UNITED STATES, Appellee 

v. 

Jesse C. HUNTER, Machinery Technician Third Class 

U.S. Coast Guard, Appellant 

No. 07-0386 

Crim. App. No. 1232 

United States Court of Appeals for the Armed Forces 

Argued December 5, 2007 

Decided January 11, 2008 

RYAN, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined. 

Counsel

For Appellant: Lieutenant Robert M. Pirone (argued); Lieutenant 

Commander Nancy J. Truax (on brief). 

For Appellee: Lieutenant Commander Patrick M. Flynn (argued). 

Military Judge: Stephen McCleary 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Hunter, 07-0386/CG 

2 

Judge RYAN delivered the opinion of the Court. 

Appellant was convicted at a special court-martial, 

pursuant to his pleas, of three specifications of failure to go 

to his appointed place of duty, one specification of willful 

dereliction of duty, one specification of larceny, and one 

specification of dishonorable failure to pay a just debt, in 

violation of Articles 86, 92, 121, and 134, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. §§ 886, 892, 921, 934 (2000). 

The military judge sentenced Appellant to a bad-conduct 

discharge, confinement for eight months, and reduction to E-1. 

The convening authority approved the bad-conduct discharge, 

a reduction to E-2, confinement for eight months, and deferred 

and waived automatic forfeitures. Confinement in excess of 180 

days was suspended for a period of twelve months from the date 

of the convening authority’s action. The United States Coast 

Guard Court of Criminal Appeals affirmed the findings and 

sentence. United States v. Hunter, 64 M.J. 571, 575-76 (C.G. 

Ct. Crim. App. 2007). 

We granted Appellant’s petitions on the following issues: 

I. WHETHER R.C.M. 705(c)(2)(D) PERMITS PRETRIAL 

MISCONDUCT TO FORM THE BASIS FOR A WITHDRAWAL FROM THE 

SENTENCING LIMITATION OF THE PRETRIAL AGREEMENT WHEN 

PRETRIAL MISCONDUCT, BY ITS VERY NATURE, CANNOT FALL 

WITHIN ANY PERIOD OF SUSPENSION AS REQUIRED BY R.C.M. 

1109 SINCE THERE IS NO SENTENCE PRIOR TO TRIAL. 

II. WHETHER APPELLANT’S PLEAS WERE IMPROVIDENT BECAUSE 

THE MILITARY JUDGE FAILED TO ENSURE THAT APPELLANT 
United States v. Hunter, 07-0386/CG 

3 

UNDERSTOOD THE MEANING AND EFFECT OF THE MISCONDUCT 

PROVISIONS IN THE PRETRIAL AGREEMENT, AND THE 

CONVENING AUTHORITY SUBSEQUENTLY WITHDREW FROM THE 

SENTENCING LIMITATION PORTION OF THE PRETRIAL 

AGREEMENT BASED ON PRETRIAL MISCONDUCT.1

We hold that, as long as the procedural protections set 

forth in R.C.M. 1109 are either followed or waived, a convening 

authority may withdraw before action from a pretrial agreement 

(PTA) when the accused violates conditions established pursuant 

to Rule for Courts-Martial (R.C.M.) 705(c)(2)(D). We further 

hold that Appellant has failed to demonstrate material prejudice 

to a substantial right stemming from his plea colloquy; 

therefore he is not entitled to relief. Article 59(a), UCMJ, 10 

U.S.C. § 859(a) (2000). There is no evidence that Appellant 

misunderstood the meaning and effect of the misconduct provision 

within his PTA or that his understanding of it prejudiced his 

ability to make a fully informed decision to plead guilty. 

I. Factual Background

The relevant facts for resolution of the granted issues 

are undisputed. Appellant signed a PTA with the convening 

authority two days prior to trial. Appellant agreed to plead 

guilty to the charged offenses before a military judge. The 

convening authority agreed to disapprove any reduction below the 

pay grade E-2 and to suspend any confinement in excess of 120 

 

1

 65 M.J. 300 (C.A.A.F. 2007). 
United States v. Hunter, 07-0386/CG 

4 

days for a period of twelve months from the date of the 

convening authority’s action. 

The PTA also covered the consequences of additional 

misconduct by Appellant after signing the PTA and before 

completing any sentence. It provided, inter alia, that if 

Appellant committed misconduct after signing the agreement and 

the convening authority acted on that misconduct after 

Appellant’s guilty pleas were accepted but before the convening 

authority took action under R.C.M. 1107, the convening authority 

could set aside the sentence limitations, after affording 

Appellant a hearing “‘substantially similar to the hearing 

required by Article 72, UCMJ, [10 U.S.C. § 872 (2000)], and the 

procedures based on the level of adjudged punishment set forth 

in R.C.M. 1109(d), (e), (f), or (g).’” Hunter, 64 M.J. at 572. 

