Model pretrial agreement for mental health care for veterans

8/10/2019 Model pretrial agreement for mental health care for veterans

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Citation: 208 Mil. L. Rev. 200 2011

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2 11] REH BILIT TIVE ETHIC IN MILIT RY JUSTICE

Appendix G

Model retrial Agreement for Mental Health TreatmentPrograms 756

201

United StatesV.

SPC James D. Jones 23 45 6789

A Co15 4 PIRC o 1 5 0IROFFER TO PLEAD GUILTY

82d Airborne Division

I Specialist James D Jones, U S Army, the accused in the GeneralCourt-Martial now pending, having had an opportunity to examine thecharges preferred against me and all statements and documents attachedthereto, and in exchange for good consideration, and after consultingwith my defense counsel, [ ] offer to plead as follows.

To Specification 1 of the Charge: Guilty

To Specification 2 of the Charge: Guilty

To The Charge: Guilty

2. I offer to plead as indicated above, provided that the ConveningAuthority agrees to the following:

a To take the action specified in the Quantum; and

756 This template may omit certain standard pretrial agreement provisions. It can be

modified to accommodate post-conviction agreements and should be used only asa

starting point.

HeinOnline -- 208 Mil. L. Rev. 201 2011


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b. There are no other promises, conditions, or understandingsregarding my proposed pleas of guilty that are not contained in this offerand the Quantum portion.

3. I further offer to do the following:

a I understand that I have a right to be tried by a court consisting of atleast five officer members, or by a court consisting of at least one-thirdenlisted members. None of the members would come from my company.I further understand that I have a right to request trial by military judgealone, and, if approved, there would be no court members and the judgealone would decide whether I am guilty or not guilty. If found guilty, thejudge alone would determine my sentence. Knowing all of the above, Iagree to be tried by judge alone.

b. Enter into a written stipulation with the trial counsel of the factsand circumstances directly relating to or resulting from the offense andfurther agree that this stipulation may be used to inform the members ofthe court or the military judge, if tried by her) him) alone, of matterspertinent to an appropriate finding and sentence.

c I fully understand that if I engage in misconduct after signing thispretrial agreement, I may forfeit the benefits of this agreement.Misconduct means any act or failure to act that violates a punitive articleof the Uniform Code of Military Justice UCMJ) or federal or statecriminal law that applies to me at the time and place of the violation. If Iengage in misconduct at any time, between when I sign this pretrialagreement and the time that I complete the sentence approved by theConvening Authority, including any period of probation or period inwhich a sentence component is suspended, the Convening Authority willbe able to act on this agreement based on that misconduct. The action theConvening Authority may take on this agreement depends on when theConvening Authority acts, if she) he) chooses to act, not on when themisconduct occurs, so long as the misconduct occurs within thetimeframe governed by this provision. There are three periods of timeduring which the Convening Authority may act on this agreement basedon my misconduct: 1) from the time the Convening Authority and I signthis pretrial agreement until the time the military judge accepts myplea s); 2) from the time the military judge accepts my plea s) until theConvening Authority takes her) his) R.C.M. 1107 action; and 3) fromthe time the Convening Authority takes her) his) R.C.M. 1107 actionuntil I have completed serving my entire sentence including any period

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2011] REH BILIT TIVE ETHIC IN MILIT RY JUSTICE

o suspension or probation, i applicable) as finally approved andexecuted;

d I understand that if, based on my misconduct, the ConveningAuthority acts on this agreement after she) he) and I sign this pretrialagreement but before the military judge accepts my plea s), theConvening Authority may use such misconduct as grounds to unilaterallywithdraw from this plea agreement. Should the Convening Authority doso, I understand that the pretrial agreement would therebybecome nulland void, and both I and the Convening Authority would be relieved ofall obligations and responsibilities that either o us would have beenrequired to meet by the terms o this pretrial agreement;

