In an unpublished opinion in United States v. Starovoytov, No. 38609 (A.F. Ct. Crim. App. Oct. 8, 2015) (link to slip op.), authored by Chief Judge Allred, a three-judge panel of the Air Force CCA accepts a “pretrial agreement provided no cap on the punishment Appellant could receive at his court-martial.” Slip op. at 3.
The appellant pleaded guilty to 5 charges (containing 18 specifications) “involving sodomy with children between the ages of 12 and 16, aggravated sexual abuse of children, abusive sexual contact of a child, indecent liberties with children, possessing and producing child pornography, and providing alcohol to persons under the age of 21, in violation of Articles 120, 125, and 134.” Slip op. at 1. He was sentenced to confinement for 50 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the adjudged sentence.
On review, the appellant asserted that he received a de minimus benefit from the pretrial agreement, warranting reduction of his sentence by the CCA. The appellant also asserted that “the pretrial agreement violated notions of fundamental fairness or public policy.” Slip op. at 4. The CCA rejects both contentions, with Chief Judge Allred explaining that the negotiated dismissal of two additional specifications (including a specification alleging sodomy with a child under twelve, for which the maximum authorized punishment includes confinement for life) was a benefit. Further:
The military judge properly ensured that Appellant understood the pretrial agreement and had freely and voluntarily entered into it. Appellant had no right to a pretrial agreement at all, nor to a sentence cap or any other promise by the convening authority. The decision whether to join Appellant in a pretrial agreement, or whether to agree to limit his punitive exposure, was within the sole discretion of the convening authority. Knowing the terms of the pretrial agreement and that there was no cap on his sentence, Appellant voluntarily elected to plead guilty.
Slip op. at 4. The CCA also rejects the appellant’s claim that his trial defense counsel were ineffective.
A footnote explains that the maximum authorized punishment for the offenses to which the appellant pleaded guilty was: “a dishonorable discharge, confinement for 290 years and 90 days, forfeiture of all pay and allowances, and reduction to E-1.” Slip op. at 4 n.6.