United States v. Foti

12 C.M.A. 303, 12 USCMA 303, 30 C.M.R. 303, 1961 CMA LEXIS 257, 1961 WL 4442

• Court: United States Court of Military Appeals
• Decided: April 21, 1961
• Docket: No. 14,662
• Status: Published

Opinions

Opinion of the Court

GEORGE W. Latimer, Judge:

The instant ease was forwarded to this Court for review under the provisions of Article 67(b)(2), Uniform Code of Military Justice, 10 USC § 867, and involves an inquiry by The Judge Advocate General of the Army as to whether the board of review was correct in reassessing accused’s sentence. The latter was tried by a general court-martial for larceny of $75.00, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. He pleaded not guilty to the alleged offense but guilty of the lesser crime of wrongful appropriation. After a trial on the merits, he was found guilty as charged, and the convening authority approved the adjudged sentence of dishonorable discharge, total forfeitures, and confinement at hard labor for two years. A board of review in the office of The Judge Advocate General of the Army determined the accused was prejudiced by inadequate pretrial advice to the convening authority and, to remove any possible harm, reassessed sentence upon the basis of the entire record. In its opinion, the board of review not only mentioned curing any semblance of prejudice but went further and stated it was considering such extenuating and mitigating factors as the accused’s youth, his belated realization of the seriousness of the offense, his repentance, his prior good record, and his earnest desire and potentiality for future military service.

From the foregoing statement, it is apparent that the opinion of this Court in United States v Higbie, 12 USCMA 298, 30 CMR 298, decided this day, is dispositive of the certified question and requires affirmance of the board of review’s decision. However, a few observations touching on the insufficiency of the pretrial advice are considered appropriate.

The staff judge advocate to the convening authority submitted his opinion on a form which included the minimal requirements set out in paragraph 35c of the Manual for Courts-Martial, United States, 1951. The Government seeks to sustain it as adequate or, in the alternative, to invoke the doctrine of waiver. In view of our disposition, we need not discuss either issue but, like the board of review, we conclude the advice fell far short of serving the ends of justice. The Manual, supra, requires that a case be referred to the lowest court which can adjudge an appropriate sentence for the crime committed. See paragraph 33h at page 42. In order to aid the convening authority in that determination, facts which have a substantial effect on his decision ought to be called to his attention and thus save him the duty of going through a record with a fine tooth comb. Although in most instances furnishing the minimal information might be sufficient, for the record may not contain additional guides and, while in usual cases forms might be a convenient means to inform the convening authority, they may be snares when extraordinary circumstances are present,

Here the staff judge advocate had before him cogent facts which might have aided the convening authority immeasurably in arriving at a proper decision. These included testimony showing the offense was not aggravated; the company commander’s recommendation for trial by special court-martial, his belief that the accused would become a useful soldier, and his desire to have the accused retained in his command; a psychiatrist’s evaluation that the accused appeared generally motivated for further military service; the Article 32 investigating officer’s recommendation that the offense be reduced to wrongful appropriation and tried by a special court-martial; and accused’s explanation of his intent which impressed the pretrial investigating officer, his confession to taking the money and its immediate return, and his desire to rehabilitate himself and serve out his obligation. While obviously the convening authority is not bound by any or all of these facts, as he is authorized to use his own independent judgment as to which type of court should try the accused, it ought to be obvious that the better he is informed the more fairly and justly will he exercise his discretion.

In this connection, we do not intend to postulate rigid rules to control pretrial legal officers on their advice, but we do suggest that criminal charges should receive individualized treatment and when, as here, there are factors which would have a substantial influence on the decision of the convening authority, they should be furnished to him. We, therefore, agree with the observations of the board of review that the pretrial advice in this case is subject to criticism for .being too scanty.

The decision of the board of review is affirmed.

Chief Judge Quinn concurs.