The maximum sentence appendix to the PTA in the Craven case provided :  “The approved sentence will not exceed confinement in excess of thirty-six months [36].”  The adjudged sentence in the case was confinement for 34 months, a DD, and reduction to E-1.  The CA approved the DD, 28 months of confinement, and reduction to E-1.  The question on appeal is whether the CA violated the PTA by approving a sentence that, in the aggregate, exceeded confinement for 36 months.  No, held AFCCA in a published opinion.  United States v. Craven, __ M.J. ___, No. ACM 37451 (A.F. Ct. Crim. App. May 19, 2010).  Senior Judge Jackson wrote for a unanimous panel.

On the record, the military judge stated, and the parties agreed, that under the maximum sentence appendix, the CA could approve the sentence as adjudged.  The SJA similarly advised the CA and the defense didn’t object. 

AFCCA held that the PTA term was ambiguous.  The court reasoned:

Does the pretrial agreement provision at issue in this case mean, as the appellant suggests, that the convening authority can only approve an adjudged punishment of confinement and that confinement cannot exceed 36 months? Or does this provision mean, as the appellee suggests, that the convening authority can approve any adjudged punishment, but if the convening authority approves any adjudged confinement that confinement cannot exceed 36 months? The fact that the provision begins with the words “the approved sentence” rather than “the approved sentence to confinement” and the fact that the pretrial agreement does not contain language stating that “there are no other restrictions on the convening authority’s ability to approve other forms of punishment that may be adjudged” supports the appellant’s position. However, the fact that the provision discusses only confinement and does not contain language specifically limiting the convening authority’s ability to approve other forms of adjudged punishment—for example, “only confinement, if confinement is adjudged, will be approved and no other forms of adjudged punishment will be approved” or “no punitive discharge, reduction in rank, or forfeitures, if adjudged, will be approved”—supports the appellee’s position.

Id., slip op. at 4.

Having found the PTA to be ambiguous, the court turned to extrinsic evidence of the provision’s meaning.  Based on the parties’ interpretation as stated on the record and the defense’s failure to object to the SJA’s advice that the CA was free to approve the sentence as adjudged, AFCCA held that the PTA limited only the confinement portion of the sentence and not the sentence as a whole.

QUERY:  what if the PTA said “the approved sentence will not exceed confinement for 36 months,” the military judge adjudged confinement for 36 months and a DD, and the CA approved confinement for 36 months and a DD?  Would there be any ambiguity in that instance?  If not, would a CCA be precluded from affirming the DD even if the parties misconstrued the PTA’s unambiguous language to allow for approval of the sentence as adjudged?

33 Responses to “Published AFCCA decision on PTA maximum sentence appendix interpretation”

  1. John O'Connor says:

    I don’t like to throw stones, but that PTA language is uncommonly stupid.

    As for your PTA, Dwight, I see a PTA as a contract. If you view your hypothetical languiage as unambiguous (I don’t), I would say you’d reform it under ordinary contract principles (provided, of course, that there’s evidence to support a mutual inent that the only limitation extends to the confinement portion of a sentence, an intent that seems rather obvious under these circumstances).

  2. Anonymous says:

    this is all clever, and certainly indicative that CAs and SJA crim law shops should remember that there are lawyers on the appellate side so exactness in language is always advised.

    so I understand the idea that a smart crim law shop will say confinement is limited to ____ but any other lawfully adjudged punishment including fine, forfeiture, discharge, or reduction in rank is authorized.

    Still, with all that, does anyone REALLY think there is/was any confusion with the fact that a PTA is a limitation on anything other than confinement?

    I mean it’s in the script when the MJ asks both parties if there is anything other than a limitation on confinement in the Quantum. If the intent is that there is a limitation on discharge, etc. then the answer to that question would necessarily be, yes, there is.

  3. Cloudesley Shovell says:

    I was hoping the opinion would include some surrounding language in the PTA. For example, did the PTA address the discharge, reduction, fines, forfeitures, etc.? Unfortunately the opinion doesn’t say. If each portion of the sentence was addressed in a separate sub-paragraph, then the decision is easy.

