20 C.M.A. 354 | United States Court of Military Appeals | 1971
Lead Opinion
Opinion of the Court
At a trial before a military judge sitting without court members, the accused entered a plea of guilty to a charge of unauthorized absence and not guilty to other offenses. He was acquitted of the latter but found guilty of the unauthorized absence and sentenced to confinement at hard labor for five months, a bad-conduct discharge, and accessory penalties. On review, error in the proceedings led the convening authority to set aside the findings of guilty and the sentence and to order a rehearing of the absence charge. At the rehearing, the accused again entered a plea of guilty to unauthorized absence. During the inquiry into his understanding of the meaning and effect of a plea of guilty, the following question was asked, without objection, and the accused answered as indicated:
“MJ: Do you understand that, if I find you guilty then I can proceed and sentence you to the maximum punishment authorized for this court for this offense under these circumstances which is: reduction to the grade of pay grade E-l, total forfeiture of pay and allowances, confinement at hard labor for five months, discharge from the service with a bad conduct discharge and if I do not award a discharge, confinement at hard labor for one year? Do you understand that?
“ACC: Yes, sir.”
No other mention was made of the maximum punishment. During the sentence proceedings, the accused expressed his desire to remain in the Navy because he wanted to show people he was “very proud” of his military service and he wanted his child “to be proud” of him. Trial counsel argued for imposition of a bad-conduct discharge as appropriate punishment for the offense. The judge sentenced the accused to a bad-conduct discharge, confinement at hard labor for five months with credit for previous confinement, and accessory penalties of the same kind imposed at the first trial.
This Court has held that material misadvice as to the maximum punishment to which he may be subject can so mislead the accused as to render improvident a plea of guilty predicated thereon. United States v Turner, 18 USCMA 55, 39 CMR 55 (1968); United States v Zemartis, 10 USCMA 353, 27 CMR 427 (1959). Whether these cases retain their vitality in view of Brady v United States, 397 US 742, 25 L Ed 2d 747, 90 S Ct 1463 (1970), need not detain us; we assume that they do, and directly consider whether the trial judge misstated the punishment which could be imposed upon the accused.
With exceptions not applicable here, Article 63(b), Uniform Code of Military Justice, 10 USC § 863, provides that at a rehearing “no sentence in excess of or more severe than the original sentence may be imposed.” See
In the Smith case, the accused was sentenced at his first trial to a bad-conduct discharge and reduction in grade. At a rehearing, the court members were instructed that “ ‘in lieu of the punitive discharge’ ” they could adjudge, among other punishments, confinement at hard labor, if the substituted punishment was “ ‘of a lesser degree of severity than a bad conduct discharge.’ ” We determined that the instructions were “substantially proper.” Id., at page 596. In Brousseau, supra, at page 626, we concluded that the instructions were improper because they did not allow the court members to “take into consideration the possible substitution of other punishments for the previously adjudged bad-conduct discharge, confinement and reduction.”
It is apparent that here the trial judge concluded that confinement for seven months could properly be substituted for the previously adjudged bad-conduct discharge, with the result that, as an alternative to the combination of a bad-conduct discharge and confinement for five months provided in the original sentence, the accused could be sentenced to confinement for one year.
The variety of factors bearing upon the relative severity of a punitive discharge and other punishments has tended to discourage the establishment of a fixed table of substitutions. See United States v Johnson, supra. We have, however, identified certain standards of comparison. In Jones v Ignatius, 18 USCMA 7, 9, 39 CMR 7 (1968), we determined that the period of confinement substituted for a punitive discharge could not be “used to increase the remaining punishment beyond that allowed by law.” Cf. Williams v Illinois, 399 US 235, 26 L Ed 2d 586, 90 S Ct 2018 (1970). As regards particular periods of confinement, we have held that the substitution of confinement at hard labor for six months in place of a punitive discharge did not increase the severity of the sentence. United States v Brown supra. In United States v Johnson, supra, we invalidated substitution by the convening authority of a bad-conduct discharge for the part of a sentence adjudged by the court-martial providing for confinement at hard labor for one year on the ground that such action violated a statutory prohibition against punitive separation from the service except by sentence of a court-martial. Inferentially, our opinion supports the view that a reverse substitution, that is, replacement of an adjudged punitive discharge with confinement at hard labor for one year, would not increase the severity of the sentence. An Air Force appellate tribunal has so construed Johnson. United States v Owens, 36 CMR 909 (AFBR 1966).
As noted earlier, the substitution in this case is seven months confinement for a bad-conduct discharge. Measured by the standard recognized in Owens, the substitution is legal. For purposes of this appeal, however, we need not decide the correctness of the Owens decision, or consider the implications of United States v Johnson, supra. United States v Brown, supra, specifically approved substitution of ■confinement for six months in place of a bad-conduct discharge. Thus, the most that can be said in support of
The decision of the United States Navy Court of Military Review is affirmed.
Concurrence Opinion
(concurring in the result):
I concur in the result.
I believe that the military judge was in error when he informed the accused that it was within his power to sentence the accused to hard labor for one year in the event he did not award a bad-conduct discharge. Cf. United States v Brown, 13 USCMA 333, 32 CMR 333 (1962). However, since under the particular circumstances of this case, I do not believe that the accused was prejudiced by the erroneous statement, I concur in the result reached by my brothers.