Petition for Writ of Certiorari — Albert v. United States

9 0 , 8 23 Supine vsurt, U.S.

e i! i L in D

No. NOY 26 1990

Jn the Supreme Court of the Gni

OCTOBER TERM, 1990

LAWRENCE ALBERT

STAFF SERGEANT

UNITED STATES MARINE CORPS, PETITIONER

v;

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

JOSEPH B. GILBERT

Major, U.S. Marine Corps

Counsel of Record

RANDALL L. CHAMBERS

Lieutenant, JAGC,

U.S. Naval Reserve

NAVY-MARINE CORPS APPELLATE

REVIEW ACTIVITY

Washington Navy Yard,

Building 111

Washington, D.C. 20374

(202) 433-4161

QUESTION PRESENTED

Was Petitioner deprived of his Sixth Amendment right

to effective assistance of counsel when his military defense

counsel provided him with gross misinformation, and ad-

vised him to plead guilty, after failing tc investigate easily

accessible information?

(I)

TABLE OF CONTENTS

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RTT TORT ECE EEE RT ETE 2

CONSTITUTIONAL PROVISION INVOLVED ..... 2

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REASON FOR GRANTING WRIT ................ 5

THE COURT SHOULD GRANT THIS WRIT

BECAUSE THIS MILITARY ACCUSED WAS

DENIED HIS SIXTH AMENDMENT RIGHT

TO EFFECTIVE REPRESENTATION OF

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OEE rere rer eee eee eee 10

APPENDIX A (Opinion of the U.S. Court of Military

OS EE ee er ia

APPENDIX B (Opinion of the U.S. Navy-Marine

Corps Court of Military Review) .................. Sa

TABLE OF AUTHORITIES

Cases:

Cook v. Lynaugh, 821 F.2d 1072 (Sth Cir. 1987) ..

Downs-Morgan vy. U.S., 765 F.2d 1534 (11th Cir.

Se

Hill vy. Lockhart, 474 U.S. 52 (1985) ... 2.2.2.2...

Santobello v. New York, 404 U.S. 257 (1971) .....

Strader v. Garrison, 611 F.2d 61 (4th Cir. 1979) ... 5

Strickland v. Washington, 466 U.S. 668 (1984) ....

U.S. Ex Rel. Hill v. Ternullo, 510 F.2d 844

Te Oe rt ee eee ENC KA RSA 7

~—

aOwounn si

IV

Cases — Continued: Page

U.S. v. Nagaro-Garbin, 653 F. Supp. 586 (E.D.

er er reo were eee 7

U.S. v. Warner, 25 M.J. 64 (C.M.A. 1987) ....... 8

Constitution:

Se Es SE EE chavcccevdcesssaranaees 2

Statutes:

MEME sé. 6 n 64 4.000465 WS KUEN See ah ec bawes es

sono Sk eaG bene hovabeseiawoues ee

I OPE ee Pret Pree er ery Tree a, 3

Regulations:

Department of Defense Pay and Entitlement

ES «£086.65 cee ccesueceeuaunes 3,4

In the Supreme Court of the Anited Siates

OCTOBER TERM, 1990

No.

LAWRENCE ALBERT

STAFF SERGEANT

UNITED STATES MARINE CORPS, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Lawrence Albert, respectfully prays that

writ of certiorari issue to review the judgment and opinion

of the United States Court of Military Appeals, rendered

in this proceeding on August 27, 1990.

OPINIONS BELOW

The opinion of the United States Court of Military Ap-

peals, United States v. Albert, 30 M.J. 331 (C.M.A. 1990),

is reprinted as Appendix A.

The opinion of the United States Navy-Marine Corps

Court of Military Review, United States v. Albert, No.

88-4935, slip. op. (N.M.C.M.R. Aug. 21, 1989), is re-

printed as Appendix B.

