United States v. Plys

22 C.M.A. 662

Opinion

On consideration of appellant’s petition for reconsideration on the ground that the Court did not consider, in its opinion (22 USCMA 374, 47 CMR 129) in regard to the original petition, a separate assignment of error as to the admissibility of a prosecution exhibit indicating that appellant has been convicted for "petty larceny” by a civilian court in the State of Virginia, it is, by the Court, this 16th day of July 1973,

ORDERED:

That the petition for reconsideration be granted. On such reconsideration, we adhere to our original affirmance of the decision of the Court of Military Review. The state of the record is such that we are unable to determine whether or not appellant’s previous conviction had been constitutionally obtained. But assuming constitutional infirmity, it does not appear that the sentence "might have been different” if the trial judge had been aware thereof. United States v. Tucker, 404 US 443, 448 (1972); United States v. Alderman, 22 USCMA 298, 46 CMR 298 (1973).

Chief Judge Darden concurs in the result. See his opinion in United States v. Alderman, supra.