8 M.J. 666 | U.S. Army Court of Military Review | 1979
OPINION OF THE COURT
Pursuant to his pleas the appellant was convicted of one specification of aggravated assault by stabbing the victim in the back with a knife and thereby intentionally inflicting grievous bodily harm to wit: a punctured lung, in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928. A court with members sentenced him to the maximum punishment authorized, i. e., dishonorable discharge, forfeiture of all pay and allowances and confinement at hard labor for five years. The convening authority approved the sentence.
Prior to the charges being forwarded to the general court-martial convening authority, the appellant in a written offer waived his right to an Article 32 Investigation contingent upon the convening authority accepting the attached offer to plead guilty with the express proviso that the waiver is withdrawn if the offer was not accepted.
We have also considered the allegation that the approved sentence is excessive for the offense of which the appellant was convicted. Upon consideration of the entire record, we are convinced beyond a reasonable doubt that the sentence is appropriate.
The findings of guilty and the sentence are affirmed.
Judge O’DONNELL and Judge DRIB-BEN concur.
. Text of waiver reads:
I hereby specifically waive the Article 32 Investigation and Hearing in the above styled case. I have been fully advised by my defense counsel of my right to an Article 32 Investigation and its purposes and potential benefit to me. I have considered its purposes and the potential benefits I could derive from such an investigation into the circumstances surrounding the offenses currently alleged against me and I request that the investigation not be held and waive any right to such investigation at this time. This waiver is contingent upon your acceptance of the attached pretrial agreement in the above styled case and is withdrawn should you not accept my offer.
. The appellant is not attacking the adequacy of the military judge’s inquiry into the appellant’s understanding of the meaning and effect of the pretrial agreement. The military judge was aware of the waiver and although he was assured by the trial and defense counsel that the pretrial agreement encompassed all of the understandings between the parties, we are not certain that he was aware that the waiver was an integral part of the pretrial agreement. Under the circumstances the military judge cannot be faulted for the failure of the sub rosa agreement to be spread on the record. See United States v. Myles, 7 M.J. 132 (C.M.A.1979).
. United States v. Schmeltz, 1 M.J. 8 (C.M.A.1975); see also United States v. Troglin, 21 U.S.C.M.A. 183, 44 C.M.R. 237 (1972); United States v. Cummings, 17 U.S.C.M.A. 376, 38 C.M.R. 174 (1968).
. 2 M.J. 1014 (A.C.M.R.1976). This question undoubtedly would have been developed more fully had the judge not been misled by the assurances of both trial and defense counsel that the pretrial agreement encompassed all of the understandings of the parties.
. United States v. Cummings, supra note 3.