11 M.J. 122 | United States Court of Military Appeals | 1981
Lead Opinion
Opinion of the Court
Contrary to his pleas, a general court-martial with members convicted the appellant of attempted murder, wrongful possession of a firearm, and assault with a dangerous weapon, in violation of Articles 80, 92 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 892 and 928, respectively. He was sentenced to a dishonorable discharge, confinement at hard labor for 12 years, total forfeitures, and reduction to pay grade E-l. The convening authority approved the findings and sentence. A majority of the United States Navy Court of Military Review held that the military judge had instructed the members on sentencing in a manner inconsistent with the provisions of paragraph 76b (1), Manual for Courts-Martial, United States, 1969 (Revised edition), by advising them of the maximum imposable punishment for each offense. However, the court further held that the appellant had not been prejudiced. 8 M.J. 865 (1980). One judge concurred in the result, noting his disagreement with the majority’s interpretation of the Manual provision. The Judge Advocate General of the Navy has certified an issue to this Court which questions the correctness of the majority’s interpretation of that provision. 9 M.J. 35 (1980).
Absent a contrary decision by this Court, a determination of a rule of law by a service Court of Military Review is controlling authority for all courts-martial in that service. Thus, the instructional rule declared by the court in this case will govern all future trials in the Navy. We have considered the probable future impact on
Paragraph 76b (1) contains the following language:
The maximum punishment will be the lowest of the following: the total permitted by 127c for the offenses of which the accused stands convicted, or the jurisdictional limit of the court-martial (see Art. 19), or, in a rehearing or new or other trial of the case, the maximum authorized pursuant to 81d or 110a (2). A court-martial must not be advised of the basis for the sentence limitation or of any sentence which might be imposed for the offense if not limited as set forth above.
Apparently the majority below interpreted the word “total” as precluding any reference to individual offenses where multiple offenses are before the trial court. We disagree.
Under military practice, one sentence is imposed for all offenses before the court. See United States v. Castrillon-Moreno, 7 M.J. 414, 416, 418 (C.M.A.1979) (Cook, J., dissenting). The military judge in the present case did instruct the members on the total maximum imposable punishment and only one sentence was imposed. The quoted language was not contained in the 1951 Manual for Courts-Martial,
In United States v. Jones, 10 U.S.C.M.A. 532, 28 C.M.R. 98 (1959), the Court held that during a rehearing the members should not be told that the maximum penalty had been reduced on review, or about the basis of the limitation placed on the maximum sentence resulting from the original hearing. We held the Jones admonition was applicable in United States v. Eschmann, 11 U.S.C.M.A. 64, 66, 28 C.M.R. 288, 290 (1959), where the members were advised of the maximum imposable punishment “normally ... authorized by the Table of Maximum Punishments,” although they were further instructed that the sentence was limited by the sentence imposed as a result of the original trial. We held the advice would
*123 cause the present court members to rely upon the discretion of a former court-martial concerning the appropriateness of the sentence.
We answer in the negative the certified question and affirm the findings and sentence approved by the United States Navy Court of Military Review.
. Manual for Courts-Martial, United States, 1951.
. Para. 127c, Manual for Courts-Martial, United States, 1969 (Revised edition).
. See generally para. 8-3.
. The sentence limitation for each offense provided in the Table of Maximum Punishments is authorized by Article 56, UCMJ, 10 U.S.C. § 856:
The punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense.
See para. 14b, Manual for Courts-Martial, United States, 1969 (Revised edition); see also Article 18, UCMJ, 10 U.S.C. § 818.
Concurrence Opinion
(concurring in the result).
Since the defense made no objections, I find no error by the military judge in giving the instructions concerning the maximum punishment for each of the several offenses of which appellant was convicted. However, if there had been an objection, I would find error in furnishing such advice — although in a case like this, where the maximum punishment is not limited because of the jurisdiction of the court or because a rehearing is involved, I would be hard pressed to find prejudice.
Unlike its 1951 predecessor, the 1969 Manual for Courts-Martial states that:
The maximum punishment will be the lowest of the following: the total permitted by 127c for the offenses of which the accused stands convicted, or the jurisdictional limit of the court-martial (see Article 19), or, in a rehearing or new or other trial of the case, the maximum authorized pursuant to 81d or 110a(2). A court-martial must not be advised of the basis for the sentence limitation or of any sentence which might be imposed for the offense if not limited as set forth above.
Para. 76b (1), Manual for Courts-Martial, United States, 1969 (Revised edition). Because each of the punitive articles of the Uniform Code of Military Justice prescribes that transgressors “shall be punished as a court-martial may direct,”
However, my basic difficulty with the instruction as to the maximum punishment for each separate offense is that it runs counter to the theory of the “unitary sentence,” which has been part of military law since the enactment of the Uniform Code, see United States v. Keith, 1 U.S.C.M.A. 442, 4 C.M.R. 34 (1952), and for decades prior to that time. The court members are required to pronounce a single sentence, see para. 76e, Manual, supra. As the Court of Military Review wisely recognized, advice to the court members about the maximum punishments for the separate offenses tends to confuse them and divert them from that objective. Moreover, in the not infrequent situation where, for purposes of sentencing, there is multiplicity of the charges, it will be difficult to advise as to the maximum punishment for each offense without launching upon a detailed discussion of multiplicity as a limitation on the maximum sentence imposable. And under the rationale of the cases cited in footnote 3, supra, this itself might well be error. Also, there are possibilities of confusion when the punishment for one offense includes a dishonorable discharge and that for another extends only to a bad-conduct discharge. While court-martial members should not languish in ignorance, they should also be shielded from information which could well tend to confuse or mislead them.
. See Articles 78, 80-133, Uniform Code of Military Justice, 10 U.S.C. §§ 878, 880-933. Cf. Article 134, UCMJ, 10 U.S.C. § 934.
. It appears that the sentence in the quoted portion of paragraph 76b (1) barring instructional reference to sentence limitations had its genesis in a series of decisions by this Court between 1951 and 1969, holding that instructing or advising members of the method for determining the maximum sentence which could be awarded at a special court-martial or at a rehearing is improper. See United States v. Whitacre, 12 U.S.C.M.A. 345, 30 C.M.R. 345 (1961); United States v. Witherspoon, 12 U.S. C.M.A. 177, 30 C.M.R. 177 (1961); United States v. Pace, 11 U.S.C.M.A. 482, 29 C.M.R. 298 (1960); United States v. Jones, 10 U.S.C. M.A. 532, 28 C.M.R. 98 (1959). Nonetheless, the impact of the remedial language may be greater than the ill which it was intended to address.