## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, TELLITOCCI, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Specialist JONATHAN R. CHAVEZ-CORRALES United States Army, Appellant

ARMY 20120640

Headquarters, Fo rt Carson David H. Robertson, Military Judge

Colonel John S.T. Irgens, Staff J udge Advocate

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Captain Susrut A. Carpenter, JA (on brief); Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageliery, Jr., JA; Major Vincent T. Shuler, JA; Ca ptain Michael J. Millios , JA (on reply brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L. Varley, JA; Major Elisabeth A. Claus, JA; Capt ain Sean Fitzgibb on, JA (on brief).

31 July 2014

--------------------------------- MEMORANDUM OPINION

---------------------------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

COOK, Senior Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specification of absence without leave and one specification of wrongfully distributing cocain e on divers occasions, in violation of Articles 86 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 912a [hereinafter UCMJ]. The military judge sentenced ap pellant to a bad-conduct discharge and to be confined for 18 months. The convenin g authority, pursuant to a pretrial agreement, only approved six months of co nfinement and a bad-conduct discharge. The conv ening authority also awarded appellant 160 days of confinement

credit.CHAVEZ-CORRALES—ARMY 20120640

2 This case is before us pursuant to Article 66, UC MJ. Appellant raises two assignments of error which meri t discussion bu t no relief.

BACKGROUND

Waivable Motions, Spee dy Trial, and Waiver

Both of appellant’s assign ed errors involve a clause in appellant’s pretrial agreement that required him to “[waive] all waivable motions.” 1 During the inquiry into the providency of appe llant’s guilty plea, the mi litary judge discussed the

ramifications of this clause with appellant and hi s defense counse l as follows:

MJ: [Paragraph] 3d requires you to wa ive all wa ivable motions. Has your defens e counsel discussed this provision of your pretri al agreement with you?

ACC: Yes she did, sir.

MJ: And Defense Counsel which motions are you not making as a result of this provision?

DC: Your honor, the only motion we wo uld have made is a motion for [UCMJ] Article 13 credit. [Appellant] . . . is

1 Assignment of Error I alleges:

THE MILITARY JUDGE ABUSED HIS DISCRETION BY VIOLATING [Rule of Court-Ma rtial] 705(c)(1)(B) WHEN

HE ACCEPTED APPELLANT’S PRETRIAL AGREEMENT WITH A PROVISION THAT STATES,

“WAIVE ALL WAIVABLE MOTIONS” AFTER

ELICITING THAT IT INCLUDED A WAIVER OF

APPELLANT’S RIGHT TO A SPEEDY TRIAL.

Assignment of Error II alleges:

[Appellant] WAS DENIED HIS SIXTH AMENDMENT

RIGHT TO EFFECTIVE COUNSEL BECAUSE HIS

DEFENSE COUNSEL ALLOWED THE GOVERNMENT

TO INSIST ON A PRETRIAL AGREEMENT TERM

THAT WAIVED SPEEDY TRIAL MOTIONS IN VIOLATION OF [Rule of Cour t-Martial] 705(c)(1)(B).CHAVEZ-CORRALES—ARMY 20120640

3 on the record [as having be en] placed in pretrial confinement. It took a while to get his pay turned on. The pay [had been] turned off. It took me and my paralegal telling his unit Ba ttalion XO that they needed to change the [DA Form] 4187. Th ey finally did that and got the pay turned back on.

In addition, [appellant] had re quested his medicine . . . when he [was initially placed in pretrial confinement]. He

continued to ask . . . facilit y [personnel] as well as

mention it to chain of comm and individuals who came and visited him. [I had also], in the beginning . . . mentioned it to the prosecution. But for the agreement and the deal he is receiving I would have made that motion.

MJ: Specialist Chavez, y ou need to understand that

certain motions are waived or given up if de fense counsel

does not make the mo tion prior to enteri ng a plea. Some motions, however, can neve r be given up and those motions would include; dismissal for lack of jurisdiction

or for failure to state an o ffense which can never be given

up.

Now, do you understand that th is term of your pretrial agreement means that you give up the right to make this Article 13 illegal pretrial punishment motion?

ACC: Yes, sir.

MJ: And in particular, this provision means that this court or any appellate court is th en precluded from reviewing that motion and if you were entitled to credit, giving you some credit off your senten ce for any illegal pretrial punishment?

ACC: Yes, sir.

MJ: Now, when you el ected the right to give up litigating these motions, did your defense counsel have a chance to explain this term of your pretrial agreement to you?

ACC: Yes, sir.CHAVEZ-CORRALES—ARMY 20120640

4 MJ: Did anyone force you to enter into this term of your pretrial agreement?

ACC: No, sir.

MJ: And which side originated this term of the pretrial Agreement?

TC: We did, your ho nor, the government.

MJ: Now, although th e government originat ed this term of your pretrial agreement did you freely and voluntarily agree to this term of your pr etrial agreemen t in order to receive what you believe is a beneficial pretrial agreement?