e I further understand that, if based on my misconduct, theConvening Authority acts on this agreement after the time the militaryjudge accepts my plea s) but before the Convening Authority takes her) his) R.C.M. 1107 action, such misconduct may be the basis for settingaside the sentencing provisions o the pretrial agreement. Before settingaside the sentencing provisions o this agreement, however, theConvening Authority shall afford me a hearing, substantially similar tothe hearing required by Article 72, UCMJ, and the procedures based onthe level o adjudged punishment set forth in R.C.M. 1109 d), e), f), or g), to determine whether misconduct occurred and whether I committedthe misconduct; and

f. I further understand that if, based on my misconduct, the ConveningAuthority acts on this agreement after the time the Convening Authoritytakes her) his) R.C.M. 1107 action, but before I have completed servingthe entire sentence including any period of suspension or probation, ifapplicable) as finally approved and executed, the Convening Authoritymay, after compliance with the hearing procedures set forth in R.C.M.1109, vacate any periods o suspension agreed upon in this pretrialagreement or as otherwise approved by the Convening Authority.7 17

7 7 eeUnited States v. Coker, 67 M.J. 571, 576 77 C.G. Ct. Crim. App. 2008) requiring a description of the process under which vacation proceedingswill occur).

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Treatment Court Participation and Completion

g As further consideration of this agreement, I agree to voluntarilyenroll into the ] County Veterans Treatment Court (VTC),located at [ ] I agree to undergo all testing andevaluation required for my initial entry into and continued participationin the VTC program. If it is determined that I meet criteria established bythe court to pay for treatment, which may include participation in aresidential facility, I shall bear the cost for payment of this evaluationand treatment through a monetary allotment administered by the DefenseFinance and Accounting Office, and present proof of that allotment to theConvening Authority s Staff Judge Advocate. I will participate in theprogram until I have obtained a certificate of graduation, or until I havebeen terminated, whichever comes sooner, understanding that theprogram will not exceed twenty-four 24) months.758 Graduation must becertified by the VTC Judge and I will provide a duly certified report ofcompletion to the Convening Authority s Staff Judge Advocate.

Program Description for Veterans Treatment Court

h. I understand that the VTC is a special intensive treatment programfor criminal offenders who have served in the military. It is a voluntaryprogram that requires all participants to have regular court appearances,scheduled and random drug tests, individual and group counselingsessions, active participation in residential, transitional, sober-livingenvironments, or an outpatient program, and regular attendance atmeetings.

758 ee Spriggs v. United States, 40 M.J. 158, 163 C.M.A. 1994)(requiring a clearunderstanding of treatmentprogram duration).

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Rules and Obligations75 9

i I further understand that, as a participant in the VTC, I will besubject to the following rules: 7 6 refrain from violating state and locallaws, in addition to the UCMJ, which include traffic offenses and drivingwithout a valid license; attend all VTC-required court appearances andother appointments, such as intake, office visits, home visits, and phonecalls; be on time for scheduled appointments; reschedule any missedappointments; refrain from violence or threats toward other participants,staff, or court personnel; refrain from possessing drugs, alcohol, orweapons or bringing these items to court or other treatment facilities;refrain from tampering with my own or anyone else's urine or drug-testing devices; do not argue with the Judge or other team members;dress appropriately for scheduled appointments and do not wear clothingbearing drug or alcohol-related themes or advertising alcohol or druguse; be respectful by following directions of team members, courtpersonnel, and deputies regarding behavior, cell phones, and talkingwhile in court. I agree to abide by these rules.

j. I understand that I will also be subject to the followingobligations:7 6 1 making weekly or bi-weekly court appearances asdetermined by the VTC Judge; unannounced searches of my property orperson; being present for home visits and phone calls; at least one grouptherapy session per week; drug testing at least three times per week (drugtest patch and immediate-result drug tests may be used at the treatmentteam s discretion, if appropriate); taking medications as directed bymedical and/or mental health professionals; attending at least five self-help meetings per week (if applicable); reporting to a social worker andprobation officer at least once per week; completing additional casemanagement services as determined by the treatment team(detoxification, employment search, psychiatric and/or psychologicalevaluation); making consistent financial payments to probation, andother agencies as determined by the treatment team; curfew as indicatedby the treatment team or facility; searching for and obtaining

