Additional Misconduct Provision in a PTA

CAAF released its opinion today in United States v. Hunter, __ M.J. ___, No. 07-0386/CG (C.A.A.F. Jan. 11, 2008).

CAAF granted Appellant’s petitions on the following issues:

I. WHETHER R.C.M. 705(c)(2)(D) PERMITS PRETRIAL
MISCONDUCT TO FORM THE BASIS FOR A WITHDRAWAL FROM THE
SENTENCING LIMITATION OF THE PRETRIAL AGREEMENT WHEN
PRETRIAL MISCONDUCT, BY ITS VERY NATURE, CANNOT FALL
WITHIN ANY PERIOD OF SUSPENSION AS REQUIRED BY R.C.M.
1109 SINCE THERE IS NO SENTENCE PRIOR TO TRIAL.

It's not easy to glean the actual issue from the statement of the issue.

The appellant had a PTA which allowed the CA to withdraw from the agreement "from the time the accused signed the agreement until the CA action." The appellant was sentenced to confinement. While being processed for confinement they found stolen items in his belongings, and he failed a pre-confinement urinalysis.

Appellant's argument on appeal was that any misconduct had to have occurred between the time sentence was announced and the CA action. CAAF goes through a good discussion of the PTA clauses, and ultimately rules that appellant's construction of the PTA is wrong.