General rule: guilty plea waives all issues which are not jurisdictional
or do not deprive an accused of due process. Waived by the guilty plea:
a. Suppression of evidence, confessions, identifications.
United States v. Cooper, 32 M.J. 83 (C.M.A. 1991)(accused who pleaded guilty without condition
or restriction to an offense of adultery did not preserve for appellate
review his motion to suppress items seized in an illegal search by pleading
not guilty to rape of the same victim at the same place and time).
United States v. Hinojosa, 33 M.J. 353 (C.M.A. 1991). Accused’s motion to suppress statements
to CID was denied. Accused then entered guilty pleas to some of the offenses
and not guilty to the remaining offenses. The government, however, elected
to present no evidence on the contested allegations and those specifications
were dismissed. Accused’s guilty pleas foreclosed any appellate
relief from the unsuccessful suppression motion. b. Pretrial processing defects.
Not waived by a guilty plea:
United States v. Conklan, 41 M.J. 800, 805 (Army Ct. Crim. App. 1995) (accused may not bargain
away “non-frivolous, good faith claims of lack of jurisdiction and
Article 10 violation.
United States v. Mizgala , 61 M.J. 122, 127 (C.A.A.F. 2005).
- Failure to allege an offense.
Unlawful command influence.
But see United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995) (condition in PTA waiving command influence
motion, originating from defense, does not violate public policy).
- Ost-trial defects.
United States v. Lippoldt, 34 M.J. 523 (A.F.C.M.R. 1991). Prior to entry of plea, defense moved
to require the prosecution to elect to proceed on either conspiracy to
possess marijuana or distribution of same marijuana as an aider or abettor.
The military judge wanted the pleas entered as a basis for the development
of the facts so that he could decide the motion. No waiver.
R.C.M. 910(a)(2). Will
not waive pretrial motions made a part of the conditional guilty plea.
If you have been charged with any kind of crime, including sexual assault,
contact the law office of Bilecki and Tipon, LLLC today. Our
court martial defense lawyers are available to help you 24/7.