2008 edition - Fort Sam Houston - U.S. Army
2008 edition - Fort Sam Houston - U.S. Army 2008 edition - Fort Sam Houston - U.S. Army
App. 8 APPENDIX 8 A8-8 [Note 33. If the answer is yes proceed to note 35; if the answer is no, proceed as follows.] MJ: are you pleading guilty because of any promise by the Government that you will receive a sentence reduction or other benefit from the Government if you plead guilty? ACC: . [Note 34. If the answer is no, proceed to acceptance of the plea. If the answer is yes, the military judge should determine from the accused and counsel whether any agreement exists. If so, the plea agreement inquiry should continue. If not, then the military judge should clarify any misunderstanding the accused may have, and ascertain whether the accused still wants to plead guilty. Once any issue is resolved, if the accused maintains the plea of guilty, proceed to acceptance of the plea.] [Note 35. If there is a pretrial agreement, the military judge must: (l) ensure that the entire agreement is presented, provided that in trial by military judge alone the military judge ordinarily will not examine any sentence limitation at this point; (2) ensure that the agreement complies with R.C.M. 705; and (3) inquire to ensure that the accused understands the agreement and that the parties agree to it. See R.C.M. 910(f). If the agreement contains any ambiguous or unclear terms, the military judge should obtain clarification from the parties.] [Note 36. The agreement should be marked as an Appellate Exhibit. If the agreement contains a sentence limitation and trial is before military judge alone, the sentence limitation should be marked as a separate Appellate Exhibit, if possible.] [Note 37. The language below is generally appropriate when trial is before military judge alone. It should be modified when trial is before members.] MJ: , I have here Appellate Exhibit , which is part of a pretrial agreement between you and , the convening authority. Is this your signature which appears (on the bottom of page ), ( ) and did you read this part of the agreement? ACC: . MJ: Did you also read and sign Appellate Exhibit , which is the second part of the agreement? ACC: . MJ: Do you believe that you fully understand the agreement? ACC: . MJ: I don’t know, and I don’t want to know at this time the sentence limitation you have agreed to. However, I want you to read that part of the agreement over to yourself once again. MJ: [After accused has done so.] Without saying what it is, do you understand the maximum punishment the convening authority may approve? ACC: .
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL MJ: In a pretrial agreement, you agree to enter a plea of guilty to (some of) the charge(s) and specification(s), and, in return, the convening authority agrees to (approve no sentence greater than that listed in Appellate Exhibit , which you have just read) ( ). [In addition, (you have agreed to testify against ) ( ) (the convening authority has agreed to withdraw Charge and its specification) ( ). Do you understand that? ACC: . MJ: If the sentence adjudged by this court-martial is greater than the one provided in the agreement, the convening authority would have to reduce the sentence to one no more severe than the one in your agreement. On the other hand, if the sentence adjudged by this court-martial is less than the one in your agreement, the convening authority cannot increase the sentence adjudged. Do you understand that? ACC: . [Note 38. The military judge should discuss the agreement with the accused, and explain any terms which the accused may not understand. If the accused does not understand a term, or if the parties disagree as to a term, the agreement should not be accepted unless the matter is clarified to the satisfaction of the parties. If there are any illegal terms, the agreement must be modified in accordance with R.C.M. 705. The trial counsel should be granted a recess on request to secure the assent of the convening authority to any material modification in the agreement.] MJ: is this agreement, Appellate Exhibit(s) (and ) the entire agreement between you and the convening authority? In other words, is it correct that there are no other agreements or promises in this case? ACC: . MJ: Do counsel agree? TC: . DC: . MJ: , do you understand your pretrial agreement? ACC: . MJ: Do counsel disagree with my explanation or interpretation of the agreement in any respect? TC: . DC: . MJ: (To DC), did the offer to make a pretrial agreement originate with the defense? DC: . MJ: are you entering this agreement freely and voluntarily? App. 8 A8-9
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GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL<br />
MJ: In a pretrial agreement, you agree to enter a plea of guilty to (some of)<br />
the charge(s) and specification(s), and, in return, the convening authority<br />
agrees to (approve no sentence greater than that listed in Appellate<br />
Exhibit , which you have just read) ( ).<br />
[In addition, (you have agreed to testify against )<br />
( ) (the convening authority has agreed to withdraw Charge<br />
and its specification) ( ). Do you understand<br />
that?<br />
ACC: .<br />
MJ: If the sentence adjudged by this court-martial is greater than the one<br />
provided in the agreement, the convening authority would have to reduce<br />
the sentence to one no more severe than the one in your agreement.<br />
On the other hand, if the sentence adjudged by this court-martial<br />
is less than the one in your agreement, the convening authority cannot<br />
increase the sentence adjudged. Do you understand that?<br />
ACC: .<br />
[Note 38. The military judge should discuss the agreement with the accused, and explain any terms<br />
which the accused may not understand. If the accused does not understand a term, or if the parties disagree<br />
as to a term, the agreement should not be accepted unless the matter is clarified to the satisfaction<br />
of the parties. If there are any illegal terms, the agreement must be modified in accordance with<br />
R.C.M. 705. The trial counsel should be granted a recess on request to secure the assent of the convening<br />
authority to any material modification in the agreement.]<br />
MJ: is this agreement, Appellate Exhibit(s)<br />
(and ) the entire agreement between you<br />
and the convening authority? In other words, is it correct that there are<br />
no other agreements or promises in this case?<br />
ACC: .<br />
MJ: Do counsel agree?<br />
TC: .<br />
DC: .<br />
MJ: , do you understand your pretrial agreement?<br />
ACC: .<br />
MJ: Do counsel disagree with my explanation or interpretation of the agreement<br />
in any respect?<br />
TC: .<br />
DC: .<br />
MJ: (To DC), did the offer to make a pretrial agreement originate with the<br />
defense?<br />
DC: .<br />
MJ: are you entering this agreement freely and voluntarily?<br />
App. 8<br />
A8-9
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