United States v. Dowd

7 M.J. 445, 1979 CMA LEXIS 8918

• Court: United States Court of Military Appeals
• Decided: October 22, 1979
• Docket: No. 34,671; CM 434697
• Status: Published

Opinions

FLETCHER, Chief Judge:

At a general court-martial, appellant pleaded guilty to possession of marijuana and possession of lysergic acid diethylamide with intent to distribute, in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. § 892 and § 934, respectively. The members of his court-martial sentenced him to a dishonorable discharge, confinement at hard labor for 3 years, reduction to Private E — 1, and total forfeitures. The convening authority approved the findings of guilty and the discharge, but pursuant to a pretrial agreement, reduced the confinement to 12 months and the forfeitures to $200 pay per month for 12 months. Upon further review, the United States Army Court of Military Review held that a defense request for a witness whose testimony was alleged to be material to the sentence had been improperly denied. To cure the error, the court reassessed the sentence, approving only the dishonorable discharge, confinement at hard labor for 7 months, forfeiture of $200 pay per month for the same period, and reduction to the lowest enlisted pay grade. We granted review to determine whether the accused’s pleas of guilty were improvident, and whether the Court of Military Review’s reassessment of the sentence cured the alleged error in the sentencing proceedings.

The appellant entered into a pretrial agreement based upon the belief that the maximum authorized punishment for his offenses included 12 years’ confinement at hard labor. See United States v. Bowers, 1 M.J. 200 (C.M.A.1975). At trial the military judge, with concurrence of both counsel, advised the appellant that the maximum confinement authorized for his offenses was 7 years. In view of para. 127c, Manual for Courts-Martial, United States, 1969 (Revised edition)¹ and also our decision in United States v. Hughes, 1 M.J. 346 (C.M.A.1976),² the correct advice was 2 years. Under these circumstances such a discrepancy in sentence advice is substantial. United States v. Harden, 1 M.J. 258 (C.M.A.1976).

In the present case, there is no indication in the record of trial that the appellant was aware of possible sentence alternatives and intelligently decided to plead guilty regardless of the legal limit on confinement authorized for his offenses. See United States v. Hedlund, 7 M.J. 271 (C.M.A.1979); United States v. Frangoules, 1 M.J. 467 (C.M.A.1976); United States v. Harden, supra. Since the appellant was substantially misinformed as to the consequences of his pleas, his consent to forgo trial with its attendant protections was not intelligent. Therefore, his plea must be invalidated. 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 and sentence set aside; the guilty pleas are vacated. A rehearing may be ordered.³

Judge PERRY * concurs.

1 . See 33 D.C.Code § 701 et seq; Council Regulation 74-79, 21 D.C. Register 1525-26.

2 . See Prosecution Exhibit 1.

3 . Our disposition of this case makes it unnecessary to address the second issue raised by the appellant.