United States v. Matthews

2 M.J. 881, 1976 CMR LEXIS 830

• Court: U.S. Army Court of Military Review
• Decided: May 13, 1976
• Docket: SPCM 11978
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM:

One term of appellant’s pretrial agreement provided for suspension of any punitive discharge imposed at his special court-martial trial for larceny. While inquiring into the providency of appellant’s guilty plea, the trial judge looked at the whole agreement, including an appendix containing the agreed-upon sentence. Satisfied that the plea was provident, the judge found appellant guilty and imposed a sentence which included a bad conduct discharge. Then he made a recommendation of record that the discharge be suspended by the convening authority.

Appellant asserts that the judge’s examination of the sentence portion of his pretrial agreement was prejudicial error because that examination made it “ . impossible for him to arrive at an appropriate sentence.” Assuming error for the moment, we observe that any sentence within the jurisdictional limits of a BCD special court-martial would have been “appropriate” on these facts. However, the judge’s sentence, including his recommendation for probation, was quite lenient and significantly less than the maximum which might have been approved under the agreement. Thus, there was no prejudice.

That finding has been made in order to be fully responsive to appellant’s assertion of prejudice, but is really unnecessary because there was no error in the trial judge’s action. United States v. Villa, 19 U.S.C. M.A. 564, 42 C.M.R. 166 (1970); United States v. Morrell, 2 M.J. 479 (A.C.M.R. 24 December 1975).

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Accordingly, the findings of guilty and the sentence are affirmed.

We are aware that the Court of Military Appeals has granted petitions for review in two cases which contain issues similar to this one. At this time, Villa is dispositive of the error issue here and the absence of prejudice impels immediate action. Article 59, UCMJ, 10 U.S.C. § 859. See also Chief Judge Fletcher’s concurring opinion in United States v. Elmore, 1 M.J. 262 (January 16, 1976).