
e) Statute of limitations. Accused can, though, on the record, voluntarily and expressly waive the statute of limitations as a bar to trial. United States v. Province, 42 M.J. 821 (N-M Ct. Crim. App. 1995).
f) Selective prosecution not waived in situations in which facts necessary to make the claim were not fully developed at the time of plea. United States v. Henry, 42 M.J. 231 (C.A.A.F. 1995).
A. In general.
1. After the accused is arraigned under RCM 904, the military judge will call on the accused to plead. If the accused pleads guilty to any offense, the military judge will conduct a providence inquiry to ensure the accused understands the plea and the plea is voluntary and accurate. See RCM 910(c)-(e). If a plea agreement is involved, the military judge will also conduct an inquiry to ensure its validity.
2. The Care Providence Inquiry. “The record must reflect not only that the elements of each offense charge have been explained to the accused, but also that the military trial judge or the president has questioned the accused about what he did or did not do, and what he intended (where this is pertinent) to make clear the basis for a determination by the military trial judge or president whether the acts or the omissions of the accused constitute the offense or offenses to which he is pleading guilty.” United States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969).
B. Providence Inquiry- RCM 910(c)
1. Advice to the Accused: Before accepting a plea of guilty, the military judge must inform the accused of the rights he is waiving and ensure the accused understands:
a) The mandatory minimum penalty, if any, provided by law
b) The maximum possible penalty that may be adjudged for all offenses for which the accused is pleading guilty
c) The effect of any sentence limitation(s) provided for in a plea agreement on the minimum or maximum possible penalty that may be adjudged including the effect of any concurrent or consecutive sentence limitations
d) His opportunity to consult with counsel
e) That if he pleads guilty, he waives certain rights: the right against self-incrimination, the right to be tried by a court-martial, and the right to confront and cross-examine witnesses against him (with respect to the charges/specifications to which he has pled guilty)
f) That the accused may be convicted on the plea alone, without any further proof
g) That if the accused pleads guilty, he will be placed under oath and questioned by the military judge about the offenses to which the accused has pleaded guilty, and that those answers may be used against him in a prosecution for perjury or false statement
h) That if an election by the accused to be tried by military judge alone has been approved, the accused will be sentenced by the military judge.
2. Ensuring the plea is voluntary: The military judge must determine that the accused’s decision to plea guilty is voluntary and not a result of coercion. The military judge also must inquire whether the accused’s plea is the product of his own will. See RCM 910(d).
a) Appellate courts will ascertain whether the plea was knowing and voluntary by looking at the record of trial and deciding whether it is clear from the entire record that the accused knew the elements, admitted them freely, and pled guilty because he was guilty. See United States v. Redlinski, 58 M.J. 117 (C.A.A.F. 2003).
3. Ensuring the plea is accurate: The military judge must be satisfied that there is a factual basis for the plea. See RCM 910(e).
a) Military judge must advise the accused of the elements of each offense(s) to which the accused has pleaded guilty. RCM 910(c)(1) and discussion.
b) The accused is then questioned under oath about the offense(s). The military judge generally asks the accused whether the elements describe what he did and then asks the accused to explain in his words what took place to ascertain if the accused is truly guilty. The accused must admit every element of the offense(s) to which the accused pleaded guilty. RCM 910(e) discussion.
1. Leading questions by the military judge are generally disfavored. United States v. Nance, 67 M.J. 362 (C.A.A.F. 2009).
2. If the military judge conducts too little of an inquiry, the case may be set aside. United States v. Bailey, 20 M.J. 703 (1985) (A.C.M.R. 1985) and United States v. Frederick, 23 M.J. 561 (1985) (A.C.M.R. 1986) (military judge’s inquiry requiring simple yes or no answers when asked whether he did that which the specification alleged was inadequate).
3. The colloquy is between the Military Judge and the accused- not between the Military Judge and counsel. See United States v. Hartman, 69 M.J. 467 (C.A.A.F. 2011)(where military judge asked the trial counsel questions regarding the accused’s conduct within the confines of the Marcum factors in a consensual sodomy case, the CAAF held the plea improvident because the Military Judge failed to discuss those factors with the accused).
c) Lack of personal recollection is not a bar to pleading guilty. United States v. Moglia, 3 M.J. 216 (C.M.A. 1977). Accused need not describe from personal recollection all the circumstances necessary to establish a factual basis for the plea. Nevertheless, the accused must be convinced of, and able to describe all the facts necessary to establish guilt. See also RCM 910(e) discussion; United States v. Wiles, 30 M.J. 1097 (1989) (N.M.C.M.R. 1989).