    If the single sentence was the entirety of the sentence limitation provision in the PTA, I would say the Court got it wrong. Yes, it’s a contract, but it’s a contract in a criminal prosecution. I’m a stickler for the rule of lenity, even if courts almost never cite it any more, and I say sloppy PTA provisions ought to be construed against the government, particularly since the gov’t is normally the drafter of the PTA and is the party with the lion’s share of bargaining power.

    If one wants CAs and SJAs to be precise in PTAs, the surest way to do it is to resolve PTA language against the government in cases like this. Spank an SJA or two, hold the gov’t’s feet to the fire, and the problem should go away.

  4. Anonymous says:

    But at trial, and I dont know if the AF follows the same script as the Army, so maybe this is a poor assumption, but when the judge asks if there is any limitation other than on confinement in the quantum, and both sides say no, why aren’t we done at that point?

  5. John O'Connor says:

    Dear Cloudesley,

    I fear you’ve left your brain at Scilly.

    Throwing little baby fits and creating unintended (and unjust) windfalls on the theory that this will get the government to right its ship is not effective. That sort of thing has no deterent effect because the players are always changing at the trial level.

    I can think of no good theory for construing PTA provisions against the government. The rule of lenity applies to criminal statutes, and has no credible application to construing a PTA. As for the premise that the PTAs are usually drafted by the government, in my three years as a TC, I only once prepared a PTA (and that was because I was in a hurry to go home and didn’t want to wait for the DC to do it — I used the defense bar’s standard language).

    As in any contract matter, the fundamental purpose of any court, trial or appellate, in construing a PTA ought to be to effectuate the parties’ mutual intent. No baby fits and intentionally depriving the parties of their intended result because the work was done sloppily (or is repeatedyl done sloppily).

  6. John O'Connor says:

    I misspelled deterrent.

  7. Anonymous says:

    well the PTA is usually prepared by the defense that is true, but to insinuate it isn’t completely a collaborative effort when discussing specific provisions is just plain wrong.

    The motions to be waived usually are put there because that’s a government demand, the quantum is most certainly something that has mutual input between the two parties.

  8. Phil Stackhouse says:

    It’s an interesting line – and it’s still somewhat unclear (perhaps without reading the entire opinion) whether this is the only line in the quantum/Maximum Sentencing Provision (what ever you want to call it). It would seem strange for there not to be some other language like – The sentence may be approved as adjudged; however, all confinement in excess of 36 months will be disapproved.

    Is it lazy drafting? Is it a – this is the way we always do it? It looks like both sides just punted it and AFCCA had to clean it up.

  9. Anonymous says:

    and repeatedly.

  10. RY says:

    What I find problematic is the circular reasoning. They begin by citing the record where the parties agreed with the MJ’s interpretation of the appendix, then say the appendix is ambiguous, and then go back to the parties’ agreement at trial to resolve the purported ambiguity. I agree with Mr. Sullivan’s notion that the analysis needs to begin with the language in the PTA. Absent ambiguity the analysis really ends there. As with contract law, parties don’t get to modify the terms just because in retrospect it was drafted sloppily or creates a windfall that may not have been immediately apparent to both parties.

  11. Rich Federico says:

    I disagree with JOC’s view that “throwing baby fits,” as he describes it, has no deterrent effect because “the players are always changing at the trial level.” The entire point of publishing opinions in a common law system is so that all practicioners, even first-timers to a particular circuit, can read and be on notice of the law. I have been in a supervisory TC role in the fleet when CCA or CAAF opinions “threw baby fits” (or huge daddy fits, e.g. Moreno) — and they had an impact on how we did business in our AOR. The players are constantly changing in every jurisdiction but ignorance of the law is no excuse. A good SJA/TC will be prepared to brief a CA about the status of the law and how to avoid the pitfalls of past cases.

    Also, as noted by several comments, the language used and SOP for drafting PTAs differs signficantly between the services. As a TC for 5+ years, I was trained to never let the defense draft the PTA. Even though most provisions are boilerplate and all language is subject to negotiation, we always wanted the Government to set the terms up front.

    You can’t cure slopping drafting and at times the four corners of the document must be interpreted against the government (and vice-versa). Once that happens, and convictions flipped in published opinions, all diligent practicioners are on notice.

