United States v. Von Bergen - U.S. Court of Appeals for the Armed ...

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United States v. Von Bergen, No. 03-0629/AFa. Refusal of the court to accept my plea ofguilty, as set forth above, or modification of theplea by anyone during the trial to not guilty or toa lesser degree of guilt.b. Withdrawal by either party to the agreementbefore the trial.The military judge engaged in the following colloquy withAppellant and his counsel regarding the waiver:MJ: Defense counsel, if the accused’s plea of guiltyis determined to be improvident will the accused beafforded an Article 32 investigation or is itpermanently waived?DC: It’s not permanently waived, ma’am.MJ: So it was contingent on the Offer for PretrialAgreement as well?DC: Yes, ma’am.MJ: And trial counsel, do you agree?ATC: Yes, ma’am.MJ: So you understand Airman Von Bergen, that, again,if for any reason I’m not able to accept your plea oryou’re not able to complete your Offer for PretrialAgreement and the convening authority’s not bound byit for some reason, that you would then be affordedyou [sic] right to an Article 32?ACC: Yes, ma’am.The military judge subsequently accepted Appellant’s guiltypleas and sentenced Appellant to a dishonorable discharge,confinement for twenty-eight months, and reduction to the gradeof E-1. The convening authority approved the sentence asadjudged.4
United States v. Von Bergen, No. 03-0629/AFOn appeal, this Court affirmed the finding of guilty on thespecification of distributing child pornography, but reversedthe finding on the specification of possessing child pornographyand set aside the sentence. Von Bergen, 62 M.J. at 370. ThisCourt returned the record of trial to the Judge Advocate Generalof the Air Force for further action consistent with Martinelli,62 M.J. at 52. Von Bergen, 62 M.J. at 370. Accordingly, theconvening authority authorized a rehearing and amended thespecification related to possession of child pornography,eliminating reference to 18 U.S.C. § 2252A(a)(5)(A) andinserting language derived from clauses 1 and 2 of Article 134,UCMJ: “which conduct was prejudicial to good order anddiscipline in the armed forces or of a nature to bring discreditupon the armed forces.”At his rehearing in 2006, Appellant pleaded not guilty tothe amended specification. Appellant withdrew from the pretrialagreement that he had entered at the original court–martial andmoved for an Article 32, UCMJ, investigation. Appellant arguedthat he was entitled to relief from his earlier Article 32,UCMJ, waiver because it was conditioned on the pretrialagreement from which he had since withdrawn. In response, theGovernment argued that no remedy was required because “theaccused clearly waived his right to an Article 32 hearing” and5
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