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 .” 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?