  12. DC Steve says:

    Actually, the script I know asks if there is anything other than a limitation on sentence. This is different than asking if there is a limitation on confinment.

    (ie, no need to discuss with MJ that the quantom contains a no kick deal. But, if the quantom includes a promise by the CA to send the accused to a certain brig (bad idea BTW), it would have to be discussed before the announcement of sentence.)

  13. RY says:

    BTW, I think some clarification is in order on this aspect of the script. As I recall, the purpose for this inquiry is to ensure an accused was not, for example, coerced into the PTA, or promised matters which cannot be delivered. To that extent, the inquiry is not one which requires telling the MJ every aspect of the Appendix not related to confinement. There is, afterall, a compelling reason MJ’s are not supposed to know the terms in a GP/MJ alone trial until after sentencing. Consequently, this inquiry on the record is of marginal relevance IMHO.

  14. AF reserve says:

    I agree with Rich Federico in that all good practioners keep current on appellate decisions and adjust accordingly. I only point out that AF practice (or at least it used to be) is also for the Government to draft the PTA. Sadly, the PTA language was probably reviewed by many eyes and still managed to be ambiguous. The court’s direction to follow the guidance in the RCM and AFIs is well worth heeding. In the words of Lionel Hutz, “These books behind me don’t just make the office look good, they’re filled with useful legal tidbits.”

  15. Anonymous says:

    Just because the government wouldn’t have agreed to the PTA if they had actually taken the time to read and understand it doesn’t mean it’s ambiguous. If the language is really an unambiguous limitation on the sentence, then it should be enforced, regardless of what the government lawyer thought at trial.

  16. Late Bloomer says:

    In trying to divine the parties’ intent, shouldn’t the court first look to the plain language found within the four corners of the document? It seems like AFCCA was looking to the record for evidence of ambiguity, all the while the plain language of the contract seems pretty unambiguous.

    “The approved sentence will not exceed confinement in excess of …” That reads pretty clear and unambiguous. The only reason there is any ambiguity is because we know that is not the “normal” PTA provision. But normal usage is a secondary (or perhaps tertiary) means of determining intent, no?

  17. Dwight Sullivan says:

    Here’s the Craven maximum sentence appendix in its entirety:

    “1. As consideration for the offer of the accused to plead guilty as set forth in the Offer for Pretrial Agreement, dated 24 February 2009, the convening authority will undertake that:

    “The approved sentence will not exceed confinement in excess of thirty-six months (36).

    “2. This is the original Appendix A submitted with the Offer for Pretrial Agreement.”

  18. Cap'n Crunch says:

    Another results-oriented ruling by the AFCCA that completely ignores applicable law (and even basic contract law). The provision of the PTA is clear and unambiguous. Ambiguity only exists if the actual text is capable of more than one interpretation, and here it is not. If it was not the intent to allow only up to 36 months of confinement, then the TC should have specifically spelled that out. They did not. This should be an easy ruling by CAAF.

  19. Anonymous says:

    I agree that the term itself is unambiguous, but an ambiguity nonetheless arose as a result of counsel’s responses to the military judge, i.e. each counsel endorsed an understanding of the term which was at odds with its plain language.

    It was this ambiguity which the court had the responsibility to resolve and which could not be resolved by reference to the plain language alone.

  20. Anonymous says:

    I disagree, if the specific script calls for the question, are there any other provisions other than a limitation on confinement, that’s pretty clear that a no answer means the only thing in the quantum is a limitation on confinement, not anything else.

  21. RY says:

    But the answer does not require divulging the terms in the appendix only an inquiry on the effect.

  22. Cloudesley Shovell says:

    Thanks for the update–there is no ambiguity in the PTA language. Absent ambiguity, there is no reason to look outside the document.

    The gov’t is the party with the windfall here.

    NMCCA has done the same thing in cases where the CA screws up the language in his action and fails to properly approve the punitive discharge, bending over backwards to save the gov’t from the consequences of its actions.

  23. Cloudesley Shovell says:

    Holding a party to the unambiguous language of a contract is not “throwing little baby fits.” In light of DS’s update below, the language appears pretty unambiguous to me.

