No. 38,126; CMR No. 791043/S | United States Court of Military Appeals | Oct 27, 1980
Lead Opinion
Opinion of the Court
At his trial by a military judge sitting alone as a special court-martial, the accused was convicted of an unauthorized absence. During the sentencing proceedings the judge received in evidence, without defense objection, a record of a prior nonjudicial punishment. A sentence was imposed of a bad-conduct discharge, confinement at hard labor for 2 months, and forfeiture of $279.00 pay per month for a like period. After approval below of this sentence, the United States Navy Court of Military Review-finding that Doran had been prejudiced by admission in evidence of a prior non judicial punishment-reassessed the sentence. After explaining that “[w]e cannot say that the judge would have imposed a bad-conduct discharge in the absence of the inadmissible evidence,” the Court of Military Review eliminated the punitive discharge from the sentence. 7 M.J. 1015" court="None" date_filed="1979-09-25" href="https://app.midpage.ai/document/united-states-v-doran-8643193?utm_source=webapp" opinion_id="8643193">7 M.J. 1015, 1018 (1979). In turn, the Judge Advocate General of the Navy certified to us this question:
WHETHER THE UNITED STATES NAVY COURT OF MILITARY RE*386 VIEW CORRECTLY CONCLUDED THAT PROSECUTION EXHIBIT 2 WAS INADMISSIBLE?
The questioned exhibit is a page from Doran’s service records. Also received in 'evidence was an accompanying page from the same service record. See Appendix A.
Appellate defense counsel maintains that for this Court to answer the certified question would constitute improper review by us of a determination by the Court of Military Review as to appropriateness of a sentence. We disagree. When reassessment of sentence by the Court of Military Review-or a refusal to reassess-is premised upon an error of law, then that error may be brought before this Court by petition or by certificate. In such an instance, we are simply freeing the Court below to exercise its sentence review powers without the restraints resulting from a misapprehension on a point of law.
Appellate defense counsel also argues that consideration of the certified issue is precluded because in doing so we would necessarily review the exercise of the fact-finding powers of the Court of Military Review. This argument assumes that the record of non judicial punishment was held inadmissible by the Court of Military Review, because it determined as a matter of fact that Doran had not “voluntarily and intelligently waived his statutory right of removal to trial in a criminal proceeding.” Id. at 1017. Once again we must disagree. In our view, instead of exercising its fact-finding powers, the Court of Military Review was ruling that, as a matter of law, this record of trial was insufficient to establish existence of a “waiver of removal,” id., that would comply with United States v. Booker, 5 M.J. 238" court="None" date_filed="1977-10-11" href="https://app.midpage.ai/document/united-states-v-booker-8642354?utm_source=webapp" opinion_id="8642354">5 M.J. 238 (C.M.A.1977).
In turn, on this question of law, we conclude that the record of nonjudicial punishment was adequate on its face to justify its reception in evidence. The case parallels United States v. Hayes, 9 M.J. 331" court="None" date_filed="1980-10-06" href="https://app.midpage.ai/document/united-states-v-hayes-8643418?utm_source=webapp" opinion_id="8643418">9 M.J. 331 (C.M.A.1980), where we upheld the admissibility of a similar Navy form used to record nonjudicial punishments. Here the case for admission is even stronger, since the advice concerning consultation with counsel makes clear that military counsel will be made available without expense to the accused.
Accordingly, we conclude that the military judge did not err in admitting prosecution exhibit 2, the record of nonjudicial punishment.
The decision of the United States Navy Court of Military Review is reversed as to sentence. The record of trial is remanded to the Judge Advocate General of the Navy for referral to the Court of Military Review for further review of the sentence.
. The form used in the case at bar did not specify where the accused could locate counsel. To facilitate access to counsel, it is desirable if the forms used for nonjudicial punishment contain a space for insertion of an address where ' counsel can be consulted. This information has been provided on many of the forms in the records of trial that we have recently reviewed.
Dissenting Opinion
(dissenting):
I must dissent, in accord with my opinions in United States v. Mack, 9 M.J. 300" court="None" date_filed="1980-10-06" href="https://app.midpage.ai/document/united-states-v-mack-8643414?utm_source=webapp" opinion_id="8643414">9 M.J. 300 (C.M.A.1980), and United States v. Hayes, 9 M.J. 331" court="None" date_filed="1980-10-06" href="https://app.midpage.ai/document/united-states-v-hayes-8643418?utm_source=webapp" opinion_id="8643418">9 M.J. 331 (C.M.A.1980); and the decision of this Court in United States v. Dukes, 5 M.J. 71" court="None" date_filed="1978-05-08" href="https://app.midpage.ai/document/united-states-v-dukes-8642319?utm_source=webapp" opinion_id="8642319">5 M.J. 71 (C.M.A.1978).