Inquiry into the Pretrial Agreement (PTA)

Representing Guilty Clients: How do defense lawyers sleep at night?

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Overview of the inquiry into the pretrial agreement (PTA):

The military judge must fully explore the terms of the PTA with the accused to ensure he understands them. This includes both the offer portion and the quantum (though the judge does not see the quantum until after sentence is announced).

  1. United States v. Soto
    , 69 M.J. 304 (C.A.A.F. 2011) (where a term in the quantum whereby the accused agreed to ask for a BCD was not discussed with the accused on the record, there was a substantial basis in law to question the plea. The plea was deemed improvident.)
  2. United States v. Green , 1 M.J. 453 (C.M.A. 1976) (military judge must establish “on the record that the accused understands the meaning and effect of each provision in the pretrial agreement”).
  3. United States v. Felder , 59 M.J. 444 (C.A.A.F. 2004). Military judge did not inquire into a term of the PTA regarding defense’s waiver of any motions for sentence credit based on Article 13 and/or restriction tantamount to confinement. Defense counsel did inform the MJ that no punishment under Article 13 or restriction tantamount to confinement had occurred. While the MJ’s failure to discuss the term was error, the accused failed to show the error materially prejudiced a substantial right.
  • United States v. Brehm, ARMY 20070688, [ not available on Westlaw ] (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 May 13, 2009) (unpublished).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.”

Court Martial Lawyers – Alexandra González-Waddington & Michael Waddington Attorneys at Law

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