Back in February the NMCCA decided United States v. Juckniewitz, No. 201200441 (N-M.Ct.Crim.App. Feb. 28, 2013) (unpublished) (opinion). Private First Class (PFC) Juckniewitz pleaded guilty at a special court-martial to one specification of conspiring to sell military property and one specification of selling military property, in violation of Articles 81 and 108, UCMJ. He was sentenced to confinement for six months, forfeiture of $745 pay per month for six months, reduction to E-1, and a bad-conduct discharge.

Pursuant to a pretrial agreement the convening authority disapproved the adjudged forfeitures. In the pretrial agreement the convening authority also “agreed to . . . defer and then waive any automatic forfeitures, provided that the appellant allot those funds to his spouse.” Slip op. at 2.

There was just one problem: one month before the convening authority approved the PTA, and two months before the June 2012 trial, PFC Juckniewitz reached his End of Active Obligated Service (EAOS) date, meaning that when he was confined post-trial he was also placed into a no-pay due status. “The appellant’s no-pay status while confined meant that there was no pay for him to forfeit automatically and allot to his spouse. Thus this PTA term was rendered meaningless.” Slip op. at 2. This, of course, conforms with “a long line of military appellate cases addressing similar facts.” Slip op. at 3 (citations omitted).

The PTA itself even contained the following perfectly-clear language:

I understand that if I am held in confinement beyond my End of Active Obligated Service (EAOS) date, then I will not receive any pay or allowances by operation of law, regardless of the terms of this agreement.

Slip op. at 3. So its perhaps unsurprising that, “The appellant assigns two errors, both pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).” Slip op. at 2. In Grostefon the Court of Military Appeals concluded:

Henceforth, we will require that when the accused specifies error in his request for appellate representation or in some other form, the appellate defense counsel will, at a minimum, invite the attention of the Court of Military Review to those issues and, in its decision, the Court of Military Review will, at a minimum, acknowledge that it has considered those issues enumerated by the accused and its disposition of them.

Grostefon, 12 M.J. at 436. In other words, no matter how seemingly-meritless the issue, if an appellant asks his detailed appellate defense counsel to raise an issue with the appellate court, then the appellate defense counsel must at least raise the issue. This matters because the pay issue in this case, that was spelled out in the PTA itself, and should have been blindingly obvious to everyone at the trial stage, and was a total loser of an issue on appeal, was only raised because Appellant insisted on it pursuant to Grostefon. . .

And then the NMCCA set aside the findings:

we find the appellant’s pleas improvident due to a mutual misunderstanding of a material term of the PTA. Since “alternative relief” has not been agreed to by the parties, we set aside the findings and the sentence and authorize a rehearing.

Slip op. at 5. And then, three months later, the NMCCA did it again:

The appellant assigns two errors: first, that he failed to receive the benefit of his bargained-for protection against automatic forfeitures because he was past his End of Active Obligated Service (EAOS) date . . . We find merit in the appellant’s first assignment of error and set aside the findings and the sentence

United States v. McCall, No. 201200461 (N-M.Ct.Crim.App. May 30, 2013) (unpublished) (opinion). Of course, just like in Juckniewitz, the PTA in McCall contained clear language that explained that Sergeant McCall would receive no pay or allowances when confined past his EAOS. And, just like in Juckniewitz, the appellant in McCall was past his EAOS when he pleaded guilty.

By the way, Sergeant McCall pleaded guilty to 15 (yes, 15) specifications of wrongful possession of a controlled substance (prescription painkillers) in violation of Article 112a, UCMJ, and was sentenced to confinement for 2 years, reduction to E-1, and a dishonorable discharge. Pursuant to the PTA, the convening authority agreed to suspend all confinement in excess of 180 days, to disapprove any adjudged forfeitures and fines, and to defer and then waive any automatic forfeitures so long as appellant allotted those funds to his spouse.

8 Responses to “Striking the impossible bargain: An interesting pair of NMCCA cases”

  1. stewie says:

    you can’t, or shouldn’t, give something for nothing, which is what the accused did here.  I get it, it’s in the deal, but he obviously didn’t understand or else why put it in there?  I’ll trade you my car for these magic beans, I understand magic isn’t intended to mean they will do anything but grow into a regular-sized bean, but let’s trade my car for the magic beans anyways.  Might be a little paternalism but odds are this term originated with defense counsel with advisement from defense counsel.  Why do it?

  2. cjb762 says:

    I’m not sure why appellate courts insist on muddying waters that were once perfectly clear.  Why do it?  Maybe he had time left on his contract at the time the PTA was signed and the command really did want to ensure his family got what they could while they could. 
    To argue he didn’t understand it is an insult to the individual and the system.  There are very few servicemembers that are literally so dumb that they can’t understand the sentence “I understand that if I am held in confinement beyond my End of Active Obligated Service (EAOS) date, then I will not receive any pay or allowances by operation of law, regardless of the terms of this agreement.”  Even if they are, they have both a defense counsel and a military judge to explain it to them.  If they state on the record that they understand the term, that should be the end of the discussion.

  3. rob klant says:

    Unfortunately, the message to CAs/SJAs is perfectly clear:  never think about approving such a term in a PTA, even if you might be inclined post-trial to do it as a matter of clemency.

  4. some TC says:

    I know of some TC shops that as a matter of policy will push back HARD against deferals for dependents being in the PTA, because they cause crazy appellate issues as seen here. The party line is, “This isn’t a sub rosa, but you should probably ask for that in clemency.”

  5. brian says:

    Paternalism run amuck, serving no purpose and self defeating.

  6. anon says:

    I believe there is some language in Perron (may be subsequent caselaw) that permits the appellant and appellee to attempt to cure the error through substantial compliance. Seems to be in the government’s interest to attempt to provide appellant with the pay that would have been availed if not for his EAOS (with the caveat that the appellant may argue that timeliness of the pay was a material element of the deal).  Cost and inconvenience of  retrial vs. getting DFAS authorization.

  7. stewie says:

    Seems to me the message is be more clear in your agreements.  This agreement could have specified the fact, if it existed, that the accused knew he wouldn’t get the full benefit but wanted whatever he could get.
    Or the TC could have told the MJ about the issue who could have then covered it during providency (or the MJ could have covered it sua sponte…or the TDS counsel who I assume wanted the deal could have made sure it was covered).
    Literally a myriad number of paths it seems to me, so this is “paternalism” that I don’t have a problem with.  The system is insulted when obvious solutions aren’t made and the appellate courts are left to wonder whether or not an accused knew or not.
    You certainly aren’t going to assume against the accused.

  8. cjb762 says:

    “The system is insulted when obvious solutions aren’t made and the appellate courts are left to wonder whether or not an accused knew or not.”
    This is the point.  There wasn’t an obvious problem to create a solution for.  Thousands of PTAs were crafted with identical language to the two in quesiton, and everyone was clear on the effect of the language.  Out of the blue someone decides “this is a problem and everyone is confused” when it isn’t really the case, and now we have error where there was none before, and confusion where there was clarity.
    For years everyone knew what was an LIO of what, and it was clear and simple.  Now you have to guess and hope you are right.  For years everyone knew that you didn’t have to list the terminal element of Art 134, because the manual said that you didn’t.  It was clear, and everyone understood.  Then the court fabricated a fiction that the accused wasn’t on notice of all the elements.  I despise the twisting of reality to arrive at an unnecessary conclusion.  If common sense has to be abandoned to reach a legal conclusion, then it is a false conclusion and extremely poor legal reasoning.