United States v. Perron

                       UNITED STATES, Appellant

                                        v.

      Daniel R. PERRON, Boatswain’s Mate Second Class
                 U.S. Coast Guard, Appellee


                                 No. 02-0168


                           Crim. App. No. 1115



    United States Court of Appeals for the Armed Forces

                       Argued      October 16, 2002

                      Decided February 12, 2003

BAKER, J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and ERDMANN, JJ., joined. CRAWFORD, C.J.,
filed a dissenting opinion.

                                    Counsel

For Appellee: Lieutenant Daniel J. Goettle (argued); and
   Commander Peter J. Ganser.


For Appellant: Commander Jeffrey C. Good (argued).

Military Judge:       B. Schroder


     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Perron, No. 02-0168/CG


     Judge BAKER delivered the opinion of the Court:

     Appellant was tried by a special court-martial

composed of a military judge alone.   In accordance with his

pleas, Appellant was convicted of one specification of

wrongful possession of a controlled substance and two

specifications of wrongful use of a controlled substance,

in violation of Article 112a, Uniform Code of Military

Justice [hereinafter UCMJ], 10 U.S.C. § 912a (2002).    He

was sentenced to a bad-conduct discharge, confinement for

90 days, and a reduction to pay grade E-3.   Consistent with

a pretrial agreement, the convening authority approved the

adjudged sentence but suspended all confinement in excess

of 60 days for a period of six months.

     The Coast Guard Court of Criminal Appeals set aside

the convening authority’s action due to a mutual

misunderstanding regarding a material term in the pretrial

agreement.   United States v. Perron, 

53 M.J. 774, 777

 (C.G.

Ct. Crim. App. 2000) (Perron I).   On remand, the convening

authority approved only the bad-conduct discharge and the

reduction to E-3.

     On November 1, 2001, the Court of Criminal Appeals

again reviewed the convening authority’s action.   United

States v. Perron, 

57 M.J. 597

 (C.G. Ct. Crim. App. 2001)

(Perron II).   It affirmed the findings of guilty and the



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United States v. Perron, No. 02-0168/CG


bad-conduct discharge, but set aside the reduction to pay

grade E-3, restoring all rights, privileges, and property

related to portions of the sentence that had been set

aside.   

Id. at 599

.

      This Court granted review on the following issues:

I.    WHERE THERE HAS BEEN A FAILURE OF A MATERIAL TERM IN A
      PRETRIAL AGREEMENT, MAY AN APPELLATE COURT FASHION AN
      ALTERNATIVE REMEDY OF ITS OWN CHOOSING, CONTRARY TO
      APPELLANT’S WISHES, OR MUST IT AFFORD AN APPELLANT THE
      OPPORTUNITY TO WITHDRAW FROM THE AGREEMENT?

II.   WHETHER THE LOWER COURT ERRED BY FAILING TO FIND THAT
      APPELLANT’S PLEAS OF GUILTY PURSUANT TO A PRETRIAL
      AGREEMENT WERE VOLUNTARY BEYOND A REASONABLE DOUBT,
      WHERE THE COURT CONCLUDED THERE HAD BEEN A FAILURE OF
      A MATERIAL TERM OF THE AGREEMENT.

      We reverse the Court of Criminal Appeals’ decision.

Because we resolve this case on Issue I, we do not reach

the second granted issue.

                             Background

      On January 15, 1999, Appellant and the Government

entered into a pretrial agreement.        One provision of that

agreement required the convening authority to waive all

automatic forfeitures and pay those to Appellant’s family

during his confinement.1      After Appellant began serving his

confinement, trial defense counsel informed Appellant that


1
  Paragraph three of the Maximum Sentence Appendix to [the] Memorandum
of Pretrial Agreement provided: “Forfeiture or Fine: Any adjudged fine
or forfeiture will be disapproved. In accordance with Art. 58(b),
UCMJ, the Convening Authority agrees to waive any or all forfeitures
and pay the dependents of the accused.”



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United States v. Perron, No. 02-0168/CG


he had entered a no-pay status upon his confinement due to

the expiration of his enlistment term prior to trial.2             As a

result, his family did not receive the agreed-upon payments

during his confinement.

      On March 8, 1999, trial defense counsel sent a

clemency request to the convening authority, alerting him

to the problem.     In the request, Appellant’s counsel asked

the convening authority to correct the mistake:

           Please consider BM2 Perron’s family in this
      matter. The family cannot survive financially
      without the aid of BM2 Perron. Granting relief
      from the pay provisions or immediate release from
      jail in order to gain immediate employment are
      the only options that allow for the financial
      relief his family desperately needs.

      On March 11, 1999, the convening authority responded

to trial defense counsel’s plea for relief as follows:

      1.    I reviewed your clemency request of 8 Mar
            99. Upon review, and in accord with Article
            58b, UCMJ, I have acted upon your concerns.
            I immediately sent a letter requesting a
            waiver of all forfeitures (including
            automatic forfeitures) in the subject case
            to USCG Human Resource Service and
            Information Center (HRSIC) (a copy of which
            was provided to you, see Encl. (1)).

      2.    Enclosure (2) provides the response from
            HRSIC to the request. Unfortunately, due to
            SN Perron’s status (involuntary extension
            due to pending court-martial), he was in a
            no-pay status when sentencing occurred and
            the entire time he was in jail. Thus, there
            were no forfeitures available to forfeit.
2
  See Department of Defense,7A Financial Management Regulation Chapter
3, para. 030207C (1996).



