10 C.M.A. 120 | United States Court of Military Appeals | 1959
Lead Opinion
Opinion of the Court
The accused entered pleas of guilty to specifications alleging the forgery of cheeks in the amounts of $80, $175, and $350, respectively. He was sentenced to dishonorable .discharge, total forfeitures, and confinement at hard labor for five years. The convening authority reduced the period of confinement to three years but otherwise approved the findings and sentence. The board of review affirmed but further reduced the confinement to a period of eighteen months. We granted review to determine whether the instructions of the law officer on sentence were erroneous and materially prejudicial to the substantial rights of the accused.
The first assignment of error is predicated upon an instruction by the law officer which included the statement the court could not adjudge confinement for a period of more than six months
In its second assignment of error, the defense contends the law officer erred when he advised the court substantially in the language contained in subparagraphs 76a(2), (4), (5), and (6) of the Manual for Courts-Martial, United States, 1951. The instruction given is to all intents and purposes identical with the charge given by the law officer in United States v Mamaluy, 10 USCMA 102, 27 CMR 176, this day decided. We therein held that the instruction is erroneous but there was no material prejudice to the substantial rights of the accused. The case at bar follows generally that pattern, but we need not concern ourselves with a determination of prejudice in this instance. The board of review analyzed the instruction and while it did not specifically find an error of law, it questioned the instruction and assumed for the purpose of sentence that the law officer had erred. In independently assessing the appropriateness of sentence, it gave consideration to the error and reduced the sentence accordingly so that accused presently labors under a sentence of eighteen months’ confinement. We are certain the sentence as reduced by the board of review adequately purges any improper considerations the law officer may have injected into his instructions. In view of his plea of guilty, accused has no defense on the merits, and not only has the board of review reassessed the punishment in light of the error, but an eighteen-month sentence for offenses which would permit incarceration for fifteen years seems to us to make it unnecessary to return this record for further consideration on the sentence.
The decision of the board of review is affirmed.
Concurrence in Part
(concurring in part and dissenting in part) :
I dissent as to the disposition of the first assignment of error. As the principal opinion notes, the particular instruction given was held to be erroneous in the Varnadore and Holt cases,
Since the board of review purged any improper considerations the law officer may have injected into his instruction by independently assessing and reducing the sentence, I concur with the majority opinion as to the disposition of the second assignment of error.
Concurrence Opinion
(concurring):
I agree generally with the principal opinion’s discussion of Point I. In the Holt and Varnadore cases it clearly appeared the court members were confused as to their sentence powers. See also my dissent in United States v Cleckley, 8 USCMA 83, 86, 23 CMR 307. No such confusion appears here. Plence, the question is whether the erroneous instruction adversely influenced the court in its deliberations. Considering all the circumstances, including the number and the nature of the offenses, the maximum permissible punishment, and the actual sentence adjudged, I am convinced the error did not confuse or adversely influence the court-martial in its deliberation on the sentence. See United States v Cummins, 9 USCMA 669, 26 CMR 449.
I also agree with the conclusion that the harm resulting from the other erroneous instructions was eliminated by the board of review’s reassessment of the sentence.
