Pleas

(a) Alternatives. (1) In general. An accused may plead as follows: (A) guilty; (B) not guilty of an offense as charged, but guilty of a named lesser included offense; (C) guilty with exceptions, with or without substitutions, not guilty of the exceptions, but guilty of the substitutions, if any; or (D) not guilty. A plea of guilty may not be received as to an offense for which a sentence of death is mandatory. (2) Conditional pleas. With the approval of the military judge and the consent of the Government, an accused may enter a conditional plea of guilty, reserving the right, on further review or appeal, to review of the adverse determination of any specified pretrial motion. If the accused prevails on further review or appeal, the accused shall be allowed to withdraw the plea of guilty. The Secretary concerned may prescribe who may consent for Government; the Secretary unless otherwise prescribed by concerned, trial counsel may consent on behalf of the Government. (b) Refusal to plead; irregular plea. If an accused fails or refuses to plead, or makes an irregular plea, the military judge shall enter a plea of not guilty for the accused. (c) Advice to accused. Before accepting a plea of guilty, the military judge shall address the accused personally and inform the accused of, and determine that the accused understands, the following: (1) The nature of the offense to which the plea is offered, the mandatory minimum penalty, if any, provided by law, the maximum possible penalty provided by law, and if applicable, the effect of any sentence limitation(s) provided for in a plea agreement on the minimum or maximum possible penalty that may be adjudged including the effect of any concurrent or consecutive sentence limitations; (2) In a general or special court-martial, if the accused is not represented by counsel, that the accused has the right to be represented by counsel at every stage of the proceedings; (3) That the accused has the right to plead not guilty or to persist in that plea if already made, and that the accused has the right to be tried by a court-martial, and that at such trial the accused has the right to confront and cross-examine witnesses against the accused, and the right against self-incrimination; (4) That if the accused pleads guilty, there will not be a trial of any kind as to those offenses to which the accused has so pleaded, so that by pleading guilty the accused waives the rights described in paragraph (c)(3) of this rule; (5) That if the accused pleads guilty, the military judge will question the accused about the offenses to which the accused has pleaded guilty, and, if the accused answers these questions under oath, on the record, and in the presence of counsel, the accused’s answers may later be used against the accused in a prosecution for perjury or false statement; and (6) That if an election by the accused to be tried by military judge alone has been approved, the accused will be sentenced by the military judge. (d) Ensuring that the plea is voluntary. The military judge shall not accept a plea of guilty without first, by addressing the accused personally, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement under R.C.M. 705. The military judge shall also inquire whether the accused’s willingness to plead guilty results from prior discussions between the convening authority, a representative of the convening authority, or trial counsel, and the accused or defense counsel. (e) Determining accuracy of plea. The military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea. The accused shall be questioned under oath about the offenses. (f) Plea agreement inquiry. (1) In general. A plea agreement may not be accepted if it does not comply with R.C.M. 705. (2) Notice. The parties shall inform the military judge if a plea agreement exists. (3) Disclosure. If a plea agreement exists, the military judge shall require disclosure of the entire agreement before the plea is accepted. (4) Inquiry. II-71 (A) The military judge shall inquire to ensure: (i) that the accused understands the agreement; and (ii) that the parties agree to the terms of the agreement. (B) If the military judge determines that the accused does not understand the material terms of the agreement, or that the parties disagree as to such terms, the military judge shall: (i) conform, with Government, understanding; or the agreement to the consent of the the accused’s (ii) permit the accused to withdraw the plea. (5) Sentence limitations in plea agreements. If a plea agreement contains limitations on the punishment that may be imposed, the court-martial, subject to subparagraph (4)(B) and R.C.M. 705, shall sentence the accused in accordance with the agreement. (6) Accepted plea agreement. After the plea agreement inquiry, the military judge shall announce on the record whether the plea and the plea agreement are accepted. Upon acceptance by the military judge, a plea agreement shall bind the parties and the court- martial. (7) Rejected plea agreement. If the military judge does not accept a plea agreement, the military judge shall— (A) issue a statement explaining the basis for the rejection; (B) allow the accused to withdraw any plea; and (C) inform the accused that if the plea is not withdrawn the court-martial may impose any lawful punishment. (8) Basis for rejecting a plea agreement. The military judge of a general or special court-martial shall reject a plea agreement that— (A) contains a provision that has not been accepted by both parties; (B) contains a provision that is not understood by the accused; (C) except as provided in Article 53a(c), contains a provision for a sentence that is less than the mandatory minimum sentence applicable to an offense referred to in Article 56(b)(2); (D) is prohibited by law; or (E) is contrary to, or is inconsistent with, these rules with respect to the terms, conditions, or other II-72 aspects of plea agreements. (g) Findings. Findings based on a plea of guilty may be entered immediately upon acceptance of the plea at an Article 39(a) session unless the plea is to a lesser included offense and the prosecution intends to proceed to trial on the offense as charged. (h) Later action. (1) Withdrawal by the accused. If after acceptance of the plea but before the sentence is announced the accused requests to withdraw a plea of guilty and substitute a plea of not guilty or a plea of guilty to a lesser included offense, the military judge shall permit the accused to do so only for good cause shown. (2) Statements by accused inconsistent with plea. If after findings but before the sentence is announced the accused makes a statement to the court-martial, in testimony or otherwise, or presents evidence which is inconsistent with a plea of guilty on which a finding is based, the military judge shall inquire into the providence of the plea. If, following such inquiry, it appears that the accused entered the plea improvidently or through lack of understanding of its meaning and effect a plea of not guilty shall be entered as to the affected charges and specifications. (i) [Reserved] (j) Waiver. Except as provided in paragraph (a)(2) of this rule, a plea of guilty that results in a finding of guilty waives any objection, whether or not previously raised, as to the factual issue of guilt of the offense(s) to which the plea was made and any non-jurisdictional defect as to the offense(s) to which the plea was made that occurred prior to the plea.