United States v. Dill

2 M.J. 271, 1976 CMR LEXIS 762
CourtU S Air Force Court of Military Review
DecidedAugust 17, 1976
DocketACM 22058
StatusPublished
Cited by3 cases

This text of 2 M.J. 271 (United States v. Dill) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dill, 2 M.J. 271, 1976 CMR LEXIS 762 (usafctmilrev 1976).

Opinion

DECISION

ORSER, Judge:

Tried by a general court-martial composed only of a military judge, the accused was convicted, pursuant to his pleas, of three specifications involving solicitation and acceptance of moneys from basic trainee members of the United States Air Force, and contrary to his plea, of one specification of extortion, in violation of paragraphs 3a(l) and 3b(l), Air Force Military Training Center Regulation 30-2, 28 February 1973, and Articles 92 and 127, 10 U.S.C. §§ 892, 927, of the Uniform Code of Military Justice. The approved sentence provides for a bad conduct discharge, confinement at hard labor for 12 months, a fine of $4,000.00, and reduction to the grade of airman basic.

Four errors have been assigned on the accused’s behalf in his request for appellate representation. Appellate defense counsel, besides elaborating on one of those, having assigned another claim of error for our consideration. Only the latter assignment warrants our attention. All other urged errors are either without merit or were discussed by the staff judge advocate in his review and properly resolved adversely to the accused.

In the remaining assignment of error, appellate defense counsel contend the accused’s plea of guilty was improvident because the military judge did not advise him that the maximum authorized punishment included a fine. We disagree.

To pass the test for providency, a plea of guilty must demonstrably be voluntary: It must be free, knowing and intelligently entered by the accused. United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969); United States v. Zemartis, 10 U.S.C.M.A. 353, 27 C.M.R. 427 (1959); United States v. Butler 9 U.S.C.M.A. 618, 26 C.M.R. 398 (1958). To insure that the guilty plea is truly voluntary, the military judge, before accepting it, is required to thoroughly explain to the accused the meaning and effect thereof, including advice as to the maximum authorized punishment which may be imposed upon conviction of the offenses to which the plea relates. Manual for Courts-Martial, 1969 (Rev.), paragraph 705; United States v. Turner, 18 U.S.C.M.A. 55, 39 C.M.R. 55 (1968); United States v. Zemartis and United States v. Care, both supra. As to the latter aspect, the United States Court of Military Appeals has repeatedly held that a substantial misunderstanding on the accused’s part generated by “material misadvice” as to the maximum punishment to which he is subject may of itself render his plea improvident. United States v. Darusin, 20 U.S.C.M.A. 354, 43 C.M.R. 194 (1971); United States v. Windham, 15 U.S.C.M.A. 523, 36 C.M.R. 21 (1965); United States v. Turner and United States v. Zemartis, both supra.

In the case at hand, during the military judge’s inquiry into the providence of the accused’s plea of guilty to the three offenses involving soliciting and accepting funds from basic trainees, the following pertinent colloquy ensued:

[273]*273MJ: What does the Government see the maximum penalty to be . . . for the offenses to which the accused proposes to plead guilty?
TC: As to these three specifications, Your Honor, dishonorable discharge, confinement at hard labor for a period of six years, reduction to the lowest enlisted grade, total forfeiture of all pay and allowances, and we would also submit that unjust enrichment can be made out and a fine would be appropriate in this case.
MJ: Does the defense, other than the last comment of counsel as to the appropriateness of any particular punishment, agree with the maximum punishment as being a dishonorable discharge, confinement at hard labor for six years, forfeiture of all pay and allowances, reduction to the lowest enlisted grade?
ADC: Yes, Your Honor, we do.
MJ: Sergeant Dill, on your plea of guilty alone, just to these three specifications of the Charge, you could lawfully be sentenced to the maximum punishment authorized, which you’ve just heard us discussing. Have you discussed that maximum with your counsel so that you understand what the maximum punishment would be?
Acc: Yes, sir.
MJ: Do you have any questions concerning the sentence that could be imposed as a result of the plea of guilty?
Acc: No, sir.

As seen, aside from trial counsel’s oblique editorial allusion to it, the accused received no specific forewarning that the punishment could include a fine in addition to the other prescribed penalties. As the military judge subsequently adjudged a fine as a portion of the punishment (in the sum of $4,700.00, subsequently reduced by the convening authority to $4,000.00), appellate defense counsel contend that his advice as to punishment was inadequate and misleading, and the accused’s plea consequently improvident.

Though this very issue is presently pending before it (see e. g., United States v. Wailly, Docket Number 32,147, the United States Court of Military Appeals has not heretofore levied a requirement that advice on the maximum punishment extend to the fine which may be adjudged in addition to or in lieu of forfeitures of pay and allowances. See Manual for Courts-Martial, supra, paragraph 126A(3). We must, however, acknowledge appellate defense counsel’s point that the case of United States v. Cuen, 9 U.S.C.M.A. 332, 26 C.M.R. 112, 119 (1958), tends to support their position. In Cuen, the Court reasoned that a court-martial sentence which includes a fine is, on the basis of its distinctive characteristics, a more severe form of punishment than one in which a forfeiture has been adjudged. On that basis, the Court held that a reviewing authority’s commutation of an adjudged fine to a forfeiture was a permissible reduction in the degree and quantum of punishment.

Appellate government counsel, though conceding that in some instances a fine may be a more severe form of punishment than a forfeiture, maintain that this is not such a case, for in fact the monetary amount of the fine is much less than the forfeitures which could have been imposed. In any event, continue counsel, the quoted colloquy between the military judge and the trial counsel served to put the accused on notice that a fine was included with the specified maximum punishment.

We are initially inclined to agree with the Government’s secondary position, particularly since the accused acknowledged he had discussed the maximum punishment with his certified defense counsel and understood what it “would be.” See United States v. Thomas, 50 C.M.R. 638 (A.F.C. M.R. 1975), pet. denied, 50 C.M.R. 904 (1975). However, we find it unnecessary to resolve the issue on that basis, for we are otherwise convinced, in accord with the Government’s principal argument, that the punishment imposed cannot reasonably be construed as in excess of that which the military judge advised the accused was the maximum authorized.

[274]*274In the case of United States v. Landry, 14 U.S.C.M.A. 553, 34 C.M.R. 333 (1964), the late Chief Judge Quinn, speaking for the Court of Military Appeals, acknowledged that in general a fine has certain characteristics justifying its description in Cuen, supra,

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2 M.J. 271, 1976 CMR LEXIS 762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dill-usafctmilrev-1976.