C. Pretrial and Plea Agreement Inquiry - RCM 910(f)
1. The parties have an obligation to inform the military judge if a plea agreement exists.
2. The military judge must fully explore the entire plea agreement with the accused to ensure the accused understands the meaning and effect of the agreement and the parties agree to the terms of the agreement. RCM 910(f). See United States v. Green, 1 M.J. 453 (C.M.A. 1976) (military judge must establish “on the record that an accused understands the meaning and effect of each condition as well as the sentence limitations imposed by any existing pretrial agreement”).
3. Unclear or ambiguous terms, the military judge should seek clarification from the parties. If the military judge determines the accused does not understand the material terms of the agreement or the parties disagree, the military judge shall:
a) Conform, with the consent of the government, the agreement to the accused’s understanding; or
b) Permit the accused to withdraw the plea
4. Military judge cannot expand the terms of a plea agreement. United States v. Brehm, ARMY 20070688, (A. Ct. Crim. App. May 13, 2009) (unpublished). Accused pled guilty to indecent liberties with a child for an offense committed in 1999; charges were not forwarded until October 2006. At that time, the CAAF had not released its opinion in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), which held that the 2003 amendment to Article 43, UCMJ (excepting child abuse offenses from the five-year statute of limitations) did not apply retroactively. At the guilty plea, the military judge asked the accused if he intended to waive a possible statute of limitations challenge from “any hypothetical ruling” by the CAAF. The ACCA ruled that the military judge exceeded his authority by adding an additional term to the pretrial agreement (specifically, waiver of a potential statute of limitation defense). The court noted it would have “less concern” if the pretrial agreement expressly discussed a “bargained-for waiver of a hypothetical future defense.”
D. Stipulation of Fact Inquiry
1. The military judge must conduct an inquiry into the stipulation of fact (if there is one) to ensure that the accused understands it and has agreed to its contents knowingly and voluntarily.
2. Stipulations of fact and polygraphs. United States v. Clark, 53 M.J. 280 (C.A.A.F. 2000). Accused submitted a false claim, then took a polygraph (which he failed). He was charged and elected to plead guilty. Accused and convening authority agreed to PTA which included a promise to enter into “reasonable stipulations concerning the facts and circumstances” of his case. Military judge at trial noticed the polygraph in the stipulation, noted that accused had agreed to take a polygraph test and that the “test results revealed deception.” There was no objection to the stipulation and he admitted the stipulation into evidence. Applying MRE 707 and United States v. Glazier, 26 M.J. 268, 270 (C.M.A. 1988), CAAF held it was plain error for military judge to admit the evidence of the polygraph, even via a stipulation.
A. Accepted pleas. Ordinarily, a military judge will enter findings upon acceptance of the accused’s guilty plea, unless the accused pleads guilty to a lesser included offense and the trial counsel intends to “prove up” a greater offense. See United States v. Baker, 28 M.J. 900 (1989) (A.C.M.R. 1989) (military judge who knew that trial counsel intended to prove rape improperly entered findings pursuant to pleas of guilty to lesser included offense of carnal knowledge). See RCM 910(g).
B. Rejected pleas.
1. Improvident Guilty Pleas – generally where the accused attempts to plead guilty but fails.
a) Confusion about the maximum sentence may render plea improvident. United States v. Castrillion-Moreno, 7 M.J. 414 (C.M.A. 1979). But see United States v. Hunt, 10 M.J. 222 (C.M.A. 1981) (all factors are examined to determine if misapprehension of maximum punishment affected guilty plea, or whether the factor was insubstantial in accused’s decision). See also United States v. Poole, 26 M.J. 272 (C.M.A. 1988); United States v. Kyle, 32 M.J. 724 (1991) (A.F.C.M.R. 1991); United States v. Hemingway, 36 M.J. 349 (C.M.A. 1993).
b) Statements by the accused are inconsistent with plea. For a plea to be inconsistent with factual and legal guilt, there must be more than the possibility of a defense; however, if the accused reasonably raises a potential defense the military judge must resolve it to accept the plea. United States v. Johnson, 25 M.J. 553 (C.M.A. 1987). If accused’s comments or any other matter presented raise a defense, the military judge should explain the elements of the defense to the accused. The accused then has an opportunity to resolve the inconsistency. A plea is improvident only if there is evidence which negates the accused’s guilt. See RCM 910(h)(2), RCM 910(e) Discussion.
c) A plea may be improvident where the stipulation of fact sets up a matter inconsistent with the plea. United States v. Simpson, 77 M.J. 279 (CAAF 2017) (military judge must resolve inconsistency or reject the plea where stipulation of fact set up a matter inconsistent with the plea).