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United States v. Perron, No. 02-0168/CG


           As such, it is impossible to achieve the
           desired result provided for in Article 58b.
           I have made every attempt available and
           acted as provided for in the Pre-Trial
           Agreement. I have waived all forfeitures.
           As a result of an administrative
           distinction, however, the desired result of
           having SN Perron’s family receive these
           waived automatic forfeitures is impossible.

      3.   Further, I have reviewed your clemency
           request as it relates to the immediate
           release of SN Perron. I deny your sought
           relief. I will, however, ensure this
           request is reviewed again by the SJA and
           myself once the record of trial is forwarded
           for our respective reviews and my final
           action.

      Because the convening authority’s action did not

correct the misunderstanding regarding the forfeiture

provision, Appellant sought relief from the Coast Guard

Court of Criminal Appeals.   The Court of Criminal Appeals

found that none of the trial participants, including the

military judge, realized that Appellant would enter a no-

pay status upon confinement because his enlistment expired

prior to trial.3   Perron I, 

53 M.J. at 777

.   It also

determined that the forfeiture provision of the pretrial

agreement was a material term of the agreement, a

conclusion the Government has not challenged in this Court.

Id.

   The lower court therefore remanded the case to the

convening authority to either set aside the findings of




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United States v. Perron, No. 02-0168/CG


guilty and the sentence or determine whether some other

form of alternative relief was appropriate.           

Id.

      On remand, the convening authority modified the

sentence, approving only the bad-conduct discharge and the

reduction to E-3.     Because the revised sentence did not

include confinement, the pay center determined that

Appellant was entitled to payment for the time he spent in

confinement, which by that time had been completed.            The

pay center therefore paid Appellant $3,184.90, the amount

his family would have received had the forfeiture provision

been effective.

      Unsatisfied with the convening authority’s action,

Appellant again appealed to the Court of Criminal Appeals

for relief.    In his appeal, Appellant continued to argue

that his plea was involuntary.         Perron II, 

57 M.J. at 598

.

The basis of his claim was that the convening authority’s

action in disapproving confinement and allowing for the

belated payment of the funds his family should have

received under the pretrial agreement was insufficient to

cure the failed material provision in the pretrial

agreement.    

Id.

   In other words, Appellant argued that he

would not have agreed to the pretrial agreement had he been


3
  Indeed, the military judge erroneously assured trial defense counsel
during the providence inquiry that the provision waiving automatic
forfeitures would “kick in, as well, for the period of confinement.”



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United States v. Perron, No. 02-0168/CG


offered the relief provided by the convening authority,

because payment of the forfeiture amount after confinement

did not compensate his family for the value the payments

would have had if they had been paid during his

incarceration.    He claimed that the only proper relief was

for the Court of Criminal Appeals to either allow him to

withdraw his plea or accept his proposed relief--

disapproval of his bad-conduct discharge.      

Id. at 599

.

     Despite Appellant’s continued insistence that the

belated payment was not appropriate alternative relief, the

lower court cited United States v. Mitchell, 

50 M.J. 79

(C.A.A.F. 1999), and held that it could provide alternative

relief to Appellant, even if doing so was contrary to his

wishes.   

Id.

   The court went on to hold that the belated

payment was “close enough to the action promised in the

pretrial agreement to constitute satisfaction of that

agreement, particularly if further reduction of the

sentence will allow for payment of additional money as a

substitute for interest.”    

Id.

   The Court of Criminal

Appeals therefore set aside the reduction from E-5 to E-3,

commenting, “This difference in pay should exceed any

reasonable interest calculation.”     

Id.

   Appellant then

petitioned this Court for relief.




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United States v. Perron, No. 02-0168/CG


     In his appeal before this Court, he continues to argue

that his pleas were involuntary.   Citing Santobello v. New

York, 

404 U.S. 257

 (1971), he asserts that where an accused

pleads guilty in reliance on Government promises made in a

pretrial agreement, the plea can only be found to be

voluntary if the Government fulfills those promises.   Where

the Government fails to fulfill those promises, Appellant

argues, the proper remedy is either specific performance,

withdrawal of the plea, or another remedy agreeable to the

accused.   Although recognizing that this Court has approved

of “appropriate alternative relief,” Appellant contends

that imposing such relief on him against his will violates

his Fifth Amendment right to due process.

                              I

     The issue in this case, therefore, is whether imposing

alternative relief on an appellant against his will, to

correct a failure of a material provision of a pretrial

agreement, due to a mutual misunderstanding, violates the

Due Process Clause of the Fifth Amendment.   Courts have

long recognized that the decision to plead guilty is a

serious and consequential decision.   The Supreme Court, for

instance, has said that “a plea of guilty is more than a

confession which admits that the accused did various acts;

it is itself a conviction; nothing remains but to give



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United States v. Perron, No. 02-0168/CG


judgment and determine punishment.”   Boykin v. Alabama, 

395 U.S. 238, 242

 (1969).   A guilty plea is also a sobering

decision because it involves the waiver of a number of

individual constitutional rights, including the privilege

against compulsory self-incrimination, the right to a trial

by jury, and the Sixth Amendment right to confront one’s

accusers.   McCarthy v. United States, 

394 U.S. 459, 466

(1969).   These concerns are no less important in our

military system of justice, where pleading guilty

constitutes a conviction and a waiver of the accused’s

trial rights.    See United States v. Forester, 

48 M.J. 1

, 2-

3 (C.A.A.F. 1998); United States v. Care, 

18 C.M.A. 535, 538-39

 (1969).