(1)

2

JURISDICTION

The United States Court of Military Appeals affirmed

the decision of the United States Navy-Marine Corps

Court of Military Review on August 27, 1990. This Court

has jurisdiction pursuant to 28 U.S.C. § 1259(3).

CONSTITUTIONAL PROVISION INVOLVED

Amendment VI

In all criminal prosecutions, the accused shall enjoy

the right to. . . have the assistance of counsel for his

defence.

STATUTES INVOLVED

10 U.S.C.:§ 867, Article 67(d), Uniform Code of Military

Justice.

Review by Court of Military Appeals

In any case reviewed by it. . . {t}he Court of Military

Appeals shall take action only with respect to matters

of law.

10 U.S.C. § 912a, Article 112a, Uniform Code of Military

Justice.

Wrongful use, possession, etc., of controlled

substances.

(a) Any person subject to this chapter who wrong-

fully distributes [cocaine] shu:l be punished as a

court-martial may direct.

10 U.S.C. § 934, Article 134, Uniform Code of Military

Justice.

General Article.

{Ajll conduct of a nature to bring discredit upon the

armed forces . . . shall be taken cognizance of by a

general, special or summary court-martial, according

to the nature and degree of the offense, and shall be

punished at the discretion of that court.

REGULATIONS INVOLVED

Department of Defense Pay and Entitlement Manual,

Chapter 1, Paragraph 10316.

Military Confinement.

a. General. Pay and allowances accrue to a member

in military confinement except:

(3) When the term of enlistment expires. See

paragraph 10317 below.

Paragraph 10317.

Term of Enlistment Expires. . .

c. Enlistment Expires Before Trial. An enlisted

member retained in the service for the purpose of trial

by court-martial is not entitied to pay for any period

after expiration of the enlistment unless acquitted or

the charges are dismissed, or the member is retained

in or restored to a full-duty status.

STATEMENT OF THE CASE

Petitioner entered into a pretrial agreement whereunder

he agreed to plead guilty to two charges.' His command-

ing general, on behalf of the government, agreed to sus-

pend any confinement in excess of two years and “all for-

' Petitioner pleaded guilty to violations of Article 112a, UCM4J,

wrongful distribution of cocaine and Article 134, UCM, solicitation

to commit prostitution and indecent acts. 10 U.S.C. §§ 912a, 934.

4

feitures in excess of $250 pay per month for one year.” Ap-

pellate Exhibits I and II. At the time of this agreement,

petitioner had completed his current enlistment contract

but remained on active duty pursuant to an involuntary

extension of his obligated service.? Prosecution Exhibit 1.

At trial, petitioner was convicted pursuant to his pleas

of guilty, as agreed. Record at 48-49. He was sentenced to

a bad-conduct discharge, 18 months’ confinement, total

forfeitures, and reduction to pay grade E-1. Record at 86.

His commanding general suspended the forfeitures in ac-

cordance with the pretrial agreement. The Navy-Marine

Corps Court of Military Review (NMCMR) affirmed the

findings and sentence in an unpublished opinion. Appen-

dix B. The Court of Military Appeals (CMA) subsequently

affirmed NMCMR’s holding. U.S. v. Albert, 30 M.J. 331

(C.M.A. 1990), Appendix A.

Due to his military defense counsel’s erroneous advice,

petitioner believed that his family would continue to re-

ceive his pay, less $250 per month, during his confine-

ment. However, applicable regulations rendered him in-

eligible to receive any pay after his conviction because his

obligated period of active service had expired.’ Therefore,

the portion of the pretrial agreement which limited the for-

feitures of pay to $250 per month for a year was of no

practical benefit to petitioner because, regardless of the

sentence adjudged and approved, he could not have re-

ceived any pay or allowances.

2 A military accused whose term of enlisted service has expired

before trial is retained involuntarily in a “legal hold” status.

} Department of Defense Pay and Entitlement Manual Chapter |,

§ 10317.