2. Irregular Pleas: Alford and nolo contendre pleas are not recognized under the UCMJ. If the accused attempts to enter such a plea (which purports to be a guilty plea without admitting criminality) the military judge is required to reject it. See RCM 910(b).
C. Effect of rejected pleas.
1. Plea(s) of not guilty are entered on behalf of the accused.
a) No automatic recusal of military judge required; however in a trial by military judge alone, recusal of the military judge will normally be necessary when a plea is rejected or withdrawn after findings. RCM 910(h)(2) discussion. See United States v. Rhule, 53 M.J. 647 (A. Ct. Crim. App. 2000) (finding the Army preference is for the MJ to recuse himself)
b) In a trial with members, a mistrial will ordinarily be necessary when a plea is rejected or withdrawn after findings. RCM 910(h)(2) discussion.
2. Use of testimony gained from “busted” (unsuccessful) providence inquiry.
a) RCM 910(c)(5) allows for accused to be prosecuted for perjury or for making false statements during a providence inquiry.
b) MRE 410(a) addresses the “Inadmissibility of Pleas, Plea Discussions, and Related Statements” made during the course of “any judicial inquiry” regarding a plea of guilty which is later withdrawn. MRE 410(a) goes on to state, however, that such statement(s) are admissible “in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it.” See United States v. Doran, 564 F.2d 1176 (5th Cir. 1977), cert. denied, 435 U.S. 928 (1978). See also United States v. Mezzanato, 513 U.S. 196 (1995) (statements made during plea negotiations admissible where accused decided to plead not guilty and understood the nature of agreement).
D. Accused’s Withdrawal of an Accepted Guilty Plea. RCM 910(h)(1). If after acceptance of the plea but before the announcement of sentence the accused requests to withdraw his plea, the accused can do so only for good cause shown.
A. Panel Not Notified of Guilty Plea. Generally, the panel will not be informed when the accused enters mixed pleas. The military judge should ordinarily defer informing the members of the offenses to which the accused pled guilty until after the findings on the remaining contested offenses have been entered. RCM 910(g) Discussion; RCM 913(a) see United States v. Smith, 23 M.J. 118, 120 (C.M.A. 1986). See also United States v. Hamilton, 36 M.J. 723 (1992) (A.C.M.R. 1993) (reversible error to advise members that accused had pled guilty to other offenses).
1. If the accused requests the panel to be informed of guilty pleas; or
2. If guilty plea is to a LIO and the trial counsel intends to prove the greater offense. RCM 913(a) discussion. United States v. Irons, 34 M.J. 807 (1992) (N.M.C.M.R. 1992) (military judge committed error in not cleaning up flyer, which reflected the greater offense to which the accused pled not guilty and which the government did not intend to pursue, was not waived by accused’s failure to object; sentence set aside).
3. In cases of multiple offenses, however, the military judge should instruct the panel that it may not use the plea of guilty to one offense to establish the elements of a separate offense. RCM 920(e) discussion. Cf. Hamilton, 36 M.J. 723 (A.C.M.R. 1993).
C. Admissibility of the accused’s statements made during the providence inquiry.
1. Use of providence inquiry statements during the merits phase in a mixed plea.
a) United States v. Grijalva, 55 M.J. 223 (C.A.A.F. 2001). Accused shot his wife. At trial, MJ rejected the accused’s plea of guilty to attempted premeditated murder, but accepted his plea to the lesser-included offense of aggravated assault by intentional infliction of grievous bodily harm. On the merits (of the greater offense) the MJ used not only the accused’s plea to the lesser offense, but also his admissions during the GP inquiry. The MJ then convicted the accused of attempted premeditated murder. Following settled case law, CAAF held the MJ properly used the accused’s plea to the lesser-included offense, but erred by considering the accused’s statements during the plea inquiry.
b) United States v. Ramelb, 44 M.J. 625 (A. Ct. Crim. App. 1996). Providence inquiry can be used only to establish common elements between LIO and greater offenses. After accused pled guilty to LIO of wrongful appropriation, TC proved greater offense of larceny through testimony about what accused said in providence inquiry concerning intent. TC must obtain independent evidence to prove greater offense.