     Because of the consequences resulting from guilty

pleas, the Supreme Court has recognized the constitutional

necessity of ensuring that such pleas are entered into

voluntarily and knowingly, “with sufficient awareness of

the relevant circumstances and likely consequences.”     Brady

v. United States, 

397 U.S. 742, 748

 (1970).   Where a plea

is not knowing and voluntary, “it has been obtained in

violation of due process and is therefore void.”    McCarthy,

394 U.S. at 466

.

     To ensure that the requirements of due process are

complied with, the federal civilian system and the military



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United States v. Perron, No. 02-0168/CG


system have created a number of protective measures to

ensure that pleas are entered into voluntarily and

knowingly.    In the civilian system, Federal Rule of

Criminal Procedure 11 was created to help judges make “the

constitutionally required determination that a defendant’s

guilty plea is truly voluntary.”    McCarthy, 

394 U.S. at 465

.

       The military justice system imposes even stricter

standards on military judges with regards to guilty pleas

than those imposed on federal civilian judges.    See United

States v. Outhier, 

45 M.J. 326, 331

 (C.A.A.F. 1996) (noting

that Article 45(a), UCMJ, 

10 U.S.C. § 845

(a) (2002),

requires military judges, unlike civilian judges, to

resolve inconsistencies and defenses during the providence

inquiry or “the guilty plea[] must be rejected”).    In

United States v. Care, this Court imposed an affirmative

duty on military judges, during providence inquiries, to

conduct a detailed inquiry into the offenses charged, the

accused’s understanding of the elements of each offense,

the accused’s conduct, and the accused’s willingness to

plead guilty.    

18 C.M.A. at 541-42

.   Care’s general mandate

to insure that pleas are voluntary is now contained in Rule

for Courts-Martial 910(d) [hereinafter R.C.M.] which

provides:



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United States v. Perron, No. 02-0168/CG


      The military judge shall not accept a plea of
      guilty without first, by addressing the accused
      personally, determining that the plea is
      voluntary and not the result of force or threats
      or of promises apart from a plea agreement under
      R.C.M. 705. The military judge shall also
      inquire whether the accused’s willingness to
      plead guilty results from prior discussions
      between the convening authority, a representative
      of the convening authority, or trial counsel, and
      the accused or defense counsel.

See Forester, 

48 M.J. at 3

 (citing R.C.M. 910(d) for

the proposition that guilty pleas must be knowing and

voluntary).

      While these protections address problems that could

arise during a providence inquiry, and indicate a

recognition of the overall importance of voluntary pleas,

they do not directly deal with circumstances affecting

pleas after the plea has been accepted;4 however, other

protections do.

      It is fundamental to a knowing and intelligent plea

that where an accused pleads guilty in reliance on promises

made by the Government in a pretrial agreement, the


4
  The notion that later circumstances may affect the voluntariness of a
plea once accepted is neither novel nor unique to military law. See,
e.g., United States v. Smith, 

56 M.J. 271, 279

 (C.A.A.F. 2002)
(holding, under United States v. Hardcastle, 

53 M.J. 229

 (C.A.A.F.
2000) and United States v. Williams, 

53 M.J. 293

 (C.A.A.F. 2000), that
the Government’s failure to fulfill a material term of an accepted
pretrial agreement made the appellant’s pleas improvident, warranting
relief); Hardcastle, 53 M.J. at 302; Williams, 

53 M.J. at 295

 (both
holding that the Government’s failure to fulfill a material promise
made in an accepted pretrial agreement rendered the accused’s pleas
improvident)(citing Santabello v. New York, 

404 U.S. 257

 (1971); United
States v. Bedania, 

12 M.J. 373

 (C.M.A. 1982)).



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United States v. Perron, No. 02-0168/CG


voluntariness of that plea depends on the fulfillment of

those promises by the Government.         See Santobello, 

404 U.S. at 262

   (“[W]hen a plea rests in any significant degree on

a promise or agreement of the prosecutor, so that it can be

said to be part of the inducement or consideration, such a

promise must be fulfilled.”); Correale v. United States,

479 F.2d 944, 947

 (1st Cir. 1973) (“Though a legitimate

prosecution promise does not render a guilty plea legally

involuntary, its fulfillment is a necessary predicate to a

conclusion of voluntariness when a plea ‘rests in any

significant degree’ on it.”) (quoting Santobello, 

404 U.S. at 262

) (internal citations omitted).

      Based on this principle, our Court has held in a line

of recent cases that where there is a mutual

misunderstanding regarding a material term of a pretrial

agreement, resulting in an accused not receiving the

benefit of his bargain, the accused’s pleas are

improvident.    See United States v. Hardcastle, 

53 M.J. 299, 302

 (C.A.A.F. 2000); United States v. Williams, 

53 M.J. 293, 296

 (C.A.A.F. 2000).5       In such instances, we have held



5
  While Hardcastle and Williams were adjudicated on the basis of
concessions, we accepted those concessions because they accurately
reflected the impact of a mutual misunderstanding of a material term on
the providency of a pretrial agreement. The principles relied upon in
Hardcastle and Williams are equally applicable to the circumstances of
this case.