ACC: Yes, sir.

MJ: Now, do you have any othe r questions about this term of the pretrial agreement?

ACC: I do not, sir.

Immediately after completing this port ion of the colloquy, the milita ry judge, sua sponte, initiated a disc ussion in regards to the issue of a speedy trial:

MJ: Now, defense c ounsel, I’m not sure if there is any

merit to these motion s, but did you also look into the issue of speedy trial?

DC: Yes, your honor. After reviewing it and discussing it with my client there is enough defense delay in negotiating the deal, the agreement that we came to, that I

did not believe it was warranted. Despite the fact that there were times that I felt it took longer than necessary to get things signed because the brigade commander is forward and did not leave juri sdiction to anybody else to sign for him. So that wa s a lot of the hold up, but due to the fact that a lot of it had to do with negotiations I do not believe that the speedy trial motion is warranted.

MJ: And so you looked into it under [Rul e for CourtsMartial] 707, Article 1 0, [UCMJ], 5th and 6th

Amendments?CHAVEZ-CORRALES—ARMY 20120640

5 DC: Yes, Your Honor.

MJ: Is that something you have discussed with your

client?

DC: I did, Your Honor.

MJ: By this provision you ar e expressly waiving any such

motions?

DC: I am, Your Honor.

MJ: Is that also your understanding Specialist Chavez?

ACC: Yes, sir.

The military judg e then continued to discuss additi onal provisions of the pretrial agreement with appellant, ultimately finding appellant’s guilty plea to be provident.

LAW AND DISCUSSION

“A pretrial agreement ma y not be condition ed on the accused’s waiver of his statutory and constitutional right to spee dy trial.” United States v. Benitez , 49 M.J. 539, 541 (N.M. Ct. Cr im. App. 1998) (citing United States v. Cummings , 17 U.S.C.M.A. 376, 378, 38 C. M.R. 174, 1 76 (1968) ( overruled on othe r grounds by United States v. Rodriguez , 67 M.J. 110 (C.A.A.F . 2009)). Rule for Courts-Martial [ hereinafter R.C.M.] 705(c)(1)(B) prohibits the enforcement of pretrial agreement terms that deprive an accuse d of certain rights, to incl ude “the right to a speedy trial.” However, an unconditional “plea of gu ilty that results in a finding of guilty waives any speedy trial issue as to that offe nse.” R.C.M. 707(e). In addition, our superior court, in United States v. Tippit , 65 M.J. 69, 75 (C.A .A.F. 2007) found that an unconditional “plea of guilty which result s in a finding of guilt y” not only waives any speedy trial issu e under R.C.M 707(e), but “also waives any speedy trial issue as

to that offense under the Si xth Amendment.”

In initially clarifying what motions we re being waived purs uant to the “waive all waivable motions” clause in the pretri al agreement, appellant and his counsel did not identify speedy trial as an issue. To the contrary, appellant’s counsel stated the only motion impact ed by this clause was “a motion for Arti cle 13 credit.” Appellant’s counsel specifical ly stated that based on issues involving appellant’s pay and deprivation of medi cine, she believed valid gr ounds existed to support a motion seeking Article 13, UCMJ , credit on appell ant’s behalf. It was this motion she and appellant were precluded from filing as a result of the “waive all waivable

motions” clause.CHAVEZ-CORRALES—ARMY 20120640

6 After appellant’s counse l identified the Ar ticle 13, UCMJ moti on as the only one covered by the “waive al l waivable motions” clause, the military judge ensured appellant understood the ramifications of waiving this mo tion; that he had voluntarily agreed to this term; and that he had no questions about this term. It was only after this discussion that the military judge broached the speedy trial issue.

Although it is not entirely clear from the record as to why the military judge inquired into the issue of sp eedy trial, appella nt had spent approxi mately 160 days in pretrial confinement at the ti me of trial and a bout 155 days had tr anspired from the preferral of charges until appellant was arraigned. 2 Absent “excl udable delay[s],” R.C.M. 707 requires that an accused be brought to tria l within 120 da ys after the preferral of charges or imposition of pretri al restraint, whiche ver occurs earlier. R.C.M. 707(a)(1) and (2). It is therefore plausible the m ilitary judge wa s acting out

of an abundance of caution to ensure the record refl ected that th is issue was

discussed at trial. In aski ng appellant’s coun sel about the plausibility of a speedy trial violation, the m ilitary judge specifica lly inquired into wh ether defense counsel had considered the ap plicability of R.C.M. 707, Arti cle 10, UCMJ, and the Fifth and Sixth Amendments to appellant’s case.

It is important to note appellant’s counsel emphasized the lack of merit associated with a speedy trial motion when discussing it wi th the military judge. In response to the milita ry judge’s questions about the issue of sp eedy trial, defense

counsel stated that because there was “e nough defense delay” involved in the negotiations surrounding the pretrial agreem ent, she did “not believe that the speedy trial motion [was] warranted. ” In addition, in response to another question by the military judge about the issu e of speedy trial, appellant’ s counsel stated her review of a speedy trial is sue included R.C.M. 707, Article 10, UCMJ , and the Fifth and

Sixth Amendments to the U. S. Constitution.

