OPINION OF THE COURT
On the recommendation of the trial counsel in this case, the convening authority accepted appellant’s offer to рlead guilty in return for a specified limitation on the sentence to be approved. During the ensuing sentencing proceedings before a military judge, the trial counsel argued for imposition of a particular sentence which exceeded the limits agreed to by the convening authority. His argument for a specific sentence was objected to at the trial and the propriety of his argumеnt has been made an issue on this appeal.
The Manual for Courts-Martial provides that, “[ajfter introduction of matters relating to thе sentence, counsel for each side may make argument for an appropriate sentence.” Manual for Courts-Martiаl, United States, 1969 (Revised edition), par. 75/. These provisions reflect an earlier holding of the Court of Military Appeals to the effect that a trial counsel may argue as to the quantum of the sentence to be adjudged so long as it is not implied that such is the sentencе desired by the convening authority. United States v. Olson,
We regard a trial counsel’s argument for an appropriate sentence which happens to exceed the limit agreed to by the convening authority in negotiations for a plea of guilty as being permissible. The defense counsel in such cases is free to argue for a lesser sentence. United States v. Wood,
The sentence of a court-martial, whether imposed by the military judge or by court members, is tо be arrived at after consideration of all the facts and circumstances involved in the case, including in particular the circumstances indicated at the trial as extenuating, mitigating, or aggravating the offense. See Manual for Courts-Martial, supra, par. 76a(2). On the other hand, additional factors mаy have led a convening authority to accept an accused’s proposed sentence in return for a plea of guilty to some or all of the offenses charged and some of these may differ factually from the sentence matters presented at the trial. United States v. Villa,
Whether sentence is imposed by the judge alone or by the court members, the determination is not on the basis of the limits provided in the agreement, but [the maximum] as provided by law. The judge or court members, as the case may be, can impоse a more severe sentence than provided by the agreement or a more lenient sentence. As far as the trial is cоncerned, therefore, the Government can, as it did here, disregard the agreement and require the court members to determine thе sentence on the basis of the maximum penalty prescribed by law. The accused can disregard the agreement by trying to convince the judge or court members that he is worthy of greater leniency.
United States v. Wood, 23 U.S.C.M.A. 57, 61-62,
Accordingly, we hold that it is not error for the trial counsel, in arguing for аn appropriate sentence as permitted by paragraph 75/ of the Manual for Courts-Martial, to argue for a sentence that may exceed in some or all respects a sentence limitation agreed to by the convening authority in a plea bargain with the accused.
Notes
. The charges were unauthorized absence (two specifications) and a related charge оf willfully disobeying an officer’s order. In consideration of the pleas of guilty, the convening authority agreed to approve no sentence greater than a reduction to the lowest enlisted grade and a bad-conduct discharge with confinement at hard labor for sixty days and forfeiture of two-thirds pay per month for two months. The military judge properly inquired into the conditions of the plea bargаin and avoided ascertaining the agreed quantum. In a statement for his client in extenuation and mitigation, the defense counsel deрicted his client as being resigned to a discharge, but as desiring no further confinement beyond that served pretrial. The trial counsel, aftеr interruption by an objection, was permitted to argue that, “[i]n addition to a bad conduct discharge, the government would assert that fоrfeitures of two-thirds pay for four months, confinement at hard labor for 120 days and reduction to E-l are warranted.” As can be seen, the рeriods of confinement and forfeitures that he argued were appropriate were twice those which the convening аuthority had agreed to approve.
. United States v. Razor,
. For several reasons; military sentencing proceedings differ markedly from those employed in the сivilian criminal courts, which accounts for some difference in the roles of counsel and the judge as well. See, e. g., United States v. Konarski,
. While nоt determinative of the result we reach, we note that military prosecutors may find themselves prosecuting several similar cases before the same court members. Limiting the prosecutor’s sentence argument in cases involving a negotiated plea of guilty could not only generate some confusion in the minds of the court members, but would soon lead them to perceive the existence of a plea bargain, and possibly its terms. Cf. United States v. Montes,