UNITED STATES ARMY COURT 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, Fort Carson 

David H. Robertson, Military Judge 

Colonel John S.T. Irgens, Staff Judge Advocate 

For Appellant: Colonel Patricia 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; Captain 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; Captain Sean Fitzgibbon, JA (on brief). 

31 July 2014 

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

MEMORANDUM OPINION 

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

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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 cocaine 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 appellant to a bad-conduct 

discharge and to be confined for 18 months. The convening authority, pursuant to a 

pretrial agreement, only approved six months of confinement and a bad-conduct 

discharge. The convening authority also awarded appellant 160 days of confinement 

credit. 
CHAVEZ-CORRALES—ARMY 20120640 

2 

This case is before us pursuant to Article 66, UCMJ. Appellant raises two 

assignments of error which merit discussion but no relief. 

 

 BACKGROUND 

Waivable Motions, Speedy Trial, and Waiver 

 Both of appellant’s assigned 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 appellant’s guilty plea, the military judge discussed the 

ramifications of this clause with appellant and his defense counsel as follows: 

MJ: [Paragraph] 3d requires you to waive all waivable 

motions. Has your defense counsel discussed this 

provision of your pretrial 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 would 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-Martial] 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 Court-Martial] 705(c)(1)(B). 
CHAVEZ-CORRALES—ARMY 20120640 

3 

on the record [as having been] 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 Battalion XO that they needed to 

change the [DA Form] 4187. They finally did that and got 

the pay turned back on. 

In addition, [appellant] had requested his medicine . . . 

when he [was initially placed in pretrial confinement]. He 

continued to ask . . . facility [personnel] as well as 

mention it to chain of command 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, you need to understand that 

certain motions are waived or given up if defense counsel 

does not make the motion prior to entering a plea. Some 

motions, however, can never be given up and those 

motions would include; dismissal for lack of jurisdiction 

or for failure to state an offense which can never be given 

up. 

Now, do you understand that this 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 then precluded from reviewing 

that motion and if you were entitled to credit, giving you 

some credit off your sentence for any illegal pretrial 

punishment? 

ACC: Yes, sir. 

MJ: Now, when you elected 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 

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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 honor, the government. 

MJ: Now, although the government originated this term of 

your pretrial agreement did you freely and voluntarily 

agree to this term of your pretrial agreement in order to 

receive what you believe is a beneficial pretrial 

agreement? 

ACC: Yes, sir. 

MJ: Now, do you have any other questions about this term 

of the pretrial agreement? 

ACC: I do not, sir. 

 Immediately after completing this portion of the colloquy, the military judge, 

sua sponte, initiated a discussion in regards to the issue of a speedy trial: 

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

merit to these motions, 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 jurisdiction to anybody else to 

sign for him. So that was 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 [Rule for CourtsMartial] 707, Article 10, [UCMJ], 5th and 6th 

Amendments? 
CHAVEZ-CORRALES—ARMY 20120640 

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DC: Yes, Your Honor. 

MJ: Is that something you have discussed with your 

client? 

DC: I did, Your Honor. 

MJ: By this provision you are expressly waiving any such 

motions? 

DC: I am, Your Honor. 

MJ: Is that also your understanding Specialist Chavez? 

ACC: Yes, sir. 

The military judge then continued to discuss additional provisions of the pretrial 

agreement with appellant, ultimately finding appellant’s guilty plea to be provident. 

 LAW AND DISCUSSION 

 “A pretrial agreement may not be conditioned on the accused’s waiver of his 

statutory and constitutional right to speedy trial.” United States v. Benitez, 49 M.J. 

539, 541 (N.M. Ct. Crim. App. 1998) (citing United States v. Cummings, 17 

U.S.C.M.A. 376, 378, 38 C.M.R. 174, 176 (1968) (overruled on other 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 accused of certain rights, to include “the right to a speedy 

trial.” However, an unconditional “plea of guilty that results in a finding of guilty 

waives any speedy trial issue as to that offense.” 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 results in a finding of guilty” not only waives 

any speedy trial issue under R.C.M 707(e), but “also waives any speedy trial issue as 

to that offense under the Sixth Amendment.” 

 In initially clarifying what motions were being waived pursuant to the “waive 

all waivable motions” clause in the pretrial agreement, appellant and his counsel did 

not identify speedy trial as an issue. To the contrary, appellant’s counsel stated the 

only motion impacted by this clause was “a motion for Article 13 credit.” 

