Plea agreements

(a) In general. Subject to such limitations as the Secretary concerned may prescribe, an accused and the convening authority may enter into a plea agreement in accordance with this rule. (b) Nature of agreement. A plea agreement may include: (1) A promise by the accused to plead guilty to, or to enter a confessional stipulation as to one or more charges and specifications, and to fulfill such additional terms or conditions that may be included in II-50 the agreement and that are not prohibited under this rule; and (2) A promise by the convening authority to do one or more of the following: (A) Refer the charges to a certain type of court- martial; (B) Refer a capital offense as noncapital; (C) Withdraw one or more charges or specifications from the court-martial; (D) Have trial counsel present no evidence as to one or more specifications or portions thereof; and (E) Limit the sentence that may be adjudged by the for one or more charges and court-martial specifications in accordance with subsection (d). (c) Terms and conditions. (1) Prohibited terms and conditions. (A) Not voluntary. A term or condition in a plea agreement shall not be enforced if the accused did not freely and voluntarily agree to it. (B) Deprivation of certain rights. A term or condition in a plea agreement shall not be enforced if it deprives the accused of: the right to counsel; the right to due process; the right to challenge the jurisdiction of the court-martial; the right to a speedy trial; the right to complete presentencing proceedings; the complete and effective exercise of post-trial and appellate rights. (2) Permissible terms and conditions. Subject to subparagraph (1)(A), subparagraph (1)(B) does not prohibit either party from proposing the following additional conditions: (A) A promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or to which a confessional stipulation will be entered; (B) A promise to testify as a witness in the trial of another person; (C) A promise to provide restitution; (D) A promise to conform the accused’s conduct to certain conditions of probation before action by the convening authority in a summary court-martial or before entry of judgment in a general or special court- martial as well as during any period of suspension of the sentence, provided that the requirements of R.C.M. 1108 must be complied with before an alleged violation of such terms may relieve the convening authority of the obligation to fulfill the agreement; (E) A promise to waive procedural requirements such as the Article 32 preliminary hearing, the right to trial by court-martial composed of members, the right to request trial by military judge alone, the right to elect sentencing by members, or the opportunity to obtain the personal appearance of witnesses at presentencing proceedings; (F) When applicable, a provision requiring that the sentences to confinement adjudged by the military judge for two or more charges or specifications be served concurrently or consecutively. Such an agreement shall identify the charges or specifications that will be served concurrently or consecutively; and (G) Any other term or condition that is not contrary to or inconsistent with this rule. (d) Sentence limitations. (1) In general. Subject to such limitations as the Secretary concerned may prescribe pursuant to R.C.M. 705(a), a plea agreement that limits the sentence that can be imposed by the court-martial for one or more charges and specifications may contain: (A) a limitation on the maximum punishment that can be imposed by the court-martial; (B) a limitation on the minimum punishment that can be imposed by the court-martial; (C) limitations on the maximum and minimum punishments that can be imposed by the court-martial; or, (D) a specified sentence or portion of a sentence that shall be imposed by the court-martial. (2) Confinement and fines. (A) General or special courts-martial. (i) In a plea agreement in which the accused waives the right to elect sentencing by members and agrees to a limitation on the confinement or the amount of a fine that may be imposed by the military judge for more than one charge or specification under paragraph (1), the agreement shall include separate limitations, as applicable, for each charge or specification. (ii) In a plea agreement in which the convening authority and accused agree to sentencing by members, limitations on the sentence that may be adjudged shall be expressed as limitations on the total punishment that may be imposed by the members. (B) Summary court-martial. A plea agreement involving limitations on the sentence that may be adjudged shall be expressed as limitations on the total punishment that may be imposed by the court-martial. (3) Other punishments. A plea agreement may include a limitation as to other authorized punishments as set forth in R.C.M. 1003. (4) Capital cases. A sentence limitation under paragraph (1) may not include the possibility of a sentence of death. (5) Mandatory minimum punishments for certain offenses. A sentence limitation under paragraph (1) may not provide for a sentence less than the applicable mandatory minimum sentence for an offense referred to in Article 56(b)(2), except as follows: (A) If the accused pleads guilty to the offense, the agreement may have the effect of reducing a mandatory dishonorable discharge to a bad-conduct discharge. (B) Upon recommendation of trial counsel, in exchange for substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense, a plea agreement may provide for a sentence that is less than the mandatory minimum sentence for the offense charged. (e) Procedure. (1) Negotiation. Plea agreement negotiations may be initiated by the accused, defense counsel, trial counsel, the staff judge advocate, convening authority, or their duly authorized representatives. Either the defense or the Government may propose any term or condition not prohibited by law or public policy. Government representatives shall negotiate with defense counsel unless the accused has waived the right to counsel. (2) Formal submission. After negotiation, if any, under paragraph (1), if the accused elects to propose a plea agreement, the defense shall submit a written offer. All terms, conditions, and promises between the parties shall be written. The proposed agreement shall be signed by the accused and defense counsel, if any. (3) Acceptance by the convening authority. (A) In general. The convening authority may either accept or reject an offer of the accused to enter into a plea agreement or may propose by counteroffer any terms or conditions not prohibited by law or public policy. The decision whether to accept or reject an offer is within the sole discretion of the convening authority. When the convening authority has accepted a plea agreement, the agreement shall be signed by the convening authority or by a person, such as the staff judge advocate or trial counsel, who has been authorized by the convening authority to sign. (B) Victim consultation. Whenever practicable, prior to the convening authority accepting a plea agreement the victim shall be provided an opportunity II-51 in accordance with to submit views concerning the plea agreement terms and conditions regulations prescribed by the Secretary concerned. The convening authority shall consider any such views provided prior to accepting a plea agreement. For purposes of this rule, a “victim” is an individual who is alleged to have suffered direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification under consideration and is named in one of the specifications under consideration. (4) Withdrawal. (A) By accused. The accused may withdraw from a plea agreement at any time prior to the sentence being announced. If the accused elects to withdraw from the plea agreement after the acceptance of the plea agreement but before the sentence is announced, the military judge shall permit the accused to withdraw only for good cause shown. Additionally, the accused may withdraw a plea of guilty or a confessional stipulation entered pursuant to a plea agreement only as provided in R.C.M. 910(h) or 811(d). (B) By convening authority. The convening authority may withdraw from a plea agreement at any time before substantial performance by the accused of promises contained in the agreement, upon the failure by the accused to fulfill any material promise or condition in the agreement, when inquiry by the military judge discloses a disagreement as to a material term in the agreement, or if findings are set aside because a plea of guilty entered pursuant to the agreement is held improvident on appellate review. (f) Nondisclosure of existence of a plea agreement. No court-martial member shall be informed of the existence of a plea agreement, except upon request of the accused or when the military judge finds that disclosure of the existence of the plea agreement is manifestly necessary in the interest of justice because of circumstances arising during the proceeding. In addition, except as provided in Mil. R. Evid. 410, the fact that an accused offered to enter into a plea agreement, and any statements made by an accused in connection therewith, whether during negotiations or during a providence inquiry, shall not be otherwise disclosed to the members.