United States v. Brewster

7 M.J. 450, 1979 CMA LEXIS 8920

• Court: United States Court of Military Appeals
• Decided: October 22, 1979
• Docket: No. 34,645; CM 434221
• Status: Published

Opinions

FLETCHER, Chief Judge:

In accordance with his pleas, the appellant was found guilty of possession and sale of heroin, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced by his general court-martial to a bad-conduct discharge, confinement at hard labor for 18 months, total forfeitures and reduction to the lowest enlisted grade. The convening authority reduced the confinement to a period of 6 months and suspended the bad-conduct discharge with provision for its automatic remission, but otherwise approved the findings of guilty and the sentence. The United States Army Court of Military Review affirmed the findings of guilty and this sentence.

The military judge, prior to accepting appellant’s guilty pleas, advised him, with the concurrence of defense counsel, that the maximum authorized punishment would include confinement at hard labor for 20 years. At the Army Court of Military Review for the first time these offenses were alleged by the appellant to be multiplicious for sentencing and were so found by that Court. The correct sentencing advice was 10 years’ confinement at hard labor. The military judge substantially misadvised the appellant as to the consequences of his pleas. See United States v. Harden, 1 M.J. 258 (C.M.A.1976). This situation is materially different from that described in United States v. Hedlund, 7 M.J. 271 (C.M.A.1979). The appellant’s pleas of guilty were improvident. See United States v. Castrillon-Moreno, 7 M.J. 414 (C.M.A.1979).

The decision of the United States Army Court of Military Review is reversed; the findings of guilty arid the sentence are set aside. The appellant’s guilty pleas are vacated. A rehearing may be ordered.

Judge PERRY * concurs.