"Especially Troubling" Fine

The appellant was sentenced to a dismissal, confinement for 1 year, total forfeitures, and a fine of $10,000 after pleading guilty to two specifications of attempting to persuade or entice minors under the age of 16 to engage in sexual activity. The appellant claimed the fine was inappropriately severe in light of the total forfeitures, and violated the “Excessive Fines” clause of the Eighth Amendment to the Constitution. The NMCCA disagreed but granted relief anyway. It disapproved the fine.

The military judge advised the appellant that he could be sentenced to forfeitures and a fine, but his PTA just said that the convening authority could approve forfeitures or a fine as adjudged. The NMCCA concluded that this creates a “clear ambiguity" as to whether the convening authority was authorized to approve both forfeitures and a fine. The court goes on to say that the judge was required to get the accused to acknowledge that his financial liability could exceed total forfeitures. The NMCCA finds this “especially troubling” because of the ambiguity in the PTA. Despite how troubling this all is to the court, they find it does not make his plea involuntary.

Had the accused claimed he misunderstood or was misled, I might be sympathetic. But the accused never claimed that he misunderstood or was misled as to the maximum punishment. So how and to whom is it ambiguous. And in light of his confinement he was going to forfeit all of his pay and allowances by statute. I just don’t see the logic of this opinion.

United States v. Norman, NMCCA 200700042 (N.M.C.C.A. Aug. 8, 2007).