It was at this point in the procee dings, after appellant’s counsel had repeatedly stated she was not pursuing a speedy trial motion, ba sed on a lack of merit, that the military judg e inexplicably asked her if she was “expressly waiving any such motions” as a result of “this prov ision,” presumably refe rring to the “waive

all waivable motions” clause found in the pretrial agre ement. Appell ant’s counsel and appellant agreed with the military judg e and then, with no fu rther discussion, the military judge be gan discussing the next provision in the pr etrial agreement.

2 Appellant was placed in pretrial confin ement on 18 January 20 12. Charges were preferred against appe llant on 24 January 2012. Appe llant was arraig ned and tried on the same day, 26 June 2012.CHAVEZ-CORRALES—ARMY 20120640

7 Appellant now argues that (1) he has no t waived his right to raise a speedy trial issue pursuant to R.C.M. 707(e), be cause his pretrial agreement contained a clause that required him to waive his right to a speedy tr ial; and (2) that his defense

counsel was ineffective becaus e she “erroneously bargaine d away the right to raise speedy trial.” Appellant equa tes his situation to the one fa ced by our sister court in

Benitez and requests he be granted similar relief.

While we agree that Benitez is helpful in deciding appe llant’s case, we find its application u ltimately affords appell ant no relief. Benitez’s pretrial agreement contained a clause requiri ng him to waive “all non -constitutional or nonjurisdictional motions.” Benitez , 49 M.J. at 540. When the military judge inquired into this term, it be came apparent no t only that his counsel had intend ed to raise a speedy-trial motion except for this clause, but the clau se was “initi ated by the Government in order to prevent the appellant from raising the issue at trial in return for a favorable agreement.” Id . at 541.

Having found this provisi on in violation of R.C.M. 705(c)(1)(B), the court in

Benitez could not conclude the error was harmless because (1) the government had precluded the defense from making the motion and (2) their revi ew of the record revealed unexplained delays in the pretrial processing of the case that may have supported a speedy trial motion. Id. at 541-42. As a result of their analysis, the Navy-Marine Corps court in Benitez ultimate set aside the findings and sentence. Id.

at 542.

Here, unlike Benitez , defense counsel st ated the only motion she did not file as a result of the pretrial agreement was an Article 13 motion, not a speedy trial motion. Although defense co unsel reviewed the issue, she specifically discounted filing a speedy trial mo tion. This was not du e to a clause in the pretrial agreement,

but because the motion was w ithout merit. Again unlike Benitez , there is no evidence in the record the government insisted on th e clause in issue being included in the pretrial agreement to specifically preclud e the defense from fi ling a speedy trial motion. Our superior court fo und this lack of government co ercion to be crucial in a similarly situated case. See United States v. Rivera , 46 M.J. 52, 55 (C.A.A.F. 1997) (“[I]n the absence of any evidence of co ercion, overreaching, or an attempt to enforce the agreement in a manner contrary to [R.C.M.] 705(c)(1 )(B), we conclude appellant is entitled to no relief.”).

In addition, it is important to note the lack of logi cal reasoning associated with the military judge’s question c oncerning whether appe llant’s counsel was waiving a speedy trial motion only as a result of the clause in qu estion. Appellant’s counsel had just stated: (1) th e only motion she was waiving in regards to this clause concerned Article 13; and (2) based on he r review of the case , any speedy trial motion was unwarranted. Therefore, the qu estion served no va lid purpose. Although counsel respond ed affirmatively to this quest ion, the rest of the recordCHAVEZ-CORRALES—ARMY 20120640

8 stands in stark contrast a nd renders this res ponse irrelevant. The military judge bears primary responsibility for injecting this issu e into a straightfo rward guilty-plea inquiry. However, governmen t counsel, who in this case were responsible for adding this clause to the pretrial agreemen t, must remain vigilant on the limitations associated with such provi sions. Government counsel who include this term in agreements as mere boilerpl ate needlessly inject potenti al issues into trials.

Accordingly, we find the “waive all waivable moti ons” clause di d not require appellant to waive his right to a speedy tria l. The record reflec ts no evidence of coercion or an attempt to enforce the pr etrial agreement in a manner contrary to R.C.M. 705(c)(1)(B). We th erefore conclude appellant is not entitled to relief, and his unconditional plea of guilty and failur e to litigate the speedy trial issue resulted in a finding of guilty that wa ived any speedy trial issue as to that offense. R.C.M. 707(e); see also Tippit , 65 M.J. 69; United States v. Mizgala , 61 M.J. 122 (C.A.A.F. 2005).

C ONCLUSION

We hold the findings of gu ilty and the sentence as approved by the convening authority correct in law and fact. The findings of guilty an d the sentence are

AFFIRMED.

Judge TELLITOCCI and Judge HAIGHT concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: