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Tim Bilecki

Guilty Plea-Effect-Waiver

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.

  1. Seee.g.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).
  2. Seee.g.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:

  1. Jurisdiction. 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.”)
  2. Article 10 violation. United States v. Mizgala , 61 M.J. 122, 127 (C.A.A.F. 2005).
  3. Failure to allege an offense.
  4. 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).
  5. Ost-trial defects.

Another Exception. 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.

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