Filed: Aug. 20, 2001
Latest Update: Mar. 03, 2020
Summary: WHETHER APPELLANTS PLEAS OF GUILTY, WERE IMPROVIDENT BECAUSE THE CONVENING, AUTHORITY DID NOT COMPLY WITH THE TERMS OF, THE PRETRIAL AGREEMENT THAT REQUIRED, APPELLANT TO RECEIVE PAY AND ALLOWANCES, UNTIL THE CONVENING AUTHORITY TOOK ACTION IN, HIS CASE.GCMCO No. 1.referral of the charges.
IN THE CASE OF
UNITED STATES, Appellee
v.
Gregory K. WILLIAMS, Specialist
U.S. Army, Appellant
No. 01-0010
Crim. App. No. 9601112
United States Court of Appeals for the Armed Forces
Argued May 22, 2001
Decided August 20, 2001
EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN, GIERKE, and BAKER, JJ., joined.
Counsel
For Appellant: Captain John N. Maher (argued); Lieutenant Colonel David A.
Mayfield and Major Mary M. McCord (on brief); Captain Arun J. Thomas.
For Appellee: Captain Jennifer A. Parker (argued); Colonel David L. Hayden,
Lieutenant Colonel Edith M. Rob, and Major Anthony P. Nicastro (on
brief).
Military Judge: Linda K. Webster
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Williams, No. 01-0010/AR
Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military judge
sitting alone convicted appellant, consistent with his pleas,
of willful disobedience of a superior commissioned officer,
assault consummated by a battery upon a child, and false
swearing, in violation of Articles 90, 128, and 134, Uniform
Code of Military Justice, 10 USC §§ 890, 928, and 934,
respectively. Contrary to his pleas, he was convicted of
murder, assault consummated by a battery, and wrongful
communication of a threat, in violation of Articles 118, 128,
and 134, UCMJ, 10 USC §§ 918, 928, and 934, respectively. On
June 20, 1996, appellant was sentenced to a dishonorable
discharge, confinement for 27 years, and reduction to the lowest
enlisted grade. The sentence did not include forfeiture of pay
or allowances.
The convening authority reduced the period of confinement
to 9 years and approved the dishonorable discharge and reduction
in grade to Private E-1. In addition, he deferred automatic
forfeitures under Article 58b, UCMJ, 10 USC § 858b, through July
13, 1998, the date of his action. The convening authority’s
action was consistent with the pretrial agreement, which (1)
limited confinement to 10 years and (2) provided for deferral of
automatic forfeitures through the date of the action.
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United States v. Williams, No. 01-0010/AR
On appellant’s petition, we granted review of the following
issues:
I. WHETHER THE COURT-MARTIAL CONVENED BY THE
COMMANDER, MILITARY DISTRICT OF WASHINGTON,
DID NOT HAVE JURISDICTION OVER APPELLANT
BECAUSE PRIOR TO REFERRAL ON 29 MARCH 1996,
THE IDENTICAL CHARGES REFERRED AGAINST
APPELLANT BY THE COMMANDER, FORT RITCHIE, ON
10 OCTOBER 1995, WERE NEVER WITHDRAWN.
II. WHETHER A 745-DAY DELAY BETWEEN THE
TRIAL AND THE CONVENING AUTHORITY’S ACTION
VIOLATES APPELLANT’S RIGHT TO A SPEEDY
REVIEW.
III. WHETHER APPELLANT’S PLEAS OF GUILTY
WERE IMPROVIDENT BECAUSE THE CONVENING
AUTHORITY DID NOT COMPLY WITH THE TERMS OF
THE PRETRIAL AGREEMENT THAT REQUIRED
APPELLANT TO RECEIVE PAY AND ALLOWANCES
UNTIL THE CONVENING AUTHORITY TOOK ACTION IN
HIS CASE.
For the reasons set forth below, we affirm.
I. JURISDICTION OF THE COURT-MARTIAL
A. Background
On October 10, 1995, Brigadier General (BG) Essig, the
commanding officer of Fort Ritchie, referred appellant’s case
for trial under General Court-Martial Convening Order (GCMCO)
No. 1. Appellant was arraigned on October 19. On October 26,
BG Essig transmitted this case to Major General (MG) Foley, the
commander of the Military District of Washington, who was BG
Essig’s immediate superior in the chain of command. In the
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United States v. Williams, No. 01-0010/AR
transmittal, BG Essig noted, “I previously referred this case to
trial by General Court-Martial convened by Court-Martial
Convening Order Number 1, this headquarters, dated 24 February
1995.”
