6 M.J. 573 | U.S. Army Court of Military Review | 1978
OPINION OF THE COURT
Consonant with his plea appellant was convicted of wrongful transfer of heroin and wrongful possession of heroin, both in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (hereinafter UCMJ), and possession of lysergic acid diethylamide (LSD), in violation of Article 92, UCMJ, 10 U.S.C. § 892. He was sentenced to a dishonorable discharge, confinement for five years, total forfeitures, and reduction to E-l. The convening authority, pursuant to the terms of a pretrial agreement, approved only so much of the sentence as provided for a dishonorable discharge, confinement at hard labor for 40 months, total forfeitures, and reduction to E-l.
The appellant has assigned a number of errors which we will consider seriatim.
I
[I] Appellant contends that even though the 15 January 1977 change to Army Regulation 600-50
We are convinced that both the appellant and Johnson were properly charged with violations of Article 134, UCMJ. United States v. Hoesing, 5 M.J. 355 (C.M.A.1978). Moreover, we are not bound by any erroneous ruling of the trial court, in the unrelated Johnson case, in order to sustain appellant’s conviction. Furthermore, we believe that it is likely that any confusion regard
II
Appellant next claims that he was denied equal protection of the law because of the failure of the several branches of the armed forces to standardize their method of charging similar drug offenders. This assignment of error has also been resolved by the Court of Military Appeals’ decision in United States v. Hoesing, 5 M.J. 355 (C.M.A.1978). Moreover, while the appellant claims that the providency inquiry was defective, because of a substantial misunderstanding as to the maximum period of confinement, we note that the appellant indicated a willingness to plead guilty even had the maximum confinement time been set at two years. This pronouncement by the appellant renders moot any error connected with his misunderstanding of the maximum period of confinement and its effect on his plea. United States v. Frangoules, 1 M.J. 467 (C.M.A.1976).
III
Appellant contends that his plea was improvident because the military judge failed to ask the counsel if their understanding of the terms of the agreement comported with his understanding and because of the military judge’s failure to query him concerning the provision of the pretrial agreement which required him to enter into a stipulation of fact.
Our review of the providency inquiry leads us to the conclusion that the mandates of United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969); United States v. King, 3 M.J. 458 (C.M.A.1977); and United States v. Green, 1 M.J. 453 (C.M.A.1976), were met in the instant case. The failure of the military judge to specifically ask the comportment question has been addressed by this Court and found to be without merit where the inquiry is complete in all other aspects. United States v. Milum, 5 M.J. 672 (A.C.M.R.1978). Based on the thorough inquiry in the instant case, we see no reason why we should not adhere to the above-cited precedent. (The stipulation question will be addressed below.)
IV
Appellant next contends that his plea of guilty was improvident because it was entered into pursuant to a pretrial agreement containing an illegal collateral condition. That condition stated that the agreement would be rendered void if the appellant changed his plea at a rehearing ordered by the convening or higher authority. This specific provision was the subject of review by this Court in United States v. Stoutmire, 5 M.J. 724 (A.C.M.R.1978). We are of the opinion that that case presents a proper disposition of this error.
V
In this assignment of error, the appellant contends that the so-called “misconduct provision” was also an illegal collateral condition which was void as contrary to public policy. Appellant submits that inclusion of this provision rendered his guilty plea improvident. Suffice it to say the legality of this type of provision as a condition of the pretrial agreement has been upheld by this Court. United States v. Alvarez, 5 M.J. 762 (A.C.M.R.1978); see also United States v. French, 5 M.J. 655 (N.C.M.R.1978); United States v. Rankin, 3 M.J. 1043, 1044 (N.C.M.R.1977).
VI, VII & VIII
Each of these three assignments of error relates to the stipulation of fact. Appellant first contends that his plea is improvident because it was entered into pursuant to a pretrial agreement containing an illegal collateral condition, to enter into a stipulation of fact. Appellant argues that
The appellant’s second contention is that the military judge should have sua sponte instructed the court on the incidents of uncharged misconduct alluded to in the stipulation.
The requirement that an accused enter into a stipulation of fact, as a condition of the pretrial agreement, has stood prior judicial review. United States v. Onan, 5 M.J. 514 (A.C.M.R.1978). Moreover, while the inquiry necessary to establish the accused’s understanding of the effect, the use of, and his assent to, a stipulation of fact has not been specifically set out by any judicial authority, we believe that the military judge need only satisfy himself that the accused understands the nature of the stipulation, its effect and that the accused assents thereto. Paragraph 154b, Manual for Courts-Martial, United States, 1969 (Revised edition). See also United States v. Onan, supra; United States v. Bertelson, 3 M.J. 314 (C.M.A.1977). We feel that the military judge in the instant case satisfied these requirements.
We next consider the question whether the military judge was obligated to sua sponte instruct the court on the incidents of uncharged misconduct contained in the stipulation of fact. While, the military judge is required to give such sua sponte instructions during the findings phase of the trial
IX
This error challenges the adequacy of the inquiry mandated by United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). Appellant argues that the military judge did not adequately discuss the “prejudice to the good order and discipline” element of the Article 134 offenses. We believe this matter to have been properly resolved by this Court’s holding in United States v. Arrington, 5 M.J. 756 (A.C.M.R. 1978). We find that the military judge’s inquiry satisfied the Care mandate.
X
In appellant’s last assignment of error, he alleges that he was improperly removed from the situs of his trial. Appellant con
We deem this error to be without merit in view of the Court of Military Appeals’ disposition of United States v. Vick, 4 M.J. 235 (C.M.A.1978).
The findings of guilty and the sentence are affirmed.
. Standards of Conduct for Department of the Army Personnel, April 1973. This change to the regulation was discussed in United States v. Dillard, 4 M.J. 577 (A.C.M.R.1977) aff’d, 5 M.J. 355 (C.M.A.1978).
. See United States v. Zenor, 1 M.J. 918 (N.C. M.R.1976) aff'd, 3 M.J. 186 (C.M.A.1977). This case addresses the cocaine classification question.
. The stipulation of fact contains two references to uncharged drug related conduct.
. United States v. Grunden, 2 M.J. 116 (C.M.A. 1977).