    The party getting a windfall here is the gov’t. I have never in my career ever seen a PTA that did not discuss each portion of the sentence (discharge, reduction, fines, forfeitures, and confinement) in a separate paragraph until this case.

    As for drafting PTA’s, my experience was that the gov’t drafted them all.

    I’m sorry you don’t like my rule of lenity analogy.

    Yrs humbly,

  24. Anonymous says:

    Huh? If the answer is that there are no OTHER terms save a restriction on confinement, it absolutely does reveal that the only term involved is a restriction on confinement.

    I mean if they’d typed what was in the script into the quantum, we wouldn’t be here because it would be clear there wasn’t anything other than a restriction on confinement, all other lawful sentence provisions are acceptable.

  25. Anonymous says:

    Interesting, because almost every Quantum I’ve ever seen simply had a limitation on sentence, and that was it, aka fairly similar to this case.

  26. DC Steve says:

    Seems like a bizare situation. If you look at the agreement and the record, there was a meeting of the minds, both parties seem to agree on a sentence cap (with no limitation on a punitive discharge). But the PTA failed to reflect what they agreed to.

    So, if the PTA failed to state the terms of their agreement, I guess they had an oral agreement.

    But, wait, doesn’t the RCMs say something about that?!?

    (its bad…very bad).

    I suppose I could walk into court with a blank quantom, and as long as all parties agree on the record as to the terms, well, we are good to go. At least, since the quantom is blank, our oral agreement would not contradict the written agreement (as it did in this case).

  27. anonymous says:

    The rule requires agreements to be written, but doesn’t the agreement of parties reflected in the record of trial constitute a “writing”?

    At any rate, I think the judge here simply corrected an apparent drafting error in the PTA to conform it to the actual intent of the parties.

  28. Late Bloomer says:

    I would say that the agreement of the parties reflected in the record constitutes a “writing” insofar as they must sign off [ratify?] on the record for authentication. But you could argue that the purpose of authentication is not to memorialize any kind of contractual understanding, but instead to agree that the written transcript is a true and accurate representation of what occurred verbally.

    On your second point. I disagree. The FIRST place we look to determine the “actual intent” of the parties is to the document itself. Here, the AFCCA looked beyond the document (parole evidence rule???) to determine intent, and then retroactively applied that to what was once clear and unambiguous, although perhaps unusual.

  29. RY says:

    I get what you’re saying anon. My point is that it doesn’t apply in a variety of other situations b/c this inquiry is intended for other purposes. Consider a few examples:

    1) if the appendix in this case included two other terms: a) entrance into RTDP and b) deferment of confinement to run concurrently w/entrance in RTDP; counsel would anser the inquiry – “Yes, there are other terms.” What those terms are would not be divulged in a MJ alone trial. Consequently, I don’t see how this inquiry would answer whether or not the parties believed the first term, the one that started this thread, precluded a discharge or not.

    2) what if the adjudged sentence was 6 months confinement and a BCD? Does the term in the appendix preclude the BCD? What can the CA approve? If counsel believed the term could preclude approval of a punitive discharge, how would you answer this inquiry?

    In short, I get your point, but it doesn’t work in many other cases. I’m loath to interpret a PTA based on an inquiry only concerned with lawfulness of the agreement. I suspect that’s why the AFCCA ignored this inquiry and focused instead on the part of the script that actually deals with interpretation of the appendix.

  30. Anonymous says:

    The mere fact that there was a presence of other terms than a limitation on confinement, or simply an answer that there was an agreement that was a limitation other than confinement would answer the question.

    IOW, if the defense truly believed that this agreement meant no rank reduction, no discharge, and no forfeitures, then those would all be restrictions other than on confinement, and yes answer to the question would be anticipated.

    If they knew that this was simply a limitation on confinement and all other possible punishments were available to the judge, then that would anticipate a no answer, which is what we got.

    It’s a better gauge then simply saying, well, defense didn’t object until appeals.

  31. Keith Hodges, Army DCAP says:

    Annonymous, he only mispelled deterrent once.

  32. Mike says:

    I’m tired of this thread. Let’s talk about Lt Col Lakin some more.

  33. Anonymous says:

    you mispelled anonymous.