Ambiguous Pretrial Agreement Provisions

In United States v. Craven, 69 M.J. 513 (A.F. Ct. Crim. App. 2010), review denied, 69 M.J. 209 (C.A.A.F. 2010) the accused pled guilty pursuant to a pretrial agreement that included this quantum: “The approved sentence will not exceed confinement in excess of thirty-six months (36).” The convening authority approved an adjudged dishonorable discharge, 28 months of confinement11, and reduction to E-1. On appeal, the accused argued the quantum portion limited the sentence that could be approved to 36 months’ confinement, which implicitly required the rank reduction and punitive discharge be disapproved. The AFCCA found the quantum was ambiguous and affirmed.

“In determining the parties’ understanding on ambiguous pretrial agreement terms, the Court will give the greatest weight to the parties’ stated understanding at trial, for it is at the pretrial and trial stages where pretrial agreement disagreements can better be resolved.” The court cited United States v. Acevedo, 50 M.J. 169, 173 (C.A.A.F. 1999) for proposition that “trial defense counsel is under a continuing duty to reveal in open court any discrepancy between the defense understanding of the potential sentence and that adjudged by the court”

In dissecting the language, the AFCCA noted: (1) the provision stated “the approved sentence” rather than the unambiguous “the approved sentence to confinement”; and (2) the quantum did not expressly limit the convening authority’s ability to approve other lawfully-adjudged punishments. The AFCCA then concluded, “[T]he pretrial agreement provision is ambiguous and we cannot discern the parties’ intent without examining extrinsic evidence that may shed some light on the parties’ intent.” The AFCCA quickly concluded the parties intended the provision only limit the accused’s sentence to confinement without limiting other punishments. The court emphasized that the parties at trial agreed with the military judge’s interpretation that the convening authority could approve the sentence as adjudged; the AFCCA noted this factor alone would have been sufficient for the court to find the parties’ intent. The AFCCA then found its determination was “buttressed by the fact that neither the appellant nor his trial defense counsel objected to the SJAR” as well as the accused waiting until appeal to dispute the meaning of this provision. The court held the provision was ambiguous on its face (rather than using the parties’ conduct to decide the provision was ambiguous). To reach this determination, the AFCCA reasoned other language could have been added that would have been unambiguous.12 However, the quantum’s limitation of 36 months does not appear to be ambiguous and normally courts interpret the quantum within its specific terms, even if it compels an odd result.

The analysis section of the opinion begins and ends with a broad criticism of challenging the meaning of pretrial agreement for the first time on appeal. At the beginning of its analysis the court wrote, “This is yet another case where the appellant raises a pretrial agreement interpretation issue at the eleventh hour.” At the end of the opinion, the AFCCA repeated the critique: “Lastly, the fact that the appellant waited until this appeal to raise this as an issue belies his assertion that he believed his pretrial agreement forbade the approval of all types of adjudged punishment except confinement.” This issue is not waived by not raising it at trial; the court correctly noted that interpretation of a PTA is viewed under a de novo standard on appeal (citing United States v. Acevedo, 50 M.J. 169, 172 (C.A.A.F. 1999)). However, if the defense counsel does not contradict the military judge’s interpretation of a potentially-ambiguous provision at trial, an appellate court has broad discretion to find that this acquiescence proves the parties’ intent when a PTA term is ambiguous.