When BG Essig retired on October 31, Lieutenant Colonel
(LTC) LeFleur became the acting commander and the general court-
martial convening authority at Fort Ritchie. Later that day, MG
Foley withdrew LTC LeFleur’s authority to convene general
courts-martial and reserved it to himself. See RCM 601(b),
Manual for Courts-Martial, United States (2000 ed.).∗
After several pretrial sessions were held under Article
39(a), UCMJ, 10 USC § 839(a), MG Foley referred the case to
trial under GCMCO No. 2, Headquarters, Military District of
Washington. At this point, appellant had been arraigned but had
not yet entered his pleas. This action reflected the
recommendation of his Staff Judge Advocate (SJA), who described
the action as a “re-referr[al]” of the charges. The SJA
provided MG Foley with the same pretrial advice he provided to
BG Essig prior to the first referral under Article 34, UCMJ,
10 USC § 834. The charges were identical to those in the first
referral, except for some minor pen-and-ink changes. The second
∗
All Manual provisions are cited to the current version, which are identical
to the ones in effect at the time of appellant's court-martial.
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United States v. Williams, No. 01-0010/AR
referral did not expressly withdraw the charges referred under
GCMCO No. 1.
Subsequently, defense counsel moved to dismiss the charges,
contending that the court-martial lacked jurisdiction because MG
Foley never properly withdrew the initially referred charges.
The military judge determined that MG Foley acted as BG Essig’s
successor convening authority, that the referral under GCMCO No.
2 was an implicit withdrawal of the charges referred under GCMCO
No. 1, and that the re-referral was motivated by the need to add
new members because so many had transferred since the original
referral. Based on these findings, the military judge concluded
that the withdrawal and re-referral of charges was proper and
denied the motion.
B. Discussion
When charges are referred to a court-martial, that court
retains jurisdiction over the case from the point of referral
through authentication of the record by the military judge,
except when the convening authority withdraws the charges from
the court-martial under RCM 604(a). See United States v.
Seward, 49 M.J. 369, 372 (1998). Unless the charges are withdrawn
for an “improper reason,” the convening authority may re-refer
the withdrawn charges to a different court-martial. See RCM
604(b).
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United States v. Williams, No. 01-0010/AR
In the present case, when BG Essig retired and MG Foley
withdrew the general court-martial convening authority from LTC
LeFleur and reserved it to himself, MG Foley thereafter acted as
a successor convening authority. In that capacity, he had ample
authority to withdraw the charges referred under GCMCO No. 1 and
to re-refer them under GCMCO No. 2.
Appellant does not contest MG Foley's authority to take
such actions, nor does he contend that the charges were
withdrawn for an improper reason. Appellant contends that the
convening authority did not withdraw and re-refer the charges as
a matter of fact and law. Appellant notes that no document
expressly reflects MG Foley’s intent to withdraw the charges
referred under GCMCO No. 1. Appellant also observes that trial
counsel stated early in the proceedings that MG Foley “let
stand” the initial referral and that an “amending order to GCMCO
1” would be forthcoming. Appellant further contends that the
mere act of re-referral under GCMCO No. 2 cannot be read to
imply an intent to withdraw. He argues that withdrawal and
referral under RCM 604 and 601 are separate and distinct acts
that cannot be merged into a singular act by implication.
We agree that withdrawal and re-referral of charges are
separate acts. Not every charge that is withdrawn inevitably is
re-referred. These functions, however, are closely related, and
it is reasonable to presume that re-referral of a charge by a
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United States v. Williams, No. 01-0010/AR
proper convening authority implies a decision to withdraw that
charge from a prior referral. Although it is preferable for a
convening authority to indicate this intent expressly, RCM 604
does not require that the convening authority memorialize this
decision in any particular form.
Although trial counsel mentioned earlier in the proceedings
that the convening authority "let stand" the initial referral,
trial counsel later made it clear that the Government viewed the
convening authority's actions as involving withdrawal and re-
referral of the charges. The question before us is whether the
circumstances reasonably reflect an intent to withdraw the
charges referred under GCMCO No. 1 and re-refer them under GCMCO
No. 2. At the time MG Foley re-referred these charges under
GCMCO No. 2, he had reserved to himself the full legal authority
to act as the general court-martial convening authority in this
and other cases at Fort Ritchie. In recommending referral under
GCMCO No. 2, MG Foley’s SJA specifically referred to the action
as a “re-referr[al],” and he even used the same pretrial advice
used by BG Essig’s SJA prior to the initial referral under GCMCO
No. 1.
Under the circumstances of this case, MG Foley’s intent to
withdraw the charges referred under GCMCO No. 1 was implicit in
his re-referral of those charges under GCMCO No. 2. Any
administrative deficiency in memorializing this process was
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United States v. Williams, No. 01-0010/AR
insubstantial and did not deprive the court-martial of
jurisdiction. See United States v. Stinson, 34 M.J. 233 (CMA
1992); United States v. Fricke,
53 M.J. 149 (2000); United States
v. Blaylock,
15 M.J. 190 (CMA 1983); United States v. Jette,
25 M.J.
16 (CMA 1987); RCM 601(a), Discussion; RCM 601(e)(1).
II. POST-TRIAL DELAY
Appellant’s court-martial ended with his sentencing on June
20, 1996. The convening authority did not take action on this
record until July 13, 1998 –- 753 days after completion of
trial, largely as a result of government errors, omissions, and
inattention.
Appellant has a right to a speedy post-trial review of his
case. United States v. Hudson, 46 M.J. 226, 227 (1997). The
length of the delay in this case –- over 2 years –- reflects
poorly on the administration of military justice. Under our
precedents, however, an unreasonable delay in the post-trial
review process will be tested for prejudice. United States v.
Banks,
7 M.J. 92, 94 (CMA 1979). Delay “will not be tolerated if
there is any indication that appellant was prejudiced as a
result.” United States v. Shely,
16 M.J. 431, 433 (CMA 1983).
Appellant contends that he was prejudiced by the delay
because he was denied post-trial pay and allowances that were
contemplated under the pretrial agreement. Our disposition of
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United States v. Williams, No. 01-0010/AR
his claim of prejudice is governed by our resolution of Issue
III, which is considered in the following section of this
opinion.
III. PRETRIAL AGREEMENT REGARDING POST-TRIAL PAY AND ALLOWANCES
A. Factual Background
The pretrial agreement between appellant and the convening
authority included the following provisions:
b. within thirteen days after sentence is
announced, [the convening authority will]
defer execution of all forfeitures of pay
and allowances until action is taken on the
case, and
c. waive all forfeitures of pay and
allowances for a period of six months and
direct payment of those funds to Michael and
Marcus Williams [(appellant's children)] in
equal shares[.]
The military judge conducted a post-sentencing inquiry into the
pretrial agreement and appellant's understanding of it. See RCM
910(h)(3); United States v. Green, 1 M.J. 453, 456 (CMA 1976). In
the course of that inquiry, there was a brief colloquy
concerning the foregoing provisions:
[MJ:] [I]n this case I did not adjudge
forfeiture of pay and allowances, therefore,
you get the benefit of that, if you will, in
that there are no forfeitures adjudged in
this case whatsoever.
Now, I will leave it to your counsel to
explain in more detail to you how the lack
of total forfeitures in this case. . . will
affect what happens to your pay upon ETS
date [(expiration of term of service)] and
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United States v. Williams, No. 01-0010/AR
the operation of any other provisions of law
that will come into play while you serve
your confinement.
Captain Robbins, Captain Ashley, I
would understand that you would take that
direction from me and discuss that in more
detail with him as far as the different
permutations that can apply, since I did not
adjudge any total forfeitures in this case.
DC (CPT Robbins): Yes, ma'am. We have
done so, anticipating how you ever might
have come out, and we will do so again.
MJ: All right. Thank you.
DC (CPT Robbins): Yes, ma'am.
Shortly thereafter, when the military judge asked whether
counsel agreed with her interpretation of the pretrial
agreement, defense counsel stated: "Again, Your Honor,
paragraphs B and C will have effect on the provisions of Article
58 of the code, but has no effect on your adjudged sentence
because you did not adjudge forfeitures."
Appellant was sentenced on June 20, 1996. On July 19, the
convening authority retroactively deferred automatic forfeiture
of pay and allowances beginning on July 3, the date they
otherwise would have taken effect. Appellant's term of
enlistment ended in February 1997, 7 months after the conclusion
of trial, after which he received no pay and allowances.
Sixteen months later, in June 1998, appellant provided the
convening authority with a post-trial submission under RCM 1105,
which included a contention that he was denied the benefit of
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United States v. Williams, No. 01-0010/AR
his pretrial agreement by virtue of his pay and allowances
ending with the expiration of his service in February 1997. As
noted at the outset of this opinion, the convening authority
reduced the amount of confinement but provided no monetary
relief when he took action on July 13, 1998.
B. Discussion
If an accused does not receive the benefit of the bargain
reflected in a negotiated pretrial agreement, the pleas will be
treated as improvident, the findings will be set aside, and the
accused will be subject to retrial. United States v. Mitchell,
50 M.J. 79, 82 (1999). Appellant contends that he bargained for
financial security for his family by ensuring that they would
receive his full pay and allowances from the date of sentencing
until 6 months after the convening authority's action. In light
of the delay in that action, discussed earlier, appellant
asserts that his full pay and allowances should have continued
until January 13, 1999, rather than terminating in February 1997
with the expiration of his term of service.