2. Use of providence inquiry statements on sentencing.
a) United States v. Holt, 27 M.J. 57 (C.M.A. 1988). Sworn testimony given by accused during providence inquiry may be received as an admission at sentencing and can be provided either by properly authenticated transcript or by testimony of court reporter or other persons who heard what accused said during providence inquiry.
b) United States v. Dukes, 30 M.J. 793 (1990) (N.M.C.M.R. 1990). Court indicated that Holt permits the trial counsel to offer an accused’s responses during the providence inquiry into evidence, “but that such responses are not automatically in evidence . . . an accused must be given notice of what matters are being considered against him . . . opportunity to object . . . on grounds of improper aggravation, undue prejudice, or whatever.” See also United States v. Irwin, 42 M.J. 479 (C.A.A.F. 1995) (accused’s description of his misconduct–AWOL, rape, sodomy, indecent acts, kidnapping, threats, and unlawful entry–was so detailed and graphic that trial counsel played tape to members; tape was proper aggravation under RCM 1001(b)(4) and not cumulative because there was no stipulation of fact).
c) United States v. Figura, 44 M.J. 308 (C.A.A.F. 1996). CID agent charged with forgery. Trial counsel sought to use providence inquiry to establish the dates of checks, where written, and where the checks were cashed because information did not appear in stipulation of fact. Parties agreed to have MJ summarize for court members the information stated during providence inquiry, rather than have a written stipulation or spectator testimony. Court held there is no demonstrative right or wrong way to introduce evidence taken during providence inquiry, and that MJ giving summary to members was probably to the accused’s advantage.
A. RCM 910(a)(2). “With the approval of the military judge and the consent of the Government, an accused may enter a conditional plea of guilty, reserving the right, on further review or appeal, to review of the adverse determination of any specified pretrial motion. If the accused prevails on further review or appeal, the accused shall be allowed to withdraw the plea of guilty.”
B. Coordination with Government Appellate Division (GAD).
1. In the Army, SJAs will consult with the Chief, GAD, before the government consents to an accused entering a conditional plea of guilty.
a) AR 27-10, para. 5-34 (1 Jan 2019) (“Because conditional guilty pleas subject the government to substantial risks of appellate reversal and the expense of retrial, SJAs will consult with the Chief, Government Appellate Division (GAD) prior to the government’s consent regarding an accused entering a conditional guilty plea at court-martial.”)
b) Once this coordination is complete, the trial counsel may consent, on behalf of the government, to the entering of the conditional guilty plea by the accused). See generally RCM 910(a)(2) (“The Secretary concerned may prescribe who may consent for the Government…”).
C. Issue Should be Case Dispositive.
1. The motion or issue in question should be case dispositive. (RCM 910 analysis (MCM 2016 ed.). But note, only the Air Force requires that the issue be case dispositive. (See AFI 51-201, para 12.4).
2. Practice Tip: where a conditional guilty plea is NOT case dispositive as to either the issue preserved for appeal or to all of the charges in a case, the military judge should address as part of the providence inquiry the understanding that the accused and the parties have as to the result of the issue prevailing on appeal.
3. Additionally, even if the conditional plea issue is not case dispositive, it might be best to narrowly tailor the conditional plea.
a) United States v. Mapes, 59 M.J. 60 (C.A.A.F. 2003). Accused convicted of involuntary manslaughter and various other offenses arising from his injection of a fellow soldier with a fatal dose of heroin. Accused entered into a pretrial agreement that permitted him to enter a conditional plea pursuant to RCM 910(a)(2) that preserved his “right to appeal all adverse determinations resulting from pretrial motions.” At trial, accused moved to dismiss all charges due to improper use of immunized testimony and evidence derived from that immunized testimony in violation of Kastigar v. United States, 406 U.S. 441 (1972). Although the CAAF dismissed most of the charges and specifications due to the Kastigar violation, accused was permitted to withdraw his plea to those remaining offenses which were not directly tainted by that violation, as the violation caused or played a substantial role in the GCM referral of those offenses. In so doing, CAAF noted that although military practice, unlike its federal civilian counterpart, does not limit conditional pleas to issues that are dispositive, there should be “cautious use of the conditional plea when the decision on appeal will not dispose of the case.” See also United States v. Proctor, 58 M.J. 792 (A.F. Ct. Crim. App. 2003)
D. Issue Must be Raised at Trial. United States v. Forbes, 19 M.J. 953 (1985) (A.F.C.M.R. 1985) (accused’s failure to make motion to suppress drug test waived issue despite conditional plea).