7 9 These basic rules and obligations, which are applicable in almost all VTCs areprovided as an adaptable template to meet the requirements articulated in Coker 67 M.J.at 57676 These rules are modeled off of THE TULSA CNTY. DIST. COURT VETERANS TREATMENTCOURT PROGRAM PARTICIPANT HANDBOOK (Dec. 10, 2009 (on file with the Nat l Ass'nof Drug Court Prof'ls, Justice for Vets, Alexandria, Va.).761

These obligations are modeled off of the Orange County Veterans Court Participant sHandbook. SUPERIOR COURT OF CAL., supra note 606.

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employment, developing a treatment plan, participating in educationalprograms, which includes parenting classes; undergoing detoxification;and, participating in residential programs. Aside from reporting to aprobation officer associated with the VTC, I may also be required tomeet with a military probation officer. I agree to comply with theseobligations.

k. I understand that I may not advance in the program, or I may beterminated from it, if I have positive drug tests including missed ortampered tests); unexcused absences from scheduled services; i I misstaking medications or fail to take medications as directed; if I fail toacknowledge the extent of any substance abuse problem and fail tocommit to living an alcohol- and drug-free lifestyle; i I fail to submitrequired reports or plans; i I fail to participate in community service; i Ifail to become a mentor to a new VTC participant as approved by mytreatment team; or if I fail to maintain full-time employment or makeprogress toward it or an educational goal.

Sanctions

1. I understand that the treatment team may impose any o thefollowing sanctions on me: Admonishment from the court; increaseddrug testing; writing an essay, which must be read aloud, as instructed;increased participation in self-help meetings; increased participation inindividual and/or group counseling sessions; increased frequency o VTCappearances; community service hours in addition to those required bythe program; demotion to an earlier program phase; commitment tocommunity residential treatment; incarceration; finding o a formalprobation violation; termination from the program.7 6 2

76 ven though a VTC treatment team might change the requirements for effectivetreatment over time, this would not invalidate the plea agreement. For example, a militaryappellate court upheld pretrial agreement terms that required the accused to pay childsupport, even i the state court modified the terms of that obligation. 1 FRANCIS A.GILLIGAN FREDRIC I. LEDERER COURT-MARTIAL PROCEDURE 12-25.19 b), at 12-18

3d ed. 2006) discussing United States v. Smith, No. 83 4182 N.M.C.M.R., Feb. 16,1984)).

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Intermittent Confinement

m. I fully understand that, i permitted to participate in a VTC, I agreeto serve a term o up to sixty 60) days intermittent confinement in aconfinement facility chosen by the VTC Judge. This intermittentconfinement may be imposed on me as a sanction related to my treatmentplan based on the determination o my treatment team. It may beimposed on me in increments o up to ten 10) days. Intermittentconfinement does not constitute pretrial confinement under R.C.M. 305While a violation o the UCMJ or other misconduct, as defined in thisagreement, may be a basis for vacating suspension of a suspendedsentence, intermittent confinement, alone, is not a basis for vacating anysuspension. In the event that my adjudged confinement is reinstated, Iwill be credited with any intermitted confinement served during VTCparticipation.

Relationship Between Veterans Treatment Court Rules and Conditions oSuspension763

n. I understand that violation o the VTC rules and obligations willnormally be addressed by the treatment team assigned to my case, andcould lead to termination from the VTC program. If violations o theVTC rules and obligations constitute misconduct, as defined in thisagreement, or i I am terminated from the VTC for any reason, thisconduct may serve as the basis for the convening authority to withdrawfrom this agreement, rendering it null and void, or may serve as the basisfor the Convening Authority to vacate any or all previously suspendedportions o my sentence, causing me to have to serve the previouslysuspended sentence.