Appellant relies on United States v. Williams, 53 M.J. 293
(2000), and United States v. Hardcastle,
53 M.J. 299 (2000), for
the proposition that there was a misunderstanding among all
parties as to the Government's legal ability to comply with the
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United States v. Williams, No. 01-0010/AR
agreement during the period beyond his ETS, which rendered his
guilty pleas improvident.
Williams involved a pretrial agreement that included a 6-
month waiver of automatic forfeitures under Article 58b. During
the providence inquiry, the military judge advised the accused
that the convening authority had agreed to a 6-month waiver of
automatic forfeitures for the benefit of his dependents. Both
counsel indicated on the record their agreement with the
military judge's understanding of this provision. No one at
trial realized that because the accused was on legal hold beyond
the expiration of his obligated service, his right to pay and
allowances would be terminated immediately upon conviction under
applicable Department of Defense regulations.
On appeal in Williams, the Government conceded that the
plea was improvident as a result of a mutual misunderstanding
among the parties and the military judge as to the legal ability
of the Government to comply with a key provision of the pretrial
agreement. The Government also agreed that even if the
provision in question was collateral, the misunderstanding still
entitled the accused to rescind the agreement under United
States v. Bedania, 12 M.J. 373, 376 (CMA 1982), which held that
when collateral consequences of a court-
martial conviction -- such as administrative
discharge, loss of a license or a security
clearance, removal from a military program,
failure to obtain promotion, deportation, or
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United States v. Williams, No. 01-0010/AR
public derision and humiliation -- are
relied upon as the basis for contesting the
providence of a guilty plea, the appellant
is entitled to succeed only when the
collateral consequences are major and the
appellant's misunderstanding of the
consequences (a) results foreseeably and
almost inexorably from the language of a
pretrial agreement; (b) is induced by the
trial judge's comments during the providence
inquiry; or (c) is made readily apparent to
the judge, who nonetheless fails to correct
that misunderstanding. In short, chief
reliance must be placed on defense counsel
to inform an accused about the collateral
consequences of a court-martial conviction
and to ascertain his willingness to accept
those consequences.
(Emphasis omitted.)
We accepted the concessions from the Government in
Williams, as well as in Hardcastle, supra. In Hardcastle, we
distinguished United States v. Albert,
30 M.J. 331 (CMA 1990),
"where there was no representation by the convening authority,
trial counsel, or the military judge as to post-trial
entitlement to pay and the automatic forfeiture provisions of
Article 58b . . . were not
involved." 53 M.J. at 303.
In the present case, appellant bargained for two
protections in his pretrial agreement: (1) a limitation on
confinement and (2) a delay in the impact of potentially
applicable forfeitures of pay and allowances. At the time he
entered into this agreement, he did not know whether the
military judge would adjudge forfeitures, and he did not know
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United States v. Williams, No. 01-0010/AR
whether the convening authority would defer the automatic
forfeitures under Article 58b. Moreover, he did not know that a
subsequent decision would preclude application of automatic
forfeitures in cases arising prior to enactment of Article 58b.
See United States v. Gorski, 47 M.J. 370 (1997).
Because he could not be assured at the time of trial of
protection against adjudged or automatic forfeitures, he sought
in the pretrial agreement to protect his family against
potential forfeitures. Appellant received what he bargained for
in this regard. The adjudged sentence did not include any
forfeitures and there is no evidence that his pay was subjected
to automatic forfeitures.
Appellant's complaint is based on the termination of his
pay and allowances occasioned by the end of his term of service
in February 1997. The inquiry at trial, however, made it clear
that the pretrial agreement merely restricted application of
adjudged or automatic forfeitures if applicable. The agreement
did not purport to guarantee continuation of pay and allowances
under other circumstances, and the plea inquiry did not indicate
that the parties contemplated any such guarantee. The military
judge expressly noted the potential impact of appellant's ETS on
the continuation of his pay while in confinement, and she was
assured by defense counsel that they already had discussed this
matter in detail with appellant and that they would do so again.
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United States v. Williams, No. 01-0010/AR
See Bedania, supra at 376. Under these circumstances, in which
there was no representation as to entitlement of pay beyond his
ETS, by the convening authority in the pretrial agreement or by
trial counsel or the military judge during the trial, this case
is distinguishable from Williams and Hardcastle.
IV. DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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