11 C.M.A. 650 | United States Court of Military Appeals | 1960
Opinion of the Court
In a trial before a special court-martial, the accused entered a plea of guilty to an eight-day absence without authority, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. The president of the court gave the usual instructions on the legal effect of the plea and then informed the accused that he could be sentenced to the maximum punishment for the offense to which he pleaded guilty. The accused acknowledged that he understood the meaning and effect of his judicial confession and persisted in acknowledging his guilt. Thereafter the court-martial returned a finding of guilty and then proceeded to hear evidence touching on the suitability of punishment. Trial counsel offered in evidence extract portions of accused’s service record and thereby established that accused had been four times previously convicted by court-martial. After the parties had completed their presentation of evidence in extenuation, mitigation and aggravation, the president of the court gave the following instruction:
“PRES: I will now instruct the court on the maximum legal punishment. The maximum punishment which may be adjudged by a Special court-martial in any case is the maximum punishment for that type of court or the maximum total punishment for the separate offenses of which the accused is convicted, whichever is the lesser punishment. In this case the lesser punishment is the maximum limit for a Special court-martial.
“PRES: The maximum punishment which a Special court-martial may impose is a Bad Conduct Discharge, confinement at hard labor for six (6) months, forfeiture of two-thirds pay per month for six (6) months, and where the accused is not a private, reduction to the rank of private.”
It is to be noted that when he announced the maximum sentence which could be imposed, the president did not inform the accused of the increased penalty permitted by Section B of the Table of Maximum Punishments, paragraph 127e, Manual for Courts-Martial, United States, 1951, and again interrogate him about withdrawing or permitting his plea to stand. Thereafter, the court sentenced the accused to a bad-conduct discharge, confinement for six months and forfeitures of $70.00 per month for a like period. The officer exercising general court-martial jurisdiction reduced the confinement and forfeitures to a four-months period, but otherwise affirmed. On appeal to the board of review, the accused benefited further, for that tribunal held that the president of the court erred in not offering the accused an opportunity to withdraw his plea when the imposable penalty was increased because of the previous convictions. In order to cure the error found, the board further reduced accused’s sentence by eliminating the punitive discharge. Thereafter The Judge Advocate General of the Navy certified the record to this Court to determine the correctness of the board of review’s decision.
In the recent ease of United States v Zemartis, 10 USCMA 353, 27 CMR 427, a majority of the Court held that a president of a special court-martial erred when he failed to inform the accused that evidence of two or more previous offenses would subject him to a bad-conduct discharge and that, because of the increase in punishment, he was at liberty to withdraw his plea of guilty. While the Government seeks to differentiate the instant case from Zemartis, we believe they are sufficiently analogous to be governed by the same principle. Therefore, on the authority of that case, the certified question is answered favorably to the board of review’s ruling.
For the foregoing reasons, the decision of the board of review is affirmed.