Requirement to Extend Enlistment Beyond ETS to Permit TreatmentCourt Participation

o I understand that I am expected to participate in the VTC program,continuously, for a period o ] months. The current Expiration of

76 This provision exists to address concerns related in United States v Cockrell 60 M.J.501, 506 C.G. Ct. Crim. App. 2004) requiring an understanding of what constitutes amaterial term in the plea agreement when various other conditions may representviolations o treatment program rules); United States v. Martin, 2006 CCA LEXIS 330, at

*4 C.G. Ct. Crim. App., Dec. 6 2006) unpublished) requiring an understandingo

theinteraction between provisions).

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my Term of Service ETS) occurs on [ ] which is a date thatwill not currently afford me the full benefit of treatment. Under the termsof this agreement, I am aware that I am required to extend my enlistmentso that I can benefit from the VTC program and the Convening Authoritycan determine the disposition of my sentence. I also understand that byextending my enlistment, I will be subject to the sentence adjudged bythe Court-Martial if I have been found in violation of the terms of thisagreement, even though my current ETS will be expired and I will have anew ETS date.

p. I am initially required to request an extension of my enlistmentmonths prior to my ETS. I will submit my request no later than] which is one month prior to the suspense date. If I fail to meet

this suspense, I may be found in violation of a material term of thisagreement. Furthermore, after an initial extension, I am required torequest further extensions of my enlistment every [_] days. To ensurethat I am compliant with these rules, I will submit each of my periodicrequests _] days before the deadline. If I fail to timely submit any ofthese required requests, this is also grounds for vacation of anysuspension.764

764 his paragraph should be drafted in accordance with Service regulations that governextensions of enlistment. See e.g. U.S. DEP'T OF ARMY, REG. 601-280 ARMY RETENTIONPROGR M 4-8.a, at 20 31 Jan. 2006) (providing for extensions of ETS dates not longerthan 23 months); id 4-8.i 1 6) (permitting extensions for soldiers in substance abuseprograms as well as those who are pending [military] legal action. . until final outcomeof action ). Noting how, [e]ven though a Marine does not have sufficient timeremaining on an enlistment to serve [a] period of suspension, the Marine Corps permitsextensions of expiration of terms of service for the purpose of restoration to duty, provided the Marine consents in writing to an extension of enlistment for the required

suspension period in the following manner:

With full knowledge that the unexecuted portion of my sentencemay be suspended for the purpose of allowing me to serve onactive duty during the period of suspension, I hereby agree to beretained on active duty for the period of suspension, such periodnot to exceed 1 year. I further understand that the suspensionmay be vacated in accordance with R C M 1109 . . in whichevent the unexecuted portion of my sentence shall be executed.

U.S. MARINE CORPS, ORDER P5800.16A, MARINE CORPS MANUAL FOR LEGAL DMINISTR TION LEGADMINMAN) 1008 1)- 2) 31 Aug. 1999) (citing from the

paragraph titled Agreement to Extend Enlistment for the Purpose of Serving a Period ofSuspension ).

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q. I understand that my conviction may be disapproved at theConvening Authority's discretion. 65 The Convening Authority will havethe option o separating me with an administrative discharge upondisapproval o the findings or remission o my sentence, or (she) (he)may offer me the opportunity to continue active service i I am deemedo further benefit to the military. However, I will not be required to servethe remainder o any remaining time on an existing ETS date, includingan ETS extenstion that was provided to enable my completion of a VTCprogram, unless the Convening Authority offers me this opportunity andI affirmatively elect to continue service. I further understand thatsuccessful completion o the terms o this agreement does not guaranteeme the opportunity to continue my military service.

r. To the extent, i any, the Secretary of the Army has, through theprovisions o AR 635-200, provided me a right to a hearing before anadministrative discharge board, I agree to waive my right to a hearingbefore an administrative discharge board, doing so with fullunderstanding of the consequences o waiving such a board, as explainedby defense counsel. I understand that any administrative discharge willbe characterized in accordance with Service regulations, and may begeneral under honorable or under other than honorable conditions. I willsubmit a written waiver to the Convening Authority, upon request.766

s I agree to make restitution in the amount o [ ] to theeconomic victim o my misconduct, [Name of Victim], on the date oftrial and the remaining balance [ ] by [date]. I expressly representthat I will have the economic means to make full restitution by [date].Through my defense counsel, I will provide the trial counsel with acashier's check or money order made payable to [Name of Victim]. Ifully understand that failure on my part to meet this obligation may serveas the basis for the Convening Authority to withdraw from this

