United States v. Jones

3 M.J. 869, 1977 CMR LEXIS 756

Opinions

OPINION OF THE COURT ON FURTHER REVIEW

DRIBBEN, Judge:

Appellant, tried by military judge alone, was found guilty, pursuant to his pleas, of one specification of possession of heroin, one specification of sale of heroin, one specification of possession of drug paraphernalia, and one specification of possession of marijuana. The offenses were alleged as violations of Article 134, Uniform Code of Military Justice (10 U.S.C. § 934).

The sale and possession of heroin occurred at the same time and place. The amount sold was a portion of the total amount possessed. Thus, these two offenses were multiplicious for sentencing purposes. United States v. Waller, 3 M.J. 32 (C.M.A.1977); United States v. Smith, 1 M.J. 260 (1976). The marijuana possession occurred at the same time and place as the heroin possession, rendering those offenses multiplicious. United States v. Frangoules, 1 M.J. 467 (1976); United States v. Hughes, 1 M.J. 346 (1976). The maximum imposable sentence for all of the charged offenses, therefore, included confinement at hard labor for 11 years.

* The military judge determined that the maximum confinement at hard labor was 26 years.

Considering all the circumstances, including appellant’s favorable pretrial agreement, we do not find that the mistake in the maximum authorized amount of confinement induced or compelled the plea as was the case in United States v. Harden, 1 M.J. 258 (1976). The appellant’s pretrial agreement was as attractive in terms of 11 years potential confinement as of 26. To remedy the military judge’s error in basing his sentence on the incorrect maximum, we will reassess the sentence.

The findings of guilty are affirmed. Reassessing the sentence on the basis of the above-indicated error and the entire record, the Court affirms the sentence.

This case was tried before 2 July 1976, thus United States v. Courtney, 1 M.J. 438 (1976), is not applicable. United States v. Jackson, 3 M.J. 101 (CMA 1977).