United States v. Heaston

19 C.M.A. 281, 19 USCMA 281, 41 C.M.R. 281, 1970 CMA LEXIS 942, 1970 WL 7324

Opinions

Opinion of the Court

Darden, Judge:

The appellant’s conviction for housebreaking, larceny, wrongfully possessing and transferring morphine, in violation of Articles 130, 121, and 134, Uniform Code of Military Justice, 10 USC §§ 930, 921, and 934, resulted from his pleas of guilty. He was given a sentence that included a bad-conduct discharge, total forfeitures, and confinement at hard labor for one year.

The single question before this Court is whether the appellant was prejudiced by the law officer's failure to instruct the court members orally on sentencing procedures. Such advice is included in Appellate Exhibit III that was handed to the president of the court after being examined by counsel for both sides. Perhaps the written advice was considered and followed. But, without more, we cannot be sure. United States v Pryor, 19 USCMA 279, 41 CMR 279 (1970).

Accordingly, the decision of the Court of Military Review as to sentence is reversed. The record of trial is returned to the Judge Advocate General of the Army. A rehearing on the sentence may be ordered.

Judge Ferguson concurs.