United States v. JohnsonUnited States v. Johnson
Lead Opinion
Opinion of the Court
On his plea of guilty, a general court-martial, convened at Quang Tri, Republic of Vietnam, convicted the accused of a number of specifications alleging various assaults upon fellow servicemen, in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928. The conviction was approved by the convening authority and affirmed by a board of review. Thereupon, the accused petitioned for further review by this Court.
In his first assignment of error, the accused contends that the conditions of his pretrial confinement were illegal because he was treated as a sentenced prisoner. United States v Nelson,
Allegations as to the existence of serious defects in the proceedings leading to the accused’s conviction and sentence cannot always be turned aside by the rule that the matter was not raised at trial and is before us only in the form of post-trial affidavits. United States v Ferguson,
It is manifest from the record, however, that the accused’s plea of guilty was not in any way influenced by the conditions of his pretrial confinement. The only question presented, therefore, is the possibility of prejudice as to the sentence. United States v Nelson, supra; United States v Broy, supra, at page 427. The accused contends he was in undifferentiated confinement from September 5 to September 21. However, the Charge Sheet indicates his confinement for the September period began on September 18. At trial, the accused certified the correctness of the Charge Sheet entry; and the entry is further verified in the post-trial review by the staff legal officer. Consequently, the period of alleged improper confinement is three days, not nearly three weeks as alleged by the accused. It further appears that the offenses to which the accused pleaded guilty subjected him to a penalty extending to dishonorable discharge and confinement at hard labor for 19-1/2 years. The court-martial imposed a sentence that included a bad-conduct discharge and confinement at hard labor for five years. This sentence accords with the accused’s own assessment of what he considered a fair and acceptable sentence, as expressed in his 'pretrial offer to plead guilty which was made after September 21. Under the circumstances, we conclude that while the conditions of confinement would have been illegal, if they were as represented in the defense affidavits, they did not prejudice the accused as to either the findings of guilty or the sentence. Cf. United States v Nelson, and United States v Broy, both supra.
The accused’s second assignment of error deals with the sufficiency of the law officer’s inquiry into the accused’s
The decision of the board of review is affirmed.
Concurrence Opinion
(concurring):
I concur in the affirmance of the board of review’s decision. I disapprove, however, the unrestricted use of affidavits to contest on appeal the adequacy of a guilty plea case because of an alleged defect that was known or should have been known at the time of trial. Where a defense is available, it should be asserted and decided initially at the trial level. Cf. United States v Roberts,