(1) Negotiation.

Pretrial agreement negotiations may be initiated by the accused, defense counsel, trial counsel, the staff judge advocate, convening authority, or their duly authorized representatives. Either the defense or the government may propose any term or condition not prohibited by law or public policy. Government representatives shall negotiate with defense counsel unless the accused has waived the right to counsel.

(2) Formal submission.

After negotiation, if any, under subsection (d)(1) of this rule, if the accused elects to propose a pretrial agreement, the defense shall submit a written offer. All terms, conditions, and promises between the parties shall be written. The proposed agreement shall be signed by the accused and defense counsel, if any. If the agreement contains any specified action on the adjudged sentence, such action shall be set forth on a page separate from the other portions of the agreement.

The convening authority may either accept or reject an offer of the accused to enter into a pretrial agreement or may propose by counteroffer any terms or conditions not prohibited by law or public policy. The decision whether to accept or reject an offer is within the sole discretion of the convening authority. When the convening authority has accepted a pretrial agreement, the agreement shall be signed by the convening authority or by a person, such as the staff judge advocate or trial counsel, who has been authorized by the convening authority to sign.

  1. Either side may propose any term or condition not prohibited bylaw or public policy.
  2.  Must be in writing, encompassing all terms, and signed byaccused and defense counsel.

a.United States v. Mooney, 47 M.J. 496 (C.A.A.F. 1997). Military judge erred by accepting accused’s guilty plea and pretrial agreement after it was clear that the pretrial agreement was not in writing as required by RCM 705(d)(2). However, while CAAF criticized counsels’ and the judge’s disregard for the rule, court held that reversal of conviction not required where the specific terms of the oral agreement were placed on the record, all parties acknowledged and complied with terms of agreement, and accused conceded that he received the benefit of the bargain.

b.United States v. Forrester, 48 M.J. 1 (C.A.A.F. 1998). Term in stipulation of fact which required the accused to waive his right to “any and all defenses” did not violate RCM 705 or public policy. CAAF cautions the Government not to attempt to avoid the requirements of RCM 705(c)(1)(B) by including terms in a document other than the pretrial agreement itself (terms must not be in a stipulation of fact).

  1.  Is within sole discretion of convening authority; must be signed by CAor person authorized by CA to do so.

a.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. Accused’s counsel did inform the military judge that no punishment under Article 13 or restriction tantamount to confinement had occurred. While the judge’s failure to discuss the term was error, the accused failed to show the error materially prejudiced a substantial right.

b.United States v. Dunbar, 60 M.J. 748 (A. Ct. Crim. App. 2004). The accused’s PTA stated “[a]ny adjudged confinement of three (3) months or more shall be converted into a [BCD], which may be approved; any adjudged confinement of less than three (3) months shall be disapproved upon submission by the accused [of a Chapter 10]” with a handwritten annotation stating “with an Other Than Honorable (OTH) discharge.” The MJ sentenced the accused to a BCD, two months confinement, and reduction to PFC, causing the parties to disagree whether the convening authority could approve the BCD. Defense argued the convening authority could not approve both an OTH and a BCD discharge. The government’s position was that the accused could submit a Chapter 10 and the convening authority must disapprove the two months confinement but the PTA did not require the convening authority’s approval of the Chapter 10. RCM 910(h)(3) provides, after the sentence is announced, if the parties disagree with the PTA terms the MJ shall “conform, with the consent of the Government, the agreement to the accused’s understanding or permit the accused to withdraw the plea.” The MJ did not clarify the accused’s understanding or attempt to conform the agreement. Findings and sentence set aside.

c.United States v. Sheehan, 62 M.J. 568 (C.G. Ct. Crim. App. 2005). Military judge failed to cover a misconduct clause and “specially negotiated provisions” of the accused’s PTA and provided an incorrect explanation as to another provision. CGCCA found that the military judge erred but that his omissions and misleading explanation did not prejudice the accused’s substantial personal rights.

d.United States v. Sharper, 17 M.J. 803 (A.C.M.R. 1984) (“While the military judge may not have the authority to directly intervene in the pretrial negotiations between an accused and a convening authority, he does have the responsibility to police the terms of pretrial agreements to insure compliance with statutory and decisional law as well as adherence to basic motions of fundamental fairness.”)

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