Two events lead to the instant appeal. First, the 

military judge did not discuss the misconduct provisions in the 

PTA with Appellant during the course of the providency inquiry. 

Second, before the convening authority acted on the adjudged 

sentence, Appellant was alleged to have committed misconduct. 

An inventory of Appellant’s possessions upon entry to the brig 

led to accusations that he was in possession of government 

property that was either stolen or misappropriated. And a 

routine urinalysis administered to him upon entry to the brig 

tested positive for marijuana. 
United States v. Hunter, 07-0386/CG 

5 

The convening authority gave notice that he intended to 

exercise the provision in the PTA that allowed a withdrawal from 

the sentencing limitation contained in the agreement due to 

Appellant’s alleged misconduct. Under the specific terms of his 

PTA, and by operation of R.C.M. 705 and R.C.M. 1109, Appellant 

was entitled to a hearing to determine whether the alleged 

misconduct occurred before the convening authority could 

withdraw from any portion of the sentencing limitation set forth 

in the PTA. 

But Appellant waived his right to a R.C.M. 1109 hearing.2

 

In exchange, the convening authority agreed that only the 

confinement portion of the sentence limitation contained in the 

PTA would be affected and further agreed not to take action on 

the additional alleged misconduct. The ultimate effect of the 

above facts was that Appellant served sixty days of confinement 

that, but for the alleged misconduct, would otherwise have been 

suspended. 

II. Discussion

 Appellant argues that a misconduct provision in a PTA 

governing misconduct that occurs before the convening authority 

 

2

 It was argued that this waiver of the R.C.M. 1109 hearing in 

exchange for sixty additional days of confinement was a new, 

post-trial, agreement under United States v. Dawson, 51 M.J. 

411, 413 (C.A.A.F. 1999). This is an incorrect characterization 

of the events that transpired subsequent to the convening 

authority’s decision to enforce the misconduct provision in the 

pretrial agreement. 
United States v. Hunter, 07-0386/CG 

6 

acts pursuant to R.C.M. 1107 is per se impermissible under 

R.C.M. 1109 because R.C.M. 1109 requires that the withdrawal be 

during the “period of suspension,” or after R.C.M. 1107 action. 

Appellant asserts, therefore, that the convening authority 

breached his PTA by failing to suspend confinement in excess of 

120 days, as required by that agreement when considered without 

reference to the misconduct provision contained therein. In 

addition, Appellant contends that his guilty plea was 

improvident because the PTA misconduct3

 provision was not 

explained to him by the military judge. For the reasons set 

forth below, we reject Appellant’s arguments and affirm the 

decision of the Coast Guard Court of Criminal Appeals. 

A. Intersection of R.C.M. 705 and R.C.M. 1109 

 Appellant accepts that his PTA authorized a withdrawal by 

the convening authority on the basis of misconduct that occurred 

prior to convening authority action. But he argues that this 

provision is unlawful because R.C.M. 705(c)(2)(D) and R.C.M. 

1109, read together, do not permit misconduct that occurred 

prior to convening authority action to be used as the basis for 

 

3

 We note that the granted issue and the party’s briefs refer to 

“pretrial misconduct” and the “pretrial misconduct provision.” 

Nothing in this type of case turns on whether the misconduct 

happened before or after trial. Rather, pursuant to the PTA, 

the pertinent inquiry is whether the convening authority acted 

on the sentence before or after the misconduct provision was 

enforced. 
United States v. Hunter, 07-0386/CG 

7 

a withdrawal from the confinement limitation of a PTA. We 

disagree. 

The interpretation of provisions of the R.C.M., and whether 

a term in a PTA violates the R.C.M., are questions of law that 

we review de novo. United States v. Tate, 64 M.J. 269, 271 

(C.A.A.F. 2007). Ordinary rules of statutory construction apply 

in interpreting the R.C.M. United States v. Clark, 62 M.J. 195, 

198 (C.A.A.F. 2005). We hold that R.C.M. 705(c)(2)(D)’s 

reference to R.C.M. 1109 requires that the procedural 

protections for a suspension and vacation proceeding under 

R.C.M. 1109 be extended to withdrawal from sentence limitations 

of a PTA based on allegations of misconduct. 