REASON FOR GRANTING THE WRIT

THE COURT SHOULD GRANT THE WRIT BECAUSE THE

PETITIONER WAS DENIED HIS SIXTH AMENDMENT

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

Petitioner was denied the benefit of the bargain he

struck with the convening authority‘ in this case. Out of

concern for his family’s welfare, petitioner entered into a

pretrial agreement, which, inéer alia, stated in unambigu-

ous language: “That, for good consideration and after

consultation with my counsel, | agree to enter a voluntary

plea of guilty [provided that all forfeitures in excess of

$250 per month are suspended for one year}” (emphasis

added). Petitioner bargained for this material and signifi-

cant provision so that his family would continue to receive

support during his anticipated incarceration.

Unfortunately for petitioner, at the time he signed this

agreement, his period of obligated service had expired. As

a result, petitioner was not entitled to further pay or allow-

ances at the time the convening authority suspended the

excess forfeitures—rendering this portion of the agree-

ment impotent. Petitioner suffered this unexpected result

because his military defense counsel failed to investigate

this matter and provided him erroneous advice. Peti-

lioner’s sentence included six months’ less confinement

than the bargained-for two years. As a result, petitioner

received nothing in return for his guilty pleas.

Whenever a plea is induced by a promise, the promise

must be fulfilled or the defendant is entitled to relief. San-

lobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30

L.Ed.2d 427 (197!). Appellant’s pleas were induced by the

government’s promise to limit confinement to two years

* The convening authority is the officer who possesses the authority

to create a court-martial and to refer charges to that court-martial. In

this case, petitioner’s commanding general convened the court.

6

and to ensure that his family continued to receive approx-

imately $680 per month for the first twelve months of his

confinement, and $930 each month thereafter.’ The

government made petitioner an illusory promise. Peti-

tioner contends that his guilty pleas are improvident be-

cause his military defense counsel’s assistance was so in-

effective that it amounted to a denial of his constitutional

right to counsel. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2952, 80 L.Ed.2d 674 (1984). The Strickland

standard applies to cases involving guilty pleas. Hill v.

Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203

(1985).’

The military defense counsel’s failure to investigate peti-

tioner’s eligibility for pay and allowances was unreason-

able under the circumstances.

The fact that petitioner was beyond his period of active

service, coupled with petitioner’s obvious desire to ensure

his family’s financial well-being during any term of in-

carceration, provided ample notice to counsel that he

should further investigate petitioner’s pay status. A simple

phone call to a local disbursing clerk would have yielded

this easily accessible information.

> This approximation is based upon then current pay scales, which

provide an E-1 with $671.40 base pay and $258.30 allowance for de-

pendents (BAQ).

® Strickland established a two-part test for ineffectiveness of

counsel: 1) Counsel’s assistance must have been unreasonable under

the circumstances; and 2) Defendant must demonstrate prejudice by

showing a reasonable probability that absent counsel’s errors, the pro-

ceeding would have produced a different result.

’ Hill modified the second prong of the Strickland test by requiring

a showing of reasonable probability that, but for counsei’s errors, the

defendant would not have pleaded guilty.

7

Analogous cases, decided by several circuits, have

found similar acts unreasonable. In Cook v. Lynaugh,®

the Fifth Circuit Court of Appeals found sufficient facts

to alert a reasonably competent counsel of the need to in-

vestigate. Prior to trial, Cook’s attorney received a trial

memo which indicated that Cook was unrepresented by

counsel at an earlier trial. Had the attorney investigated

this matter further, he could have objected to the prior

conviction’s admissibility, thus precluding the govern-

ment’s use of this sole prior conviction to enhance the

sentence under consideration. In this case, petitioner’s

military defense counsel, by virtue of his basic military

training, possessed enough information to put a reason-

ably competent attorney on notice that he should investi-

gate further, yet he failed to act.

Military defense counsel’s failure to investigate resulted

in petitioner being misinformed. Such misinformation has

been ruled unreasonable. Counsel is held accountable, not

for a prediction that proved wrong, but for a misstatement

of easily accessible fact. U.S. Ex Rel. Hill v. Ternullo, 510

F.2d 844 (2nd Cir. 1975).

When counse! provides gross misinformation in re-

sponse ‘to defendant’s inquiries, and the defendant relies

upon that information, then defendant has been denied his

constitutional right to counsel. See Strader v. Garrison,

611 F.2d 61 (4th Cir. 1979) (Ineffective assistance when

counsel erroneously advised client concerning parole eli-

gibility date); Downs-Morgan v. U.S., 765 F.2d 1534 (11th

Cir. 1985) (Counsel’s erroneous response to specific in-

quiry by accused concerning deportation held ineffective

assistance); U.S. v. Nagaro-Garbin, 653 F. Supp. 586

(E.D.Mich. 1987) (Counsel’s misinformation concerning

deportation held ineffective assistance).

* 821 F.2d 1072 (Sth Cir. 1987).

6

and to ensure that his family continued to receive approx-

imately $680 per month for the first twelve months of his

confinement, and $930 each month thereafter.’ The

government made petitioner an illusory promise. Peti-

tioner contends that his guilty pleas are improvident be-

cause his military defense counsel’s assistance was so in-

effective that it amounted to a denial of his constitutional

right to counsel. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2952, 80 L.Ed.2d 674 (1984).° The Strickland

standard applies to cases involving guilty pleas. Hill v.

Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203

(1985).’

The military defense counsel’s failure to investigate peti-

tioner’s eligibility for pay and allowances was unreason-

able under the circumstances.

The fact that petitioner was beyond his period of active

service, coupled with petitioner’s obvious desire to ensure

his family’s financial well-being during any term of in-

carceration, provided ample notice to counsel that he

should further investigate petitioner’s pay status. A simple

phone call to a local disbursing clerk would have yielded

this easily accessible information.

> This approximation is based upon then current pay scales, which

provide an E-! with $671.40 base pay and $258.30 allowance for de-

pendents (BAQ).

® Sirickland established a two-part test for ineffectiveness of

counsel: 1) Counsel’s assistance must have been unreasonable under

the circumstances; and 2) Defendant must demonstrate prejudice by

showing a reasonable probability that abseni counsel’s errors, the pro-

ceeding would have produced a different result.

’ Hill modified the second prong of the Strickland test by requiring

a showing of reasonable probability that, but for counsel’s errors, the

defendant would not have pleaded guilty.

7

Analogous cases, decided by several circuits, have

found similar acts unreasonable. In Cook v. Lynaugh,®

the Fifth Circuit Court of Appeals found sufficient facts

to alert a reasonably competent cornsel of the need to in-

vestigate. Prior to trial, Cook’s attorney received a trial

memo which indicated that Cook was unrepresented by

counsel at an earlier trial. Had the attorney investigated

this matter further, he could have objected to the prior

conviction’s admissibility, thus precluding the govern-

ment’s use of this sole prior conviction to enhance the

sentence under consideration. In this case, petitioner’s

military defense counsel, by virtue of his basic military

training, possessed enough information to put a reason-

ably competent attorney on notice that he should investi-

gate further, yet he failed to act.

Military defense counsel’s failure to investigate resulted

in petitioner being misinformed. Such misinformation has

been ruled unreasonable. Counsel is held accountable, not

for a prediction that proved wrong, but for a misstatement

of easily accessible fact. U.S. Ex Rel. Hill v. Ternullo, 510

F.2d 844 (2nd Cir. 1975).

When counsel provides gross misinformation in re-

sponse ‘to defendant’s inquiries, and the defendant relies

upon that information, then defendant has been denied his

constitutional right to counsel. See Strader v. Garrison,

611 F.2d 61 (4th Cir. 1979) (Ineffective assistance when

counsel erroneously advised client concerning parole eli-

gibility date); Downs-Morgan v. U.S., 765 F.2d 1534 (11th

Cir. 1985) (Counsel’s erroneous response to specific in-

quiry by accused concerning deportation held ineffective

assistance); U.S. v. Nagaro-Garbin, 653 F. Supp. 586

(E.D.Mich. 1987) (Counsel’s misinformation concerning

deportation held ineffective assistance).

* 821 F.2d 1072 (Sth Cir. 1987).

8

The pretrial agreement in this case expressly stated that

petitioner reached his decision after consultation with

counsel. Petitioner’s counsel apparently responded to peti-

tioner’s inquiries regarding a limitation on forfeitures with

gross misinformation—information which petitioner

relied upon, to his clear detriment, in reaching his decision

to plead guilty.

Petitioner was prejudiced by his counsel’s errors. A rea-

sonable probability exists that, but for his attorney’s mis-

representation, petitioner would not have pleaded guilty.

If the implicitly promised inducement — that petitioner’s

family would not be left penniless while he languished in

prison — had been unimportant to him, he would have had

no reason to negotiate for the forfeiture provision. The

plain language of the pretrial agreement, quoted above,

leaves no doubt that the forfeiture provision was a sub-

stantial part of the quid pro quo for petitioner’s guilty

pleas.

Writing for the Court of Military Appeals, Chief Judge

Everett opines that, since petitioner was ineligible for pay

and allowances under applicable pay regulations, he is no

worse off than he would have been had the military judge

awarded forfeitures and no confinement.? Unlike the

accused in Warner, Chief Judge Everett’s analogy here

fails to consider the fact that confinement blocked any

other means petitioner may have had to earn a living for

himself and his family.

% Such a sentence would have rendered the portion of the pretrial

agreement relating to forfeitures inoperative by its own terms. While

the Chief Judge cited no authority, his proposition likely stems from

an earlier C.M.A. opinion. U.S. v. Warner, 25 M.J. 64 (CMA 1987)

bars a sentence which includes total forfeitures when no confinement

has been imposed. Chief Judge Everett, who authored Warner, ap-

parently reasons here that this pretrial agreement provision was just as

innocuous as a provision which the law bars in the interest of public

policy or fundamental fairness.

9

Chief Judge Everett also stated that petitioner would

have pleaded guilty even if the forfeiture provision had not

been included in the pretrial agreement. Nothing in the

record supports this conclusion of fact.'® To the contrary,

the pretrial agreement’s express language shows that the

forfeiture provision provided a powerful inducement for

him to plead guilty.

In the words of Chief Judge Haynesworth, “The simple

fact is that the defendant was misled by erroneous advice.

When the misadvice of the lawyer is so gross as to amount

to a denial of the constitutional right to effective assist-

ance of counsel, leading the defendant to enter an improv-

ident plea, striking the sentence and permitting a with-

drawal of the plea seems only a necessary consequence of

the deprivation of the right to counsel.”!'

'© The court acted improperly in making this finding of fact because

CMA has no fact finding authority. See 10 U.S.C. § 867, Article 67,

Uniform Code of Military Justice.

'' Strader, 611 F.2d at 65.

10

CONCLUSION

This Honorable Court should grant the petition for a

writ of certiorari.

Respectfully submitted,

JOSEPH B. GILBERT

Major, U.S. Marine Corps

Counsel of Record

RANDALL L. CHAMBERS

Lieutenant, JAGC,

U.S. Naval Reserve

NAVY-MARINE CORPS APPELLATE

REVIEW ACTIVITY

Washington Navy Yard,

Building /11

Washington, D.C. 20374

(202) 433-4161

NOVEMBER 1990

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 63,463

NMCM 88-4935

UNITED STATES, APPELLEE

V.

LAWRENCE ALBERT

STAFF SERGEANT

U.S. MARINE CORPS, APPELLANT

Submitted Feb. 21, 1990.

Decided Aug. 27, 1990

OPINION OF THE COURT

EVERETT, Chief Judge:

Appellant entered into a pretrial agreement whereunder

he agreed to plead guilty to two charges and the convening

authority obligated himself to suspend any confinement in

excess Of 2 years and “all forfeitures in excess of $250 pay

per month for. . . 1 year.” At the time of this agreement,

appellant was serving On active duty pursuant to an in-

voluntary extention of his obligated service.

At trial, appellant entered the guilty pleas as agreed and

was convicted pursuant thereto. The sentence adjudged

was a bad-conduct discharge, 18 months’ confinement,

total forfeitures, and reduction to pay grade E-1. The con-

vening authority suspended the forfeitures in accordance

(la)

2a

with the pretrial agreement; and the findings and sentence,

as approved by the convening authority, were affirmed by

- the Court of Military Review in an unpublished opinion.

Under applicable regulations and a decision of the Com-

ptroller General,* Albert was not entitled to receive any

pay after his conviction because his obligated period of ac-

tive service had expired aid had been involuntarily extend-

ed pending trial by court-martial. Therefore, the portion

of the pretrial agreement which limited the forfeitures of

pay to $250.00 per month for a year was of no practical

benefit to appellant because, regardless of the sentence ad-

judged and approved, he would not have received any pay

or allowances.

With this in mind, appellant now has raised this issue,

review of which we granted:

WHETHER THE GOVERNMENT FULLY COM-

PLIED WITH THE TERMS OF APPELLANT'S

PRETRIAL AGREEMENT.

If we answer this issue in the negative, Albert would be

entitled to relief —either enforcement of the agreement or

setting aside the guilty pleas as improvident. Certainly,

when a prosecutor violates a plea bargain, the defendant is

entitled either to specific performance or to an opportuni-

ty to withdraw his guilty pleas. Santobello v. New York,

404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

In United Stated v. Olson, 25 MJ 293 (CMA 1987), we

gave relief to an accused who had complied with the terms

of his pretrial agreement but, due to action by the Govern-

ment, had not received the benefit of his bargain. See a/so

United States v. Churnovic, 22 MJ 401 (CMA 1986) (con-

vening authority attempted to prosecute the accused after

promising not to do so); United States v. Brown, 13 MJ

253 (CMA 1982) (convening authority acted without the

* Cf. 39 Comp. Gen. 42 (1959).

3a

promised input of a particular staff judge advocate);

United States v. Cifuentes, 11 MJ 385 (CMA 1981) (con-

vening authority commuted a fine to forfeitures after

promising to disapprove any fine adjudged); United States

v. Jenkins, 30 MJ 1101 (NMCMR 1989) (convening au-

thority approved the sentence as adjudged after promising

to suspend portions of the punishment).

This case, however, is different from Olson, where the

Air Force recouped $1,107.07 in restitution after repre-

senting at trial that the accused already had made the resti-

tution agreed upon. Here, no representation was made by

the convening authority or trial counsel; and the conven-

ing authority did exactly what he had promised to do.

Moreover, the pretrial agreement was proposed by ap-

pellant and his counsel; and in no way was it forced upon

him by the Government.

Appellant is not entitled now to complain that the ap-

proved sentence had collateral consequences unforeseen

by any of the parties. Indeed, the result here is governed

by United States v. Bedania, 12 MJ 373 (CMA 1982),

which held that the accused’s entitlement to pay was be-

yond the purview of the court-martial and the pretrial

agreement. Cf. United States v. Pajak, 11 USCMA 686,

29 CMR 502 (1960); United States v. Cleckly, 8 USCMA

83, 23 CMR 307 (1957).

If the military judge had adjudged a sentence which in-

cluded forfeitures but no confinement, the portion of the

pretrial agreement concerning forfeitures would have been

inoperative by its own terms, and the sentence itself would

have had no effect on appellant’s pay. Nonetheless, under

the applicable pay regulations, appellant would have re-

ceived no pay and allowances. He can hardly complain

that he will not receive any pay or allowances even though

the convening authority reduced the adjudged sentence ex-

actly as had been promised.

4a

We also disagree with any contention by appellant that

his pleas of guilty were improvident because in some way

they had been induced by the convening authority’s prom-

ise to suspend forfeitures in excess of $250 per month for 1

year. Even making allowance for Albert’s desire to assure

that his family would receive support during any period of

confinement, we are convinced beyond any reasonable

doubt that, if he had been fully apprised of his pay status

as it existed at the time and had been offered a pretrial

agreement which limited confinement but included no

reference to forfeitures, he would have accepted it and

entered the same pleas of guilty.

We conclude, therefore, that the Government complied

with the pretrial agreement, that the guilty pleas were pro-

vident, and that the findings based thereon should not be

set aside.

The decision of the United States Navy — Marine Corps

Court of Military Review is affirmed.

Judges Cox and SULLIVAN concur.

Sa

APPENDIX B

DEPARTMENT OF THE NAVY

OFFICE OF THE JUDGE ADVOCATE GENERAL

200 STOVALL STREET

ALEXANDRIA, VA 22332-2400

IN THE U.S. NAVY-MARINE CORPS

COURT OF MILITARY REVIEW

Before E. M. ALBERTSON, R. A. STRICKLAND and J. E.

RUBENS

UNITED STATES

V.

LAWRENCE ALBERT, 168 44 444]

STAFF SERGEANT (E-6), U.S. MARINE CORrs

NMCM 88 4935 Decided 21 August 1989

Sentence adjudged 25 August 1988. Military Judge: M. J.

Cummings. Review pursuant to Article 66(c), UCMJ, of

General Court-Martial convened by Commanding General,

lst Marine Expeditionary Brigade, Fleet Marine Force,

Marine Corps Air Station, Kaneohe Bay, HI 96863-5501.

LT JacoB R. WALKER, JAGC, USNR, Appellate Defense

Counsel

LT RoBert A. KeMINS, JAGC, USNR, Appellate Govern-

ment Counsel

6a

PER CURIAM:

We have examined the record of trial, the two assign-

ments of error, and the Government’s response, and have

concluded that the findings and sentence are correct in law

and fact and that no error materially prejudicial to the

substantial rights of the accused was committed.

With respect to the first assignment of error, the fact

that appellant was past his EAS and that his pay stopped

when the convening authority took his action! is collateral

to his court-martial. The sentence adjudged at the court-

martial did not end appellant’s active service; that was a

contract matter which predated the court-martial. Since

the court-martial did not cause the end of appellant’s ac-

tive service, there is a question whether the resulting loss

of pay is a collateral “consequence.” Given the apparently

overwhelming evidence against appellant (audio tapes with

transcripts made by undercover NIS agents), the max-

imum authorized punishment, the Government’s with-

drawal of Charge II pursuant to the pretrial agreement,

and the confinement cap of two years in the pretrial agree-

' ment (although not triggered by the adjudged sentence),

we find that even if the stopping of appellant’s pay is a col-

lateral consequence of the court-martial, it is not major or

substantial. Appellant would likely have pled guilty any-

way. Thus, we find that the pleas are provident. See

United States v. Bedania, 12 M.J. 373, 376 (C.M.A.

1982); see also United States v. Walls, 3 M.J. 882, 884

(ACMR. 1977) (misapprehension about maximum im-

posable sentence did not render guilty plea improvident),

aff'd, 9M.J. 88 (C.M.A. 1980). With respect to the second

assignment of error, we specifically find that the adjudged

sentence is appropriate under the circumstances.

' Appellant argues that this nullifies the pretrial agreement term

providing for partial suspension of forfeitures.

7a

Accordingly, the findings of guilty and sentence, as ap-

proved on review below are affirmed.

E. M. ALBERTSON, Senior Judge

R. A. STRICKLAND, Judge

(ABSENT/CONCURS)

J. E. RUBENS, Judge