11 C.M.A. 64 | United States Court of Military Appeals | 1959
Lead Opinion
Opinion of the Court
Tried by general court-martial, the accused was convicted of five specifications of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, and sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years. The convening authority ordered a rehearing on the sentence in view of a command lecture delivered to court members regarding the adjudging of “puny sentences.”
Over the accused’s objection, the law officer instructed the court-martial concerning the penalty which it might impose as follows:
“. . . You are instructed that normally the maximum punishment authorized by the Table of Maximum Punishments for the offenses is a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for twenty-five years. However, in this case, in imposing punishment for the offenses for which the accused stands convicted, the court is limited to the sentence imposed by the court at the original trial, which is a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years. Therefore, the maximum punishment which you can impose in this case is a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years.”
The court sentenced the accused to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years. On review, the convening authority reduced that portion of the penalty relating to confinement to one year, ten months, and twenty-four days. He otherwise approved the sentence. The board of review assumed that the instruction on the maximum sentence was erroneous but asserted that it “was unquestionably rendered harmless by the reviewing authority’s action in reducing the confinement period adjudged to less than half.” We granted the accused’s petition for review on the issue whether the advice on sentence was prejudicially improper.
. . The members of the court are concerned only with the maximum imposable sentence and not the basis for the limitation it places upon them.”
Here, the maximum imposable sentence extended to dishonorable discharge, total forfeitures, and confinement at hard labor for five years — the punishment adjudged at accused’s first trial. Accordingly, the limitation contained in the Table of Maximum Punishments, Manual for Courts-Martial, 1951, paragraph 127c, was no longer relevant, and the court members should not have been informed of it. Moreover, the fact that the five-year limitation resulted from a previous court-martial sentence should not have been mentioned. The tendency of such advice is to cause the present court members to rely upon the discretion of a former court-martial concerning the appropriateness of the sentence. A proper instruction would have been simply that the maximum punishment was dishonorable discharge, total forfeitures, and confinement at hard labor for five years.
Left for consideration is the question whether other appellate authorities have by their actions on the sentence purged the erroneous advice of its prejudicial effect. At the outset, we note that rehearings on the sentence were deemed necessary in United States v Jones and United States v Skelton, both supra. In neither of those cases, however, were the members of the court advised of the correct maximum sentence, for no mention was made therein of the effect of the intermediate ameliorating action taken by the convening authority with respect to the penalties adjudged. Thus, the courts-martial in those cases were permitted to speculate beyond legally permissible bounds in determining an appropriate punishment. While the law officer herein erroneously advised the court of the penalty prescribed in the Table of Maximum Punishments, supra, as well as the fact that the actual maximum had been adjudged at a former trial, he nevertheless specifically informed the members of the correct limitation upon their power to punish. The effect of his misadvice, therefore, extends only to the possibility that the members were affected in their deliberations by the knowledge that another court-martial had adjudged a severe penalty or by the statement of what the legal maximum penalty would be, absent the original sentence. We are certain that the board of review’s recognition of the error, arguendo, and reassessment of the sentence in light of the substantial reduction by the convening authority was sufficient to remove any harm flowing from that contingency.
The decision of the board of review is affirmed.
The command lecture was apparently conceived and delivered by a commander inferior to the conving authority. When the matter was brought to his attention in the post-trial review, he immediately sought to overcome the error by ordering the rehearing on sentence. As the lecture dealt only with the subject of inadequate sentences, that remedy was adequate.
Concurrence Opinion
(concurring in the result) :
I concur in the result.
My views on certain aspects of this subject may be found in my dissenting opinions in United States v Dean, 7 USCMA 721, 23 CMR 185, and United States v Jones, 10 USCMA 532, 28 CMR 98. See also my separate opinion in United States v Skelton, 10 USCMA 622, 28 CMR 188. Here, however, my associates extend the rules therein announced, for this law officer instructed the court-martial in the language of the statute and he gave the correct maximum sentence. See Article 63(b), Uniform Code of Military Justice, 10 USC § 863. We are thus confronted with a situation where a majority of the Court hold it is error for a law officer to give a court-martial statutory guideposts to aid it in an area of responsibility. That is a questionable principle, and it will result in court-martial members wondering about the vagaries of a system which permits a maximum sentence for the same offenses to fluctuate from twenty-five
For the reasons above set out, I disagree that the law officer’s instructions on sentence at the rehearing in the case at bar were improper. While, as indicated, I believe that courts-martial should be fully advised on all aspects of the sentence and am convinced that better administration would result if they are informed of the true facts, my colleagues conclude otherwise. It is apparent, therefore, that, regardless of the reason for any limitation, court members should be charged in future cases merely on the maximum punishment they may adjudge.
In the case at bar, my brothers, for the reasons set out in their opinion, find that the board of review has purged the instruction of any possible prejudice. With that concept I agree. United States v Crusoe, 3 USCMA 793, 14 CMR 211; United States v Reiner, 8 USCMA 101, 23 CMR 325; United States v Peters, 8 USCMA 520, 25 CMR 24. See also United States v Reid, 10 USCMA 71, 27 CMR 145. Accordingly, I join them in affirming the decision of the board of review.