Permissible conditions for a PTA are set forth explicitly 

in R.C.M. 705(c)(2). Subsection (D) of this rule specifically 

permits: 

(D) A promise to conform the accused’s conduct to 

certain conditions of probation before action by the 

convening authority as well as during any period of 

suspension of the sentence, provided that the 

requirements of R.C.M. 1109 must be complied with 

before an alleged violation of such terms may relieve 

the convening authority of the obligation to fulfill 

the agreement . . . . 

(emphasis added). 

Of course, R.C.M. 1109 by its terms addresses the 

procedural requirements for “[v]acation of suspension of [a] 

sentence,” not withdrawal from a sentence limitation in a PTA. 
United States v. Hunter, 07-0386/CG 

8 

Appellant nonetheless argues that because R.C.M. 1109(b)(1) 

provides, in relevant part, that where a condition is violated 

“[v]acation shall be based on a violation of the conditions of 

suspension which occurs within the period of suspension,” and 

because the misconduct in this case occurred before the sentence 

was acted on by the convening authority, it did not occur within 

the period of suspension. Accordingly, he asserts that the 

convening authority could not lawfully exercise the provision in 

the PTA that allowed withdrawal before the convening authority 

acted on the sentence. 

 This argument is unsupported by ordinary rules of statutory 

construction. First, Appellant’s contention that R.C.M. 1109 

prohibits PTAs concerning pretrial misconduct is directly 

counter to R.C.M. 705(c)(2)(D), which expressly provides for a 

PTA provision covering conduct “before action by the convening 

authority.” We see no reason to read the R.C.M. in such a 

fashion as to create internal inconsistencies for the purpose of 

nullifying the rules as drafted by the President. See Loving v. 

United States, 517 U.S. 748, 773 (1996) (stating that the 

“President, acting in his constitutional office of Commander in 

Chief, had undoubted competency to prescribe” R.C.M. 

provisions); see also Liteky v. United States, 510 U.S. 540, 552 

(1994) (eschewing a statutory interpretation that would have 

required a statute to “contradict itself”). The requirements of 
United States v. Hunter, 07-0386/CG 

9 

R.C.M. 1109 referenced by R.C.M. 705(c)(2)(D) refer to how a 

vacation hearing should be carried out, not what event triggers 

the hearing. 

Second, while R.C.M. 705(c)(2)(D) does incorporate the 

requirements of R.C.M. 1109 by reference, we decline to read 

this to mean that a misconduct provision can only justify 

withdrawal from sentence limitation portions of a PTA when the 

misconduct occurred after the convening authority takes action 

under R.C.M. 1107 and during the suspension period. This 

reading is contextually unreasonable, especially when the 

provisions can be read to give effect to both. See Williams v. 

Taylor, 529 U.S. 362 (2000) (discussing “the cardinal principle 

of statutory construction that courts must give effect, if 

possible, to every clause and word of a statute”). 

In our view, while R.C.M. 705(c)(2)(D) could have been 

drafted more precisely, the plain import of its reference to 

R.C.M. 1109 is to require a convening authority to comply with 

the R.C.M. 1109 procedural protections before the benefit of a 

PTA can be withdrawn. And while this Court has not expressly 

addressed this issue before, this has been, in fact, how the 

provisions have been interpreted together for some time. United 

States v. Smith, 46 M.J. 263, 265 (C.A.A.F. 1997); United States 

v. Tester, 59 M.J. 644, 646 (A. Ct. Crim. App. 2003); United 

States v. Bulla, 58 M.J. 715, 721 (C.G. Ct. Crim. App. 2003); 
United States v. Hunter, 07-0386/CG 

10 

United States v. Perlman, 44 M.J. 615, 616 (N-M. Ct. Crim. App. 

1996); United States v. Kendra, 31 M.J. 846, 848 (N.M.C.M.R. 

1990); see also Manual for Courts-Martial, United States, 

Analysis of the Rules for Courts-Martial app. 21 at A21-40 (2005 

ed.). Moreover, this is precisely what Appellant’s PTA provided 

for in this case. 

The misconduct provision of Appellant’s PTA complied with 

R.C.M. 705, and the convening authority did not violate the PTA 

by withdrawing from a portion of the sentencing limitation in 

light of Appellant’s post-trial misconduct where Appellant 

waived the procedural protections to which he was otherwise 

entitled under R.C.M. 1109. 

B. The Providency of Appellant’s Plea 

The Court of Criminal Appeals held that the military judge 

legally erred in failing to explain the pretrial misconduct 

provision to Appellant prior to accepting his guilty plea, but, 

despite the error, Appellant was not entitled to relief because 

he failed to establish the material prejudice to a substantial 

right required under Article 59(a), UCMJ. Hunter, 64 M.J. at 

573-74. We agree. 