765 If it is contemplated that the convening authority would disapprove the findings of thecourt-martial following proof of the accused's successful rehabilitation in a treatmentcourt, counsel should explore an agreement term which permits the convening authorityto hold the action in abeyance to enable such evaluation since the convening authorityonly has one opportunity to disapprove the findings.766 For guidance concerning this provision, see, e.g., United States v. Tate, 64 M.J. 269,271 C.A.A.F. 2007) ( [A]s part of a pretrial agreement an accused may agree to waivean administrative discharge board hearing, as provided in applicable administrativeregulations. ); United States v. Gansemer, 38 M.J. 340, 340 C.M.A. 1993) (upholding apretrial agreement that contemplated processing for administrative discharge and waivero a

board eveni

part or all of the sentence, including a punitive discharge,is

suspended or disapproved pursuant to the agreement ).

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agreement, rendering it null and void, or may serve as the basis for theConvening Authority to vacate any or all previously suspended portionso my sentence, causing me to have to serve the previously suspendedsentence.767 I further understand that the duty to pay restitution, asoutlined in this agreement, exists independently of, and regardless of, theConvening Authority's approval or disapproval of any deferments orwaivers o forfeitures, and independently of, and regardless of, theConvening Authority's approval or disapproval o any fines.

4. In offering the above agreement, I state that:

a I am satisfied with the defense counsel who has been detailed todefend me, and I believe that (her) (his) advice is in my best interest.

b This offer to plead guilty originated with me and no persons havemade any attempt to force or coerce me into making this offer to pleadguilty.

c My defense counsel has advised me o the meaning and effect ofmy guilty plea and I understand the meaning and effect thereof. Iunderstand that by pleading guilty I am giving up three important rights:the right against self incrimination (the right to say nothing at all); theright to a trial of the facts by the court (the right to have the court decidewhether or not I am guilty based upon evidence the prosecution wouldpresent and any evidence I may present); and the right to be confrontedby and to cross-examine any witness called against me.

d I understand that I may request withdrawal o this plea at any timebefore sentence is announced and that the military judge may, as a mattero discretion, permit me to do so.

e I request that the Convening Authority defer all adjudgedconfinement prior to action.

7 7 See United States v Olson, 5 M.J. 293, 297 n 5 (C.M.A. 1987) ( If the pretrial

agreement calls for restitution, the judge should determine what is the amount which theaccused must pay or how that amount is to be ascertained. ).

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5 I further understand that this agreement may be cancelled upon thehappening o any o the following events.

a Failure to agree with the trial counsel on the contents o thestipulation o fact;

b The withdrawal by either party from the agreement prior to trial;

c The changing o my plea by anyone during the trial from guilty tonot guilty; or,

d The refusal o the military judge to accept my plea o guilty.

Defense Counsel JAMES D JONESSPC USAAccused

The foregoing Offer to Plead Guilty is accepted) not accepted).

Date) Major GeneralCommanding



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United StatesV

SPC James D Jones 23 45 6789

A Co 1/504 PIRQ82d Airborne Division

In consideration for the promises made by the accused, SpecialistJames D. Jones, in his Offer to Plead Guilty, the Convening Authorityagrees to do the following:

a The request for deferment of all confinement is granted. The periodof deferment will run from the date the confinement is adjudged until thedate the Convening Authority acts on the sentence.

b The execution of all confinement and punitive discharge will besuspended. The period of suspension will end in twenty-four 24) monthsfrom the date of the sentence, at which time, unless sooner vacated, thesuspended portion will be remitted without further action.

c Forfeitures or fines may be approved as adjudged. Automaticforfeitures may be implemented in accordance with applicable law.

d Any other lawful punishments may be approved as adjudged.

JAMES D. JONESSPC USAAccused

The foregoing is accepted) not accepted).

Date) Major GeneralCommanding

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Model pretrial agreement for mental health care for veterans

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