AFCCA on unconditional waiver of motions

United States v. Brown is a good reminder of waiver of motions in pretrial agreements.

The typical waiver is that the accused will “waive all waivable motions.”  This seems something of an oxymoron.  The provision is consistent with the idea that all nonjurisdictional motions are waived on a guilty plea unless there is a conditional waiver.  The court cites United States v. Bradley, 68 M.J. 279  (C.A.A.F. 2010)

This is an area potentially ripe for IAC in pretrial negotiations and advice.  In this case,

Originally, it appears that the defense counsel thought the motion for appointment of the expert consultant was not waived because the military judge had already ruled on the motion. To the contrary, the military judge opined that the “impact of this provision, even though I’ve already ruled on the motion, is that your client is waiving appellate consideration of the correctness of my decision.” The defense counsel then stated, “[F]or whatever reason, the defense decided not to ask for reconsideration of the motion, we waived any future motions and I believe that’s the position the defense is going to take.” The military judge went on to clarify the provision as he found that there was no clear meeting of the minds on the interpretation. The defense counsel then unequivocally stated on the record, with the appellant’s concurrence, “if a motion that’s already been made and ruled upon is then thereafter waivable, then we waive.” The military judge further clarified by stating, “So even if the provision applies to the motion that I denied, and it means that you are giving up appellate consideration of my ruling on that motion, you still want to go forward with your pretrial agreement?” The appellant responded, “Yes, sir.”

In this case the defense had litigated a motion which the judge denied.  Subsequently the accused signed a PTA and plead guilty.

There has been no allegation of ineffective assistance of counsel and the issue of the expert consultant was not even mentioned in post-trial submissions.

If the defense counsel was “originally” confused, was the meaning and effect of the term communicated?  Was the accused properly advised prior to the Article 39(a), UCMJ, hearing?