Appellant’s counsel specifically stated that based on issues involving appellant’s 

pay and deprivation of medicine, she believed valid grounds existed to support a 

motion seeking Article 13, UCMJ, credit on appellant’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 

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 After appellant’s counsel identified the Article 13, UCMJ motion as the only 

one covered by the “waive all waivable motions” clause, the military judge ensured 

appellant understood the ramifications of waiving this motion; 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 speedy trial, appellant had spent approximately 160 days in 

pretrial confinement at the time of trial and about 155 days had transpired from the 

preferral of charges until appellant was arraigned.2 Absent “excludable delay[s],” 

R.C.M. 707 requires that an accused be brought to trial within 120 days after the 

preferral of charges or imposition of pretrial restraint, whichever occurs earlier. 

R.C.M. 707(a)(1) and (2). It is therefore plausible the military judge was acting out 

of an abundance of caution to ensure the record reflected that this issue was 

discussed at trial. In asking appellant’s counsel about the plausibility of a speedy 

trial violation, the military judge specifically inquired into whether defense counsel 

had considered the applicability of R.C.M. 707, Article 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 with the military judge. In 

response to the military judge’s questions about the issue of speedy trial, defense 

counsel stated that because there was “enough defense delay” involved in the 

negotiations surrounding the pretrial agreement, she did “not believe that the speedy 

trial motion [was] warranted.” In addition, in response to another question by the 

military judge about the issue of speedy trial, appellant’s counsel stated her review 

of a speedy trial issue 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 proceedings, after appellant’s counsel had 

repeatedly stated she was not pursuing a speedy trial motion, based on a lack of 

merit, that the military judge inexplicably asked her if she was “expressly waiving 

any such motions” as a result of “this provision,” presumably referring to the “waive 

all waivable motions” clause found in the pretrial agreement. Appellant’s counsel 

and appellant agreed with the military judge and then, with no further discussion, the 

military judge began discussing the next provision in the pretrial agreement. 

 

2

 Appellant was placed in pretrial confinement on 18 January 2012. Charges were 

preferred against appellant on 24 January 2012. Appellant was arraigned and tried 

on the same day, 26 June 2012. 
CHAVEZ-CORRALES—ARMY 20120640 

7 

 Appellant now argues that (1) he has not waived his right to raise a speedy 

trial issue pursuant to R.C.M. 707(e), because his pretrial agreement contained a 

clause that required him to waive his right to a speedy trial; and (2) that his defense 

counsel was ineffective because she “erroneously bargained away the right to raise 

speedy trial.” Appellant equates his situation to the one faced by our sister court in 

Benitez and requests he be granted similar relief. 

 While we agree that Benitez is helpful in deciding appellant’s case, we find its 

application ultimately affords appellant no relief. Benitez’s pretrial agreement 

contained a clause requiring him to waive “all non-constitutional or nonjurisdictional motions.” Benitez, 49 M.J. at 540. When the military judge inquired 

into this term, it became apparent not only that his counsel had intended to raise a 

speedy-trial motion except for this clause, but the clause was “initiated 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 provision 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 review 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 stated 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 counsel reviewed the issue, she specifically discounted 

filing a speedy trial motion. This was not due to a clause in the pretrial agreement, 

but because the motion was without merit. Again unlike Benitez, there is no evidence 

in the record the government insisted on the clause in issue being included in the 

pretrial agreement to specifically preclude the defense from filing a speedy trial 

motion. Our superior court found this lack of government coercion 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 coercion, 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 logical reasoning associated 

with the military judge’s question concerning whether appellant’s counsel was 

waiving a speedy trial motion only as a result of the clause in question. Appellant’s 

counsel had just stated: (1) the only motion she was waiving in regards to this clause 

concerned Article 13; and (2) based on her review of the case, any speedy trial 

motion was unwarranted. Therefore, the question served no valid purpose. 

Although counsel responded affirmatively to this question, the rest of the record 
CHAVEZ-CORRALES—ARMY 20120640 

8 

stands in stark contrast and renders this response irrelevant. The military judge 

bears primary responsibility for injecting this issue into a straightforward guilty-plea 

inquiry. However, government counsel, who in this case were responsible for 

adding this clause to the pretrial agreement, must remain vigilant on the limitations 

associated with such provisions. Government counsel who include this term in 

agreements as mere boilerplate needlessly inject potential issues into trials. 

 Accordingly, we find the “waive all waivable motions” clause did not require 

appellant to waive his right to a speedy trial. The record reflects no evidence of 

coercion or an attempt to enforce the pretrial agreement in a manner contrary to 

R.C.M. 705(c)(1)(B). We therefore conclude appellant is not entitled to relief, and 

his unconditional plea of guilty and failure to litigate the speedy trial issue resulted 

in a finding of guilty that waived 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). 

 CONCLUSION 

We hold the findings of guilty and the sentence as approved by the convening 

authority correct in law and fact. The findings of guilty and 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: