UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201700059

_________________________

UNITED STATES OF AMERICA

Appellee

v.

ASHLY PINARD

Airman (E-3), U.S. Navy

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Captain Brian Lansing, JAGC, USN.

Convening Authority: Commander, Navy Region Mid-Atlantic, 

Norfolk, VA

Staff Judge Advocate’s Recommendation: Commander Irve C. 

Lemoyne, JAGC, USN. 

For Appellant: Captain Scott F. Hallauer, JAGC, USN.

For Appellee: Lieutenant George R. Lewis, JAGC, USN.

_________________________

Decided 13 June 2017

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Before MARKS, RUGH, and ELLINGTON, Appellate Military Judges

_________________________

This opinion does not serve as binding precedent, but may be cited 

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

_________________________

PER CURIAM:

A military judge, sitting as a special court-martial, convicted the 

appellant, pursuant to his pleas, of one specification of conspiracy to commit 

larceny and one specification of larceny in violation of Articles 81 and 121, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881 and 921 (2012). 

The military judge sentenced the appellant to six months’ confinement, a 

$4,000.00 fine, reduction to pay grade E-1, and a bad-conduct discharge. The 
United States v. Pinard, No. 201700059

2

convening authority approved the sentence as adjudged and, pursuant to a 

pretrial agreement (PTA), attempted to waive the adjudged fine “for the 

maximum allowable period of six (6) months pursuant to Articles [sic]

58b(a)(2)[, UCMJ.]”

Although no issues were raised by the parties, we directed the 

government to show cause why the court should not disapprove the sentence 

to a fine of $4,000.00.

In the PTA, the convening authority agreed to disapprove any adjudged 

fine that exceeded $4,000.00 and approve the deferral and waiver of adjudged 

fines “pursuant to Article 57(a)(2), UCMJ.”1 In attempting to make sense of 

this provision after the announcement of sentence, the military judge asked 

“[t]hen what happens to the fine after [the convening authority acts on the 

sentence]?”2 The trial counsel replied:

Your Honor, my understanding and our position is that it’s 

deferred until the convening authority’s action, and that which 

is not cancelled out by the PTA would then take effect at that 

time.3

The defense counsel and the appellant both concurred with the trial counsel’s 

interpretation. However, the parties did not discuss the meaning or intent of 

the concomitant “waiver of adjudged fines” provision in the PTA.

Article 57(c), UCMJ, directs that a fine is “effective on the date ordered 

executed.” 10 U.S.C. § 857 (2016). Article 58b(b), UCMJ, permits the 

convening authority to “waive any or all of the forfeitures of pay and 

allowances required by subsection (a) for a period not to exceed six months.” 

10 U.S.C. § 858b (2016). However, neither Article 57 nor Article 58b permits

the convening authority to “waive” a fine for any period of time, and no other 

rule grants that power to the convening authority.

As, pursuant to Article 57(c), UCMJ, the fine was unexecuted until the 

convening authority acted, the attempt to “defer” the fine was a nullity, 

without effect. However, the appellant’s bargained for “waiver of adjudged

fines” served to unlawfully delay the payment of the fine as required by the 

law. The government had no authority to strike that bargain, yet that 

provision was one of the few benefits—along with deferral and waiver of 

forfeitures—accruing to the appellant from his PTA.

 

1 Appellate Exhibit III at 1.

2 Record at 128.

3 Id.
United States v. Pinard, No. 201700059

3

Interpretation of a PTA’s meaning and effect is a question of law that we 

review de novo. United States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009). An

appellant’s pleas are improvident when a mutual misunderstanding about a 

material PTA term results in him not receiving the benefit of the bargain. 

United States v. Perron, 58 M.J. 78, 82 (C.A.A.F. 2003) (citing 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)). Therefore, a guilty plea may be withdrawn

when a court-martial’s “collateral consequences are major and the appellant’s 

misunderstanding of the consequences (a) results foreseeably and almost 

inexorably from the language of a pretrial agreement; (b) is induced by the 

trial judge’s comments during the providence inquiry; or (c) is made readily 

apparent to the judge, who nonetheless fails to correct that 

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

1982).

“[I]t is the military judge’s ‘responsibility to police the terms of [PTAs] to 

insure compliance with statutory and decisional law as well as adherence to 

basic notions of fundamental fairness.’” United States v. Soto, 69 M.J. 304, 

307 (C.A.A.F. 2011) (quoting United States v. Partin, 7 M.J. 409, 412 (C.M.A. 

1979)). “To ensure that the record reflects the accused understands the [PTA] 

and that both the Government and the accused agree to its terms, the 

military judge must ascertain the understanding of each party during the 

inquiry into the providence of the plea.” United States v. Smith, 56 M.J. 271, 

272-73 (C.A.A.F. 2002) (citations omitted).4 While RULE FOR COURTSMARTIAL 910(h)(3), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012

ed.), requires only that the military judge “inquire into any parts of a [PTA] 

which were not previously examined” after announcing the sentence, the 

ultimate requirement is that the military judge “address the parties’ 

understanding of any limitations on the sentence in order to assure that 

there is a mutual agreement.” Smith, 56 M.J. at 273 (citations omitted).

Despite the government being unable to comply with a material PTA 

term, the appellant, nonetheless, “‘is entitled to the benefit of any bargain on 

which his guilty plea was premised.’” Smith, 56 M.J. at 272 (quoting Bedania, 

12 M.J. at 375)). When specific performance is not possible, “[a]n 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,” 

provided the appellant accepts the alternate remedy. Perron, 58 M.J. at 86.

 

4 See also RULE FOR COURTS-MARTIAL 910(f), MANUAL FOR COURTS MARTIAL,

UNITED STATES (2012 ed.).
United States v. Pinard, No. 201700059

4

As the government and the appellant are in agreement that this court 

should disapprove the appellant’s sentence to a fine of $4,000.00,

5 we take 

remedial action consistent with their agreement.

CONCLUSION

The findings are affirmed. Only so much of the approved sentence as 

provides for six months’ confinement, reduction to pay grade E-1, and a badconduct discharge is affirmed.

For the Court

R.H. TROIDL

Clerk of Court

 

5 Appellee’s Response to Court Order to Show Cause at 1; Appellant’s Response to 

Court Order to Show Cause at 1.