Withdrawal from the Pretrial Agreement

Overview of withdrawal from the pretrial agreement:

Under RCM 705(d)(5)(a), “The accused may withdraw from a pretrial agreement at any time; however, the accused may withdraw a plea of guilty or a confessional stipulation entered pursuant to a pretrial agreement only as provided in RCM 910(h) or 811(d), respectively.” a.
United States v. Bray , 49 M.J. 300 (C.A.A.F. 1998). A convening authority may increase the sentence cap of a pretrial agreement when an accused withdraws a guilty plea after successful completion of a providence inquiry and, in the same court-martial, later reenters pleas of guilty to the same charges. The accused entered guilty pleas to assault and battery on a child, communicating a threat, and drunk driving. During extenuation and mitigation, a defense witness testified that the accused could have committed the offenses after being exposed to insecticide poisoning. Accused withdrew his guilty plea and from the pretrial agreement, which limited confinement to 20 years to pursue the “bug spray” defense. Accused obtained a new pretrial agreement after changing his mind. The sentence cap under the new PTA limited confinement to 30 years. Neither case law nor RCM 705 prohibit a convening authority from increasing a sentence cap in a new pretrial agreement after the convening authority properly withdraws from the original pretrial agreement. Accused chose to reopen the initial providence inquiry based on the “bug spray” defense and voluntarily withdrew from the original agreement after full consultation with counsel. The consequences of withdrawal were addressed in the original agreement, explained on the record, and the accused failed to object at trial. b.
United States v. Olson, 25 M.J. 293 (C.M.A. 1987). Accused had right to withdraw his guilty plea in light of additional, unanticipated subtraction from pay, if he had good-faith belief that he had fully settled his liability to reimburse Government for overpayment under allegedly false travel vouchers and if that belief had induced accused’s entry of his pleas.Under RCM 705(d)(5)(b), the convening authority may withdraw from a pretrial agreement at any time before the accused begins performance of promises contained in the agreement, upon the failure by the accused to fulfill any material promise or condition in the agreement, when inquiry by the military judge discloses a disagreement as to a material term in the agreement, or if findings are set aside because a plea of guilty entered pursuant to the agreement is held improvident on appellate review. As a practical matter, once the accused begins performance, the convening authority has limited opportunity to withdraw from the PTA.

United States v. Dean, 67 M.J. 224 (C.A.A.F. 2009);
United States v. Manley, 25 M.J. 346 (C.M.A. 1987) (once accused completed performance of pretrial agreement, as modified by parties at trial, the convening authority was not authorized to unilaterally withdraw from the agreement).

  1. United States v. Dean, 67 M.J. 224 (C.A.A.F. 2009). On eve of trial, convening authority withdrew from pretrial agreement because the accused refused to modify stipulation of fact to include new (post-preferral) misconduct. Relying on RCM 704(d)(4)(B), court held the convening authority could not withdraw once the accused began performance of any promise in the agreement; in this case, accused had signed stipulation of fact, filed an amended witness (to conform with provision in pretrial agreement), and elected trial by judge alone. Government argued the parties had a disagreement to a material term, as the Government believed a “good conduct” provision was implicit in the agreement; CAAF summarily dismissed that argument and held the convening authority improperly withdrew from the agreement. Of note, the accused signed the stipulation of fact and elected trial by military judge alone the convening authority approved the pretrial agreement; the accused began performance before there was an approved agreement, and the Government could not withdraw once the convening authority signed the document.
  2. United States v. Williams, 60 M.J. 360 (C.A.A.F. 2004). Accused’s pretrial agreement required him to reimburse his victim(s) “once those individuals and the amounts owed have been ascertained.” On the day of trial the government withdrew from the PTA reasoning, under RCM 705(d)(4)(B), that the accused’s failure to reimburse his victim breached a material PTA term. Defense argued he was not in breach because the term failed to establish a time limit, allowing for restitution after trial. Defense requested specific performance of the PTA arguing (also under RCM 705(d)(4)(B)) that his execution of a stipulation of fact with the government constituted performance and he had not otherwise breached any material term. CAAF did not rule whether entrance into a stipulation of fact constitutes performance or whether the accused failed to fulfill a material term. CAAF, focusing on the parties’ failure to establish a meeting of the minds for the restitution time limit, held, under RCM 705(d)(4)(B), that the government can withdraw from a PTA if the MJ “discloses a disagreement as to a material term in the agreement.”
  3. United States v. Parker, 62 M.J. 459 (C.A.A.F. 2006). Accused entered into a PTA to plead guilty to AWOL and missing movement by neglect in return for the CA suspending any adjudged BCD or confinement in excess of thirty days. The military judge, however, rejected the accused’s plea to missing movement by neglect because the accused said he only overheard statements by his NCOs, as opposed to a direct or official conveyance, regarding the place and time of the movement. When the military judge rejected the accused’s plea, the government withdrew from the PTA and moved forward to trial before the military judge alone on the charge of missing movement by design. The military judge found the accused guilty of missing movement by design and sentenced him to a BCD and five months confinement. The N-MCCA held that the military judge erroneously rejected the accused’s plea by questioning the reliability of the information the accused relied upon to make his providence inquiry statements. Under this theory, the accused was entitled to his original PTA sentence limitation of a suspended BCD and no more than thirty-days confinement. After trial, however, the accused submitted a clemency letter stating he did not desire suspension of his BCD. CAAF held that the MJ did not erroneously reject the accused’s plea and defense never requested the MJ to reopen the plea. Therefore, PTA failed to exist and the accused’s express and repeated request for a non suspended BCD during his unsworn statement and clemency matters controls.
  4. United States v. Pruner, 37 M.J. 573 (A.C.M.R. 1993). Convening authority withdrew from proposed agreement by accused. Performance of pretrial agreement was not commenced per RCM 705(d)(5)(b) when accused had not yet signed proposed stipulation of fact and had not yet requested witnesses.
  5. United States v. Villareal, 52 M.J. 27 (C.A.A.F. 1999). Convening authority could lawfully withdraw from pretrial agreement based upon pressure from victim’s family members, who were opposed to permitting the accused to plead guilty to manslaughter instead of murder. The decision to withdraw was based in part on the advice of the CA’s superior. Afterward, the case was forwarded to a third, impartial CA, who convened the court, and the accused pled not guilty. CAAF, by a 3-2 vote, held that the military judge did not err in refusing to order specific performance of the pretrial agreement. The accused had not relied to his detriment on the agreement in any manner that would prejudice his right to a fair trial.
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