2 M.J. 668 | U S Air Force Court of Military Review | 1976
DECISION UPON FURTHER REVIEW
Consonant with his plea, the accused was convicted of wrongfully possessing marijuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, and was sentenced to be discharged from the service with a bad conduct discharge, to be confined at hard labor for four months, to forfeit $125.00 per month for four months and to be reduced in grade to airman basic.
In our original decision in this case, dated 3 September 1975, we affirmed the findings of guilty and the sentence. On 6 February 1976, the United States Court of Military Appeals vacated our decision and remanded the record of trial to us with instructions to hold further proceedings in abeyance pending that Court’s disposition of the relevant issues in United States v. Courtney, United States v. Jackson and United States v. Graves.
In Courtney, the Court concluded that in the absence of an appropriate standard for use in determining whether to charge an offense under Article 134, Code, supra, instead of Article 92, the mere “existence of the two statutes which . . . punish virtually identical conduct in different ways . violates the Fifth Amendment.” Consequently, the Court held that the marijuana offense penalty should have been limited to that imposable for violating Article 92, rather than Article 134.
In Graves, the accused pleaded guilty to six alleged violations of Article 134 for which the maximum punishment included confinement at hard labor for sixty years whereas the same offenses charged as violations of Article 92 would have limited the maximum confinement to 12 years. The Court vacated the lower court’s decision and remanded the case for further consideration in light of the decisions in Courtney, supra, and United States v. Harden, 24 U.S.C.M.A. 76, 51 C.M.R. 249, 1 M.J. 258 (1976). The gist of the Harden decision was that the accused’s plea of guilty was improvident since it was predicated upon “a substantial misunderstanding” as to the maximum penalty imposable upon acceptance of his plea, 10 years confinement at hard labor as opposed to the 20 years confinement accepted as appropriate by the
Using this standard as a guideline, we are satisfied that the difference in punishment in the instant case, two years confinement at hard labor instead of five years, is not of such magnitude as to warrant vacating the accused’s plea of guilty as improvident. United States v. Harden, supra; cf. United States v. Hood, 8 U.S.C.M.A. 473, 24 C.M.R. 283 (1957). Further, in view of the accused’s undeniable guilt and the lenient sentence imposed, we perceive no possibility of prejudice. See Judge Ferguson’s opinion (concurring in the result) in United States v. Darusin, 20 U.S.C.M.A. 354, 43 C.M.R. 194 (1971).
We believe there is yet another legal principle that supports our conclusion that the accused’s plea in this instance was provident. This principle is discussed in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). There, the petitioner had been charged in 1959 with kidnapping, in violation of 18 U.S.C. § 1201(a), which statute then provided a maximum penalty of death “if the verdict of the jury shall so recommend.” At first, Brady had elected to plead not guilty although by pleading guilty and waiving a jury trial, he could have eliminated the possibility of a death penalty. However, upon learning that his codefendant had confessed, intended to plead guilty and would be available to testify against him, Brady changed his plea to guilty. His plea was accepted after the trial judge twice questioned him as to the voluntariness of his plea.
In 1967, Brady sought relief under 28 U.S.C. § 2255, claiming, inter alia, that his plea of guilty was not voluntary because the provisions of Section 1201(a) had operated to coerce it. He was denied relief in the District Court and the Court of Appeals. The Supreme Court then granted certiorari, “to consider the claim that the Court of Appeals was in error in not reaching a contrary result on the authority of this Court’s decision in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).”
In its affirmance of the lower court’s decision in Brady, the Supreme Court indicated that while the Jackson decision prohibited the imposition of a death penalty under § 1201(a), it “neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by courts and since reiterated that guilty pleas are valid if both ‘voluntary’ and ‘intelligent.’ ”
In reaching this conclusion, the Court reasoned:
*670 Often the decision to plead guilty is heavily influenced by the defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of secur-
Ibid at pages 756-757, 90 S.Ct. at page 1473.
In the instant case, at the time of the accused’s trial, the maximum penalty provided for his transgression, wrongful possession of marijuana in violation of Article 134, included confinement at hard labor of five years, as he was correctly advised by the military judge before he entered his plea of guilty. United States v. Walter, 20 U.S.C.M.A. 367, 43 C.M.R. 207 (1971); Manual for Courts-Martial, 1969 (Rev.), Table of Maximum Punishments, paragraph 127c, page 25-15. None of the parties to the trial could have anticipated that the Court of Military Appeals would later overturn its decision in United States v. Walter, supra, and hold that the maximum punishment for Article 134 violations must be limited to that imposable for the commission of “virtually identical conduct” under Article 92. Moreover, there is absolutely no hint of Government misrepresentation or other impermissible conduct in this case. Under these circumstances, we are of the opinion that the decision in Brady v. United States, supra, is dispositive of the issue before us.
We find, therefore, that the accused’s plea was not improvident. Implicit in this finding is our conclusion that the decisions in United States v. Graves, supra, and United States v. Courtney, supra, have only prospective application with respect to the providency of guilty pleas entered in the belief that the penalties provided for Article 134 violations were appropriate even though the same misconduct was prohibited under Article 92.
For the reasons stated, the findings of guilty and the sentence are
AFFIRMED.
. These three cases have since been decided: Courtney by decision, 1 M.J. 438 (1976); and Jackson and Graves by Order (2 July 1976), and (6 August 1976), respectively.
. See also United States v. Towns, 22 U.S.C.M.A. 600, 48 C.M.R. 224 (1974), and United States v. Windham, 15 U.S.C.M.A. 523, 36 C.M.R. 21 (1965), cited in United States v. Harden, supra.
. In Jackson, supra, the Supreme Court held that the provisions of Section 1201(a) were valid except for the death penalty provision which “imposes an impermissible burden upon the exercise of a constitutional right” since it permits “the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury.”
. Ibid, 397 U.S. at page 747, 90 S.Ct. at page 1468, citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).