Appeal after Guilty Plea

Appeal after pleading guilty and with a PTA.

As a general rule, there is often little to be done with a guilty plea case to reduce a sentence or get the conviction reversed--something I usually tell potential appellate clients.

Several approaches involve, for example;

   1. Challenging the plea as "improvident" meaning that the facts are not legally sufficient or there was an affirmative defense not raised.

   2. Challenging the defense counsel's effectiveness in recommending a guilty plea.

   3. Challenge the severity of the sentence based on errors made by the military judge in admitting certain aggravation evidence, or problems with victim impact statements, or erroneous exclusion of helpful defense evidence.

   Should you wish to challenge a guilty plea itself, rather than the sentence and there is a pretrial agreement you have to make a very serious analysis of what might happen if you win a new trial.

   SSGT Stout got himself a new trial when the Army Court of Criminal Appeals decided that, "we agree with appellant that the military judge abused her discretion in accepting appellant’s pleas of guilty to abusive sexual contact with a child, indecent liberties with a child, and possession of child pornography." So, case reversed, new trial ordered. United States v. Stout, No. 20120592, 2014 CCA LEXIS 469 (A. Ct. Crim. App. Jul. 25, 2014) (unpub.).

   Let's see, as Paul Harvey would say, the rest of the story as reflected in United States v. Stout, No. 20120592, 2018 CCA LEXIS 174 (A. Ct. Crim. App. Apr. 9, 2018) (unpub.) pet. granted on other grounds, 78 M.J. 93 (C.A.A.F. 2018). You can tell there's going to be a problem when the Court's opinion begins with these words.

"As this case demonstrates, successfully challenging an appellant’s guilty plea on appeal can carry significant risk, especially when charges conditionally dismissed as part of a pretrial agreement (PTA) reemerge at a rehearing and serve to increase the appellant’s punitive exposure."

What came next?
  • At the original trial, appellant entered into a PTA with the convening authority (CA) that served to cap any confinement to ten years.
  • The CA agreed to dismiss nine specifications, including abusive sexual contact with a child, indecent conduct with a child, sodomy of a child, and assault with intent to commit rape.
  • The dismissal of specifications was without prejudice, to ripen into with prejudice upon appellate review.
  • The CA could cancel the agreement if the appellate court found appellant's guilty plea improvident. 
  • Appellant stated he understood and agreed with these terms on the record. 
  • Upon acceptance of the guilty plea, the military judge conditionally dismissed the remaining specifications in accordance with the terms of the PTA.
  • At retrial, the military judge found that the "four corners of the agreement" meant dismissal ripened upon completion of appellate review. 
  • The PTA expressly stated that the agreement could be cancelled if appellant's initial guilty plea was found improvident on appeal, a reading consistent with R.C.M. 705.
  • Appellant pleaded not guilty before a military judge at the retrial. 
  • Appellant was found guilty of three specifications of abusive sexual contact with a child, two specifications of committing an indecent act with a child, sodomy with a child, and assault with the intent to commit rape.
  • The sentence included a DD, eighteen years, and RIR to E-1. 
  • The CA credited 779 days towards confinement.
So, what was the full result, 
  • The terms of the PTA were unambiguous.
  • The PTA was cancelled when the court found appellant's guilty plea improvident. 
  • The charges and specifications were not dismissed under the PTA.
  •  The CA was authorized to re-refer all Specifications for the rehearing.
  • Findings and sentence of 18 years, compared to 10 in the PTA were affirmed.
It remains to be seen what CAAF will do with Stout's issue on appeal.

On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE GOVERNMENT MADE MAJOR CHANGES TO THE TIME FRAME OF THREE OFFENSES, OVER DEFENSE OBJECTION, AND FAILED TO PREFER THEM ANEW IN ACCORDANCE WITH RULE FOR COURTS-MARTIAL 603.