General rule: guilty plea waives all issues which are not jurisdictional or do not deprive
an accused of due process. Waived by guilty plea: a. Suppression of evidence,
United States v. Cooper, 32 M.J. 83 (C.M.A. 1991)(accused who pleaded guilty without condition
or restriction to
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 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 transactional immunity.”)
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.
Military judge wanted the pleas entered as a basis for 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.