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United States v. Perron, No. 02-0168/CG


that remedial action, in the form of specific performance,

withdrawal of the plea, or alternative relief, is required.

See United States v. Smith, 

56 M.J. 271, 279

 (2002);

Mitchell, 

50 M.J. at 82

.

     In this case, the Court of Criminal Appeals determined

that the forfeiture provision was a material term of the

pretrial agreement, relied upon by Appellant.   Under our

decisions in Hardcastle and Williams, when it became

apparent that the material provision in the pretrial

agreement was ineffective, Appellant’s pleas became

involuntary and improvident, warranting relief.   The

critical question in this case is whether a court of

criminal appeals or a convening authority can determine

that alternative relief renders a plea voluntary when an

appellant argues that such relief does not give him the

benefit of his bargain.

     The Government asserts that appellate courts not only

have the power to fashion remedies other than specific

performance or withdrawal, it maintains that such relief

can be imposed upon an unwilling appellant so long as that

relief provides the appellant with the benefit of his

bargain.   It cites as authority for this position, this

Court’s decisions in Mitchell, 

50 M.J. at 83

, and Smith, 

56 M.J. at 273

.



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United States v. Perron, No. 02-0168/CG


     In Mitchell, we were asked to address whether a

misunderstanding regarding a material term in a pretrial

agreement rendered an appellant’s guilty pleas improvident.

50 M.J. at 80

.   While that question was on appeal before

this Court, the Secretary of the Air Force approved

appellant Mitchell’s request for retirement.      

Id. at 81

.

The Government argued that the Secretary’s action fairly

compensated Mitchell for any claim resulting from the

misunderstanding regarding the term in the pretrial

agreement.   

Id. at 82

.   Mitchell disagreed.    He asserted

that he would have received the benefits regardless of his

conviction and that they were unconnected to the failed

term in his pretrial agreement.     

Id.

     Because we saw the Secretary’s action as having the

potential to moot the granted issue in Mitchell, we

remanded the case to the Air Force Court of Criminal

Appeals to determine “whether, as a matter of law or

regular practice, a similarly situated airman would have

been placed on retired-pay status, as a matter of course,

without regard to any litigation concerning that airman’s

pretrial agreement.”   

Id.

   If so, we held that the “retired

pay [could not] be viewed as a means of enforcing the

pretrial agreement against [Mitchell].”    

Id.

    On the other

hand, if not, then we held open the possibility that the



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United States v. Perron, No. 02-0168/CG


retirement pay “could be viewed as an adequate means of

providing appellant with the benefit of his bargain.”         

Id. at 82-83

.   We went on to state that if the retirement pay

was not adequate relief, the Court of Criminal Appeals was

in a position to determine whether additional relief was

necessary to give Mitchell the benefit of his bargain.         

Id. at 83

.

     In Smith, we again had occasion to decide whether an

accused had been deprived of the benefit of his bargain

because of a misunderstanding regarding the effect of a

term in his pretrial agreement.      

56 M.J. at 273

.    Similar

to Appellant in this case, Smith pleaded guilty in exchange

for a Government’s agreement to waive automatic forfeitures

in favor of his family.   

Id.

   Because Smith’s enlistment

expired prior to his trial, the waiver provision became

ineffective.   

Id. at 276

.   Smith then argued that the term

was material and that failure of the term rendered his

pleas improvident.   

Id. at 277

.

     We agreed with Smith that the forfeiture provision was

a material term and held that because the Government had

not fulfilled its part of the agreement, Smith had not

received the benefit of his bargain.      

Id. at 279

.    We

therefore remanded the case to the Navy-Marine Corps Court

of Criminal Appeals to determine the appropriate relief.



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United States v. Perron, No. 02-0168/CG

Id.

   In so doing, we stated that where “the bargained-for

benefit is outside the authority of the Government to

provide,” the Courts of Criminal Appeals are well situated

to “determine whether some ‘appropriate alternative relief’

is available ‘as an adequate means of providing appellant

with the benefit of his bargain.’”    

Id.

 at 279-80 (quoting

Mitchell, 

50 M.J. at 83

).

      Neither Smith nor Mitchell however addressed the

proposition that appellate courts can impose alternative

relief on an unwilling appellant to rectify a mutual

misunderstanding of a material term in a pretrial

agreement.   Those cases simply establish that there are

circumstances when alternative relief may be appropriate.

We now conclude that an appellate court cannot impose such

relief in the absence of the appellant’s consent.

                              II

      The touchstone case on the appropriate remedies for a

failed material term in a plea agreement is Santobello v.

New York, 

404 U.S. 257

 (1971).     In Santobello, the Supreme

Court suggested that where a material term of a pretrial

agreement fails, the proper remedy is either specific

performance or withdrawal of the plea.    Specifically the

Court stated:




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United States v. Perron, No. 02-0168/CG


     The ultimate relief to which petitioner is
     entitled we leave to the discretion of the state
     court, which is in a better position to decide
     whether the circumstances of this case require
     only that there be specific performance of the
     agreement on the plea, in which case petitioner
     should be resentenced by a different judge, or
     whether, in the view of the state court, the
     circumstances require granting the relief sought
     by the petitioner, i.e., the opportunity to
     withdraw his plea of guilty.

Id. at 263

.

     Appellant argues that this language in Santobello

limits the relief available to a court to remedy a mutual

misunderstanding in a plea agreement to specific

performance or withdrawal.   However, the Court in

Santobello did not expressly preclude the possibility that

other remedies might be appropriate in a particular case.

Nor did the Court address the military system of hybrid

sentencing, which incorporates penalties such as forfeiture

and discharge, as well as confinement.    See Lane v.

Williams, 

455 U.S. 624, 631

 (1982) (refusing to address

whether remedies other than specific performance or

withdrawal would be authorized and appropriate in some

cases).

     Several of the federal circuit courts have interpreted

Santobello as permitting imposition of a third type of

remedy where specific performance or withdrawal would be

meaningless or infeasible.   See, e.g., Correale, 

479 F.2d 17

United States v. Perron, No. 02-0168/CG


at 950 (applying a remedy other than specific performance

or withdrawal where such remedies would have been

“hollow”); United States v. Jureidini, 

846 F.2d 964, 965-66

(4th Cir. 1988) (citing Correale for the idea that courts

have the power to order equitable relief, where

appropriate, to insure that a plea bargain is not

frustrated); United States v. O’Brien, 

853 F.2d 522, 526

(7th Cir. 1988) (authorizing imposition of a specific

sentence where neither specific performance nor withdrawal

“would provide an appropriate remedy”).

     However, the only circuit that has actually applied

this third type of remedy has said that, under Santobello,

“a plea agreement is ordinarily remedied either by specific

performance of the agreement or by allowing the defendant

to vacate his guilty plea;” and alternative remedies are

reserved for “extreme situations” where other remedies

“would be completely meaningless” or infeasible.    Kingsley

v. United States, 

968 F.2d 109, 113-14

 (1st Cir. 1992).

See United States v. Garcia, 

698 F.2d 31, 37

 (1st Cir.

1983) (ordering the imposition of a specific sentence only

because withdrawal of the plea and specific performance




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United States v. Perron, No. 02-0168/CG


served no useful purpose).6       The Government, in its

argument, places no such limitations on applying

alternative relief in the military system.

      The Government goes a step further than the federal

circuits that have liberally construed Santobello.            It

maintains that “[a] court of criminal appeals can remedy a

failure of a material term by ordering relief that the

appellant does not desire, so long as that remedy gives the

appellant the benefit of the bargain,” even where

withdrawal or specific performance are not meaningless or

infeasible.    There are obvious benefits to this position.

For example, because the military sentencing system has a

number of sentencing options, a military court or convening

authority is more likely to be able to find a desirable

remedy as a substitute for an ineffective term in a


6
  We do not need to address whether we adopt the view taken by these
circuits. It suffices to say that this case is not one in which
withdrawal would serve no useful purpose. Certainly, for the
Appellant, withdrawal may result in a more favorable outcome with
respect to some aspects of his sentence if, for example, the Government
elected not to retry him, if he reached another agreement with the
Government, or if he was ultimately acquitted. However, it is worth
noting that, unlike the civilian system, where the only sentencing
option is confinement, in the military system of sentencing, specific
performance and withdrawal will almost never be meaningless or
infeasible because convicted service members generally receive varied
sentencing punishments. For example, withdrawal in the military system
may not be meaningful relief as to confinement, due for example to an
accused’s already having served a confinement term. However,
withdrawal of a plea could allow an accused to challenge any other
punishments that have a continued impact on his or her livelihood, such
as forfeitures, a rank reduction, or a punitive separation. Thus, it
will be the unusual case where an accused will not have some meaningful
reason to seek withdrawal of his or her plea.



                                  19
United States v. Perron, No. 02-0168/CG


pretrial agreement than a civilian court.      Furthermore,

concerns over judicial economy and finality favor applying

remedies other than withdrawal.      This is particularly true

in a military system of worldwide deployment where there

are no permanent tribunals to supervise the implementation

of pretrial agreements.     Applying alternative relief could

therefore avoid the difficulty of reconvening a court-

martial for retrial.     For these reasons, we recognized in

Mitchell and Smith that alternative relief may be

appropriate in certain circumstances.

     However, weighted against the benefits of imposing

alternative remedies on an unwilling appellant are concerns

about the voluntariness of pleas and the constitutional

rights afforded an accused.     Imposing remedies on an

unwilling appellant after the conclusion of a providence

inquiry intrudes upon an accused’s decision to plead

guilty.   When an accused pleads guilty, he waives a number

of constitutional rights.     These rights are individual

rights and can, in most circumstances, only be exercised or

waived by the accused.     See McCarthy, 

394 U.S. at 466

.      An

accused can use them wisely or unwisely, but they are the

accused’s to exercise or waive.      When an appellate court

substitutes its own remedies in place of negotiated plea

terms, it steps into the accused’s shoes and is in effect



                                20
United States v. Perron, No. 02-0168/CG


renegotiating the accused’s plea agreement and waiving his

rights.    This, an appellate court cannot do without the

accused’s consent.

     Compelling an accused to accept unwanted remedies as

relief for a failed plea agreement may also result in

erroneous conclusions of voluntariness.    Determining

whether a plea is voluntary is by no means an exact

science.    But an accurate determination is more likely to

result where the accused himself assures the court that his

plea is voluntary.    Where the accused does not agree that a

particular form of relief rectifies a failed material term

and provides him with the benefit of the bargain--and

therefore calls into question the voluntariness of the

guilty plea--we are skeptical that an appellate court

could, nevertheless, determine with a necessary degree of

certainty that the accused would have pleaded guilty had he

been offered the relief he is ultimately being compelled to

accept.    Where the failed term in the agreement involves

pure economic concerns, finding relief of equal value is

possible.    But where the promised benefit relates to non-

economic concerns--e.g. the immediate care of a family--or

where the promise has indeterminable value, determining the

“benefit” of the bargain becomes a guessing game, and may

result in undervaluing the promised benefit to the accused.



                               21
United States v. Perron, No. 02-0168/CG


       The present case provides an example of this

situation.    Appellant pleaded guilty in exchange for the

Government agreeing to provide his family with income while

he was incarcerated.    That agreement was not fulfilled in

this case.    Now the government maintains that paying

Appellant $3,184.90 plus interest will fully compensate

him.    However, that assertion ignores the timing of the

payment, which Appellant argues was as material as the

amount of money promised in the agreement.     Significantly,

the Court of Criminal Appeals found that the third

paragraph of the agreement in this case appeared to address

this objective.    Perron I, 53 M.J. at 774.   At this stage,

Appellant continues to maintain that payment in full does

not compensate his family for the present value of

receiving the money during his incarceration.

       Authorizing courts to impose alternative relief may

also effectively do away with withdrawal as a form of

relief.    Courts, as well as convening authorities, have an

obvious interest in judicial efficiency and finality.

Where a conviction is based on a guilty plea, courts are

often loath to set aside that plea because retrial is

inefficient and burdensome.    Where courts are able to

simply craft some form of “suitable” relief to avoid

retrial, they might be inclined to impose such relief even



                               22
United States v. Perron, No. 02-0168/CG


where withdrawal is the more appropriate remedy.            But the

issue in this case is not only about relief.           This case

underscores the point that the remedy must go beyond simply

making one whole; rather, remedies for the failure of a

material term in a pretrial agreement must ultimately

support a conclusion that the plea was voluntary.            Imposing

alternative relief on an unwilling appellant does not do

this.

      We therefore hold that imposing alternative relief on

an unwilling appellant to rectify a mutual misunderstanding

of a material term in a pretrial agreement violates the

appellant’s Fifth Amendment right to due process.7            An

appellate court may determine that alternatives to specific

performance or withdrawal of a plea could provide an

appellant with the benefit of his or her bargain--and may

remand the case to the convening authority to determine




7
  This, of course, does not preclude a convening authority and an
accused from availing themselves post-trial of the opportunity to
renegotiate a new plea agreement to avoid a contest to the providence
of the plea. As we said in Smith,
      where there has been a mutual misunderstanding as to a material
      term, the convening authority and an accused may enter into a
      written post-trial agreement under which the accused, with the
      assistance of counsel, makes a knowing, voluntary, and
      intelligent waiver of his right to contest the providence of his
      pleas in exchange for an alternative form of relief.

56 M.J. at 279

.



                                  23
United States v. Perron, No. 02-0168/CG


whether doing so is advisable8--but it cannot impose such a

remedy on an appellant in the absence of the appellant’s

acceptance of that remedy.

      That being said, a pretrial agreement is an agreement

between the convening authority and the accused.            An

appellant cannot dictate the terms of a pretrial agreement

to the convening authority.       This is true on review as well

as at the outset.     In other words, if the parties cannot

agree on alternative relief, and specific performance is

not available, the result is to nullify the original

pretrial agreement, returning the parties to the status quo

ante.    Behind all the back and forth of alternative relief,

this case is like any other where the plea is challenged as

improvident.

                                  III

        The Court of Criminal Appeals therefore erred when it

concluded that payment-in-full rendered Appellant’s plea

voluntary.     Appellant should have been permitted to

withdraw his plea.




8
  This does not mean that a convening authority can impose alternative
relief on an appellant. The same principles precluding the courts of
criminal appeals from imposing alternative relief on an appellant
prevent a convening authority from taking such action.



                                  24
United States v. Perron, No. 02-0168/CG


     The decision of the United States Coast Guard Court of

Appeals is reversed.   The findings and sentence are set

aside.   The record of trial is returned to the General

Counsel of the Department of Transportation for action

consistent with this opinion.    A rehearing may be ordered.




                                25
United States v. Perron, No. 02-0168/CG


     CRAWFORD, Chief Judge (dissenting):

     The majority allows Appellant to withdraw from his pretrial

agreement even though he received everything he bargained for.

In doing so, the majority focuses on what Appellant says were

his personal reasons for entering into the agreement.    The

majority does not, as it should, limit itself to identifying and

enforcing the terms of the agreement Appellant and the convening

authority actually reached.   The end result contravenes strong

public policy and well established federal case law.    For these

reasons, I respectfully dissent.

     In Santobello v. New York, 

404 U.S. 257

 (1971), the Supreme

Court recognized that plea agreements are “essential” to

criminal justice, are “highly desirable,” and must be

“encouraged.”   

Id. at 260-61

.   This is because such agreements

     lead[] to prompt and largely final disposition of
     most criminal cases; . . . avoid[] much of the
     corrosive impact of enforced idleness during pretrial
     confinement for those who are denied release pending
     trial; . . . protect[] the public from those accused
     persons who are prone to continue criminal conduct
     even while on pretrial release; and, by shortening
     the time between charge and disposition, . . .
     enhance[] whatever may be the rehabilitative
     prospects of the guilty when they are ultimately
     imprisoned.

Id. at 261

.   As we also have stated:

          There are numerous benefits to pleading guilty
     [in accordance with a plea agreement]. A plea of
     guilty ensures the prompt application of correctional
     measures; avoids delays; amounts to an acknowledgement
     of guilt and acceptance of responsibility; and avoids
United States v. Perron, No. 02-0168/CG


     the risks of a contested trial. Guilty pleas also
     help preserve limited resources and relieve the
     victim[s] of the trauma of testifying.

United States v. Forester, 

48 M.J. 1, 3

 (C.A.A.F. 1998)(footnote

omitted).

     Thus, the benefits of plea agreements inure not only to

defendants, but also to society, and the interests of both must

be taken into account when deciding how best to remedy the

Government’s breach of a plea agreement.         As a result, even

though a defendant waives fundamental constitutional rights when

he or she pleads guilty,1 the Supreme Court has made clear that

the Government’s breach of a plea agreement does not entitle a

defendant to withdraw from the agreement if the breach can be

remedied by specific performance.

     In Santobello, as part of a plea bargain, the prosecutor

agreed to make no sentence recommendation.          That promise was

breached, however, when another prosecutor in the case, unaware

of his predecessor’s promise, recommended the maximum sentence.

Defense counsel immediately objected, but to no avail, and the

trial judge imposed the maximum sentence.         On these facts, the

Supreme Court held Santobello was entitled to relief, but left

to the discretion of the state court



1
  By pleading guilty, a defendant waives the privilege against compulsory
self-incrimination, the right to trial by jury, and the right to confront
one’s accusers. See Boykin v. Alabama, 

395 U.S. 238, 243

 (1969); McCarthy v.
United States, 

394 U.S. 459, 466

 (1969).



                                     2
United States v. Perron, No. 02-0168/CG


     whether the circumstances of this case require only
     that there be specific performance of the agreement
     on the plea, . . . or whether, in the view of the
     state court, the circumstances require granting the
     relief sought by [Santobello], i.e., the opportunity
     to withdraw his plea of guilty.

404 U.S. at 263

 (footnote omitted).

     The import of this language is clear.   Even if a defendant

requests to withdraw from a plea agreement that has been

breached, specific performance of the agreement, when possible,

should be the remedy.   See United States v. Gilchrist, 

130 F.3d 1131, 1134

 (3d Cir. 1997)(“[T]he district court, not the

defendant, is to decide in the first instance whether to grant

specific performance of the plea agreement or withdrawal of the

guilty plea.”); Peavy v. United States, 

31 F.3d 1341, 1346

 (6th

Cir. 1994)(“The choice between these remedies is not up to the

defendant but, rather, rests in the sound discretion of the

district court.”); Kingsley v. United States, 

968 F.2d 109, 113

(1st Cir. 1992)(“The choice between these two remedies is not up

to the defendant; rather, it rests with the court. . . .

Specific performance, the less extreme remedy, is preferred.”)

(emphasis added); United States v. Tobon-Hernandez, 

845 F.2d 277, 280-81

 (11th Cir. 1988)(“Santobello did not hold that a

defendant’s choice of remedy for a breach of a plea agreement

was binding on the court.   Rather, the remedy for a breach of a

plea agreement is within the sound discretion of the court.”).




                                 3
United States v. Perron, No. 02-0168/CG


     Therefore, the question becomes: Is specific performance of

the breached promise in Appellant’s case possible?     And the

answer to that is yes.

     At the outset, it is important to note what the breached

promise was -- and what it was not.    It was not the type of

breached promise found in almost every post-Santobello federal

case dealing with this subject, i.e. – a promise by a prosecutor

to make or refrain from making a sentence recommendation to the

trial judge, to dismiss certain charges, to reduce certain

charges, or not to prosecute certain offenses.     See Jay M.

Zitter, Choice of Remedies Where Federal Prosecutor has Breached

Plea Bargain – Post- Santobello v. New York, 

120 A.L.R. Fed. 501

(1994 & 2002 Supp.).   Instead, it was a promise unique to the

military justice system, i.e. - a promise to pay a sum of money.

     In the military, a court-martial sentence that includes

more than six months’ confinement or a punitive discharge

results in the automatic forfeiture of pay and allowances due a

servicemember during confinement.    See   Art. 58b(a)(2002),

Uniform Code of Military Justice, 10 U.S.C. § 858b(a).     However,

the convening authority (the person who enters into a plea

agreement with an accused)2 may waive these forfeitures for six

months and pay them to the dependents of an accused.     See Art.

58b(b).   Significantly, there is no requirement that the money




                                 4
United States v. Perron, No. 02-0168/CG


be used for any particular purpose.           Nor is there any accounting

or monitoring system in place to determine how the money is

used.     Consequently, while the money certainly can be used for

support and necessities, it also can be used for many other

things.

        Given these possibilities, and absent any evidence in the

record compelling a different result, this Court should not read

into the agreement between Appellant and the convening authority

anything more than what its express, unambiguous terms provide

for -– the payment of a sum of money.          Plea agreements are

contracts, and the terms of those contracts are ascertained

using general principles of contract law.          United States v.

