United States v. Witherspoon

OPINION OF THE COURT

Appellant contends that he was prejudiced by the sentence limitation terms of the pretrial agreement which were operative only if a punitive discharge was adjudged. In light of United States v. Castleberry, 18 M.J. 826 (ACMR 1984), and United States v. Holmes, 17 M.J. 830 (ACMR), pet. denied, 18 M.J. 438 (CMA 1984), we find this contention to be without merit. Such provisions are not violative of public policy.

The findings of guilty and the sentence are affirmed.

concurring in the result:

This case involves a clause in a pretrial agreement similar to that found in United States v. Cross, 19 M.J. 973 (ACMR 1985). Although I disagree with my brothers’ conclusion that the clause does not violate public policy, I find the error harmless in this case.

Appellant’s evidence and argument clearly were calculated to avoid a punitive discharge. Despite the improper tendency of the clause to chill the exercise of appellant’s rights during the sentencing proceedings, the clause did not have that effect in this case. I therefore join my brothers in affirming the findings of guilty and the sentence.