“Military law imposes an independent obligation on the 

military judge to ensure that the accused understands what he 

gives up because of his plea and the accused’s consent to do so 

must be ascertained.” United States v. Resch, 65 M.J. 233, 237 
United States v. Hunter, 07-0386/CG 

11 

(C.A.A.F. 2007). “The accused must know and understand not only 

the agreement’s impact on the charges and specifications which 

bear on the plea . . . but also other terms of the agreement, 

including consequences of future misconduct or waiver of various 

rights.” United States v. Felder, 59 M.J. 444, 445 (C.A.A.F. 

2004); see also United States v. Jones, 23 M.J. 305, 308 (C.M.A. 

1987) (discussing this Court’s willingness to strike down PTA 

clauses that “violate the institutional safeguards an accused 

has under the Uniform Code of Military Justice”). 

Reflecting these concerns, R.C.M. 910(f)(4) requires that 

where a plea agreement exists the military judge “shall inquire 

to ensure: (A) That the accused understands the agreement; and 

(B) That the parties agree to the terms of the agreement.” This 

inquiry is part and parcel of the providence of an accuser’s 

plea, and necessary to ensure that an accused is making a fully 

informed decision as to whether or not to plead guilty. United 

States v. King, 3 M.J. 458, 458 (C.M.A. 1977). And we have 

noted on more than one occasion that an inquiry that falls short 

of these requirements and fails to ensure the accused 

understands the terms of the agreement is error. Felder, 59 

M.J. at 445. 

When, as in this case, an error is found, we will reject 

the providency of a plea only where the appellant demonstrates a 

“material prejudice to a substantial right.” Id. at 446 (citing 
United States v. Hunter, 07-0386/CG 

12 

Article 59(a), UCMJ). Not every error constitutes a material 

prejudice to a substantial right warranting relief under Article 

59(a), UCMJ. Id.

In this case, the substantial right that must be prejudiced 

is the right to make an informed decision to plead guilty. Cf.

United States v. Ginn, 47 M.J. 236, 247 (C.A.A.F. 1997) (stating 

that “the determination whether the error ‘prejudiced’ the 

defendant by causing him to plead guilty rather than go to trial 

will depend on the likelihood that discovery of the evidence 

would have led counsel to change his recommendation as to the 

plea” in the context of an ineffective assistance of counsel 

case) (emphasis removed); see also Felder, 59 M.J. at 446 

(holding that guilty plea need not be set aside where accused is 

not materially prejudiced by the failure to be questioned on a 

plea agreement provision); United States v. Simpson, 17 C.M.A. 

44, 47, 37 C.M.R. 308, 311 (1967) (stating that there was no 

prejudice when there was nothing in the record that suggested 

either accused would have changed their plea, but for the 

error); United States v. Gonzalez, 61 M.J. 633, 636 (C.G. Ct. 

Crim. App. 2005) (finding an error exists when there is “a 

substantial likelihood that the [a]ppellant would have chosen to 

change his pleas to not guilty and demanded a contested trial”). 

Where there is “no evidence or representation before this Court 

that Appellant misunderstood the terms of his agreement, that 
United States v. Hunter, 07-0386/CG 

13 

the operation of any term was frustrated, [or] that Appellant’s 

participation in the agreement was anything other than wholly 

voluntary” we will not find prejudice. Felder, 59 M.J. at 446. 

We agree with the Court of Criminal Appeals that Appellant 

has not alleged, and the record does not reflect, that Appellant 

was not able to make an informed decision whether to plead 

guilty because the provision in question was not explained to 

him by the military judge. Hunter, 64 M.J. at 574. Moreover, 

as noted by the Court of Criminal Appeals, Appellant’s attorney 

negotiated with the convening authority to waive the R.C.M. 1109 

hearing and increase his confinement based on the provision in 

question in exchange for an agreement not to proceed on the 

allegations of additional misconduct, rather than argue that he 

had never heard of, or did not understand, the provision. 

Instead, Appellant argues he was prejudiced because, due to 

his subsequent misconduct, he spent sixty additional days in 

confinement that would otherwise have been suspended. This is 

not the prejudice we look for in the context of Article 59(a), 

UCMJ, where a PTA provision was not explained to an accused by 

the military judge. See Felder, 59 M.J. at 446. 

Under the facts of this case, we find that Appellant’s 

substantial rights were not prejudiced by the military judge’s 

error in failing to explain the misconduct provision to him 

during the course of the providence inquiry. 
United States v. Hunter, 07-0386/CG 

14 

III. Decision

The decision of the United States Coast Guard Court of 

Criminal Appeals is affirmed.