Acevedo, 

50 M.J. 169, 172

 (C.A.A.F. 1999).          Two of those

principles are as follows:

        When the terms of a contract are unambiguous, the
        intent of the parties is discerned from the four
        corners of the contract. See United States v.
        Liranzo, 

944 F.2d 73, 77

 (2d Cir. 1991). When the
        contract is ambiguous on its face because a provision
        is open to more than one interpretation, extrinsic
        evidence is admissible to determine the meaning of the
        ambiguous term. See United States v. Ingram, 979 F.2d
        l179, 1184 (7th Cir. 1992), cert. denied, 

507 U.S. 997

        . . . (1993).

Id.; see also United States v. Nunez, 

223 F.3d 956, 958

 (9th

Cir. 2000).




2
    See Rule for Courts-Martial 705(a).



                                          5
United States v. Perron, No. 02-0168/CG


      In Appellant’s case, the terms of the agreement (“waive any

or all forfeitures and pay the dependents of the accused”) are

unambiguous.    Moreover, nothing else in the agreement, or the

discussion of the agreement on the record, suggests any

particular reason why the parties agreed on the payments, or any

agreement between them as to what the money could, or could not,

be used for.    Cf. Kingsley, 

968 F.2d at 111-12, 114-15

(discussion on the record between trial judge, prosecutor, and

defense counsel supplied additional meaning to written terms of

pretrial agreement).      As a result, nothing supports a limiting

interpretation of this agreement that one of the mutually agreed

upon terms was “time was of the essence” in the payment of the

money.3

      This case is not about what Congress intended when it

enacted Article 58b(b); and it is not about what personal

reasons may have motivated Appellant to enter into his pretrial

agreement.    This case is about what both appellant and the

convening authority mutually intended and actually agreed to,

and about enforcing that agreement as a matter of good social

policy.   That said, there is nothing in the unambiguous terms of

the written agreement, or anywhere else, that suggests the

convening authority was made aware of, understood, and agreed


3
  See generally John D. Calamari & Joseph M. Perillo, The Law of Contracts
414-16 (4th ed. 1998)(only when time is of the essence does delay constitute
a material breach).



                                      6
United States v. Perron, No. 02-0168/CG


that Appellant had a particular, immediate use to which he

wanted to put the money, and that the agreement would fail if

the money was not immediately paid.         See United States v. Burns,

160 F.3d 82, 83

 (1st Cir. 1998)(“[S]ignificant plea-agreement

terms should be stated explicitly and unambiguously so as to

preclude their subsequent circumvention by either party.”).4

      Thus, the mutually agreed upon promise in this case was

nothing more than payment of a sum of money, and specific

performance of that unique promise was properly accomplished

through alternative means when (1) the convening authority

disapproved the sentence to confinement, resulting in a payment

to Appellant of $3,184.90, and (2) the Court of Criminal Appeals

set aside the sentence of reduction to E-3, which, if affirmed

by this Court, “will allow for payment of additional money as a

substitute for interest.”       

57 M.J. at 599

 (relying on United

States v. Mitchell, 

50 M.J. 79, 82-83

 (C.A.A.F. 1999), and

United States v. Olson, 

25 M.J. 293, 298-99

 (C.M.A. 1987)).

      The lower court’s reliance on Mitchell was well placed.

Mitchell, and this Court’s most recent decision in

United States v. Smith, 

56 M.J. 271

 (C.A.A.F. 2002), are

controlling.5    In each, as in this case, the convening authority


4
  I note that the pretrial agreement did state it would terminate in a variety
of other situations, demonstrating that when Appellant and the convening
authority agreed to such a condition, they included it in their agreement.
5
  This Court’s decisions in United States v. Williams, 

53 M.J. 293

 (C.A.A.F.
2000), and United States v. Hardcastle, 

53 M.J. 299

 (C.A.A.F. 2000), are not



                                      7
United States v. Perron, No. 02-0168/CG


and the appellant entered into a pretrial agreement where the

convening authority agreed to waive automatic forfeitures and

pay the money to the appellant’s dependents.          In each, as in

this case, the convening authority could not fulfill that

promise because the appellant was not entitled to pay during the

period of his confinement.       And in each, this Court allowed the

lower court to “determine whether some ‘appropriate alternative

relief’ [was] available ‘as an adequate means of providing [the]

appellant with the benefit of his bargain.’”          

Id.

 at 279

(quoting Mitchell, 

50 M.J. at 83

).        Failing that, of course, the

appellant could withdraw his pleas of guilty.

     There is no reason why the result in Appellant’s case

should be any different.      The one fact distinguishing this case

from Mitchell and Smith is that Appellant states the only remedy

that will satisfy him is withdrawal of his pleas, whereas the

appellants in Mitchell and Smith were silent in that regard.

But that is a distinction without a difference, because the law

is abundantly clear -– the choice of remedy rests with the

courts, and the fact an otherwise appropriate remedy is not an

appellant’s remedy of choice does not compel a different result,

because it does not offend due process in light of society’s

compelling interest in supporting and enforcing plea agreements.


controlling. In each, the convening authority, through government appellate
counsel, agreed to the appellant’s withdrawal of his pleas as a remedy for
the convening authority’s breach. No such concession exists here.



                                     8
United States v. Perron, No. 02-0168/CG


See Santobello, Gilchrist, Peavy, Kingsley, and Tobon-Hernandez,

all supra.

     This case should be affirmed.




                                9