24 M.J. 525 | U S Air Force Court of Military Review | 1987
DECISION
The appellant was found guilty pursuant to his pleas of three drug-related specifications involving marijuana and cocaine. The maximum punishment imposable consisted of dishonorable discharge, confinement for nine years, forfeiture of all pay and allowances and reduction to airman basic. By virtue of a pretrial agreement the appellant could receive no punitive discharge worse than a bad conduct discharge nor confinement in excess of 13 months. He was sentenced by the military judge, sitting alone, to a bad conduct discharge, confine
While we affirm the findings and sentence, it is appropriate that we comment concerning the scope of the military judge’s questioning during the providence inquiry. United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). Having been advised that the appellant had entered into a pretrial agreement with the convening authority, the military judge queried him as to his understanding of its provisions. United States v. Green, 1 M.J. 453 (C.M.A.1976). The military judge did not attempt to examine the terms of the sentence limitation in the appendix to the accepted offer of agreement. He did, however, query the appellant as to his understanding of the limitation in sufficient detail to elicit the following information: (1) the limitation included a provision relating to punitive discharge; (2) the limitation included a provision relating to confinement; (3) the limitation included no provision precluding the convening authority’s disapproval of a punitive discharge and substituting therefor an increase in the amount of confinement adjudged; (4) the limitation had no provision relating to forfeiture; and, (5) while not entirely clear from the exchange between the military judge and the appellant, the limitation probably had no provision relating to reduction in grade. The military judge did not state a reason for this type of inquiry, and we are unable to determine whether there was a reason for it from our review of the record. The trial defense counsel did not object to the inquiry.
In United States v. Green, supra., which established the pretrial agreement inquiry requirement, the Court noted: “Inquiry into the actual sentence limitations specified in the plea bargain should be delayed until after announcing sentence where the accused elects to be sentenced by the military judge rather than a court with members.” 1 M.J. at 456. This policy has been adopted by the Manual for Courts-Martial in the following terms:
If a plea agreement exists, the military judge shall require disclosure of the entire agreement before a plea is accepted, provided that in trial before military judge alone the military judge ordinarily shall not examine any sentence limitation contained in the agreement until after the sentence of the court-martial has been announced.
R.C.M. 910(f)(3). This guidance has similarly been adopted in Department of Army Pamphlet 27-9, Military Judges’ Bench-book, para. 2-14, note (Change 1,15 February 1985).
United States v. Green, and cases decided since have encouraged comprehensive inquiries by military judges to insure complete understanding by accuseds of the terms of pretrial agreements. In this case the military judge’s inquiry went too far. In attempting to insure that the appellant understood the nature of his sentence limitation, he acquired more knowledge than he either needed to know or should have known prior to imposing sentence. As Green suggested, the premature receipt of such information by a military judge, sitting alone, may adversely affect “the perceived fairness of the sentencing process.” 1 M.J. at 455. While it is desirable for a military judge to inquire whether the appendix to a pretrial agreement is understood by the appellant and other parties to the trial and whether it contains conditions other than as relate to sentence, an appropriate inquiry need not delve into the nature of the sentence limitation itself. See generally, United States v. Walters, 5 M.J. 829 (A.C.M.R. 1978), aff'd, 8 M.J. 95 (1979).
Appellate government counsel correctly points out that R.C.M. 910(f)(3), by use of the term, “ordinarily,” does not state an absolute prohibition against an inquiry into the nature of a sentence limitation in a case such as this. Additionally, counsel surmises that some matter not apparent from the record of trial, such as the appellant’s displaying a perplexed demean- or, might have prompted the military
While trial defense counsel in this instance did not object to the inquiry or subsequently pose a challenge to the military judge’s continuing to sit, our reading of R.C.M. 902, in its entirety, causes us to conclude that counsel’s silence was not a waiver of possible error. However, the appellant was not prejudiced by the inquiry in any event. The adjudged sentence was below the maximum provided for by the sentence limitation terms of the pretrial agreement. See United States v. Crawford, 11 M.J. 336 (C.M.A. 1981).
We have examined the record of trial, appellant’s brief on specified issues and the government’s reply thereto and have concluded that the findings and sentence are correct in law and fact and that no error prejudicial to the substantial rights of the accused was committed. Accordingly, the findings of guilty and the sentence are
AFFIRMED.