United States v. Temple

11 M.J. 687, 1981 CMR LEXIS 730

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: May 19, 1981
• Docket: No. NMCM 80 0815
• Status: Published

Opinions

KERCHEVAL, Judge:

Appellant entered mixed pleas to 14 violations of Article 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892, alleging the wrongful possession, transfer and sale of lysergic acid diethylamide and possession and transfer of marijuana. He was convicted of all 14 specifications and was sentenced to confinement at hard labor for 3 years, forfeiture of all pay and allowances, and a dishonorable discharge from the naval service. Pursuant to a pretrial agreement, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 3 years, total forfeitures, and a bad-conduct discharge. All confinement in excess of 367 days was suspended for 18 months from the date of trial.

Appellant has assigned the following error:

THE MILITARY JUDGE ERRED BY INSTRUCTING THE MEMBERS AS TO THE MAXIMUM PUNISHMENT FOR EACH OFFENSE.

Although we find this assignment of error to be meritorious, no corrective action is required.

The military judge, prior to the members’ deliberation on sentencing, gave the following instruction:

For sentencing purposes, you are to consider Specifications 1, 2 and 3 as one offense. The maximum punishment for that offense is:

A dishonorable discharge; Confinement at hard labor for a period of one year; Forfeiture of all pay and allowances.

MJ: You are to consider Specifications 4, 5, 6, 7 and 8 as one offense for punishment purposes. The maximum punishment is:

A dishonorable discharge; Confinement at hard labor for a period of one year; and Forfeiture of all pay and allowances.

MJ: You are to consider Specifications 9, 10 and 11 one offense for punishment purposes and the maximum punishment is:

A dishonorable discharge; Confinement at hard labor for a period of one year; and Forfeiture of all pay and allowances.

MJ: In regards to Specification 12, the maximum punishment is:

A dishonorable discharge; Confinement at hard labor for a period of two years; and Forfeiture of all pay and allowances.

MJ: You are to consider Specifications 13 and 14 as one offense for punishment purposes and the maximum punishment for that offense is:

A dishonorable discharge; Confinement at hard labor for a period of two years; and Forfeiture of all pay and allowances.

MJ: Therefore, the maximum permissible punishment for all offenses for which the accused has been found guilty is:

A discharge from the service with a dishonorable discharge; Confinement at hard labor for a period of seven years; and Forfeiture of all pay and allowances.

Paragraph 76b (1), Manual for Courts-Martial, 1969 (Rev.) (MCM), in pertinent part provides:

The maximum punishment will be the lowest of the following: the total permitted by 127c for the offenses of which the accused stands convicted, or the jurisdictional limit of the court-martial (see Art. 19), or, in a rehearing or new or other trial of the case, the maximum authorized pursuant to 81d or 110a (2). A court-martial must not be advised of the basis for the sentence limitation or of any sentence which might be imposed for the offense if not limited as set forth above.

(Emphasis added).

The single issue involved is whether the above-emphasized language prohibits presentencing instructions such as given in this case. Notwithstanding the holding of the Army Court of Military Review, United States v. Clinton, No. 436534 (A.C.M.R. 17 November 1978), we believe the drafters of the 1969 Manual intended that the language, “A court-martial must not be advised of the basis for the sentence limitation ...” be interpreted to include a prohibition against individually stating the various maximum punishments for each offense at an original trial, as well as before rehearings or new or other trials. United States v. Gutierrez, 8 M.J. 865 (N.C.M.R. 1980); United States v. White, 3 M.J. 619 (N.C. M.R. 1977). To hold otherwise would lead to confusion on the part of the members regarding the proper sentence voting procedures, and could result in the members voting for individual sentences for each offense and then adding the results to arrive at a single sentence to be announced. Such practice, in addition to being in violation of existing law, would most likely result in the appellant receiving a greater sentence than would otherwise be adjudged. The repetition of such permissible punishments as dishonorable discharge, total forfeiture of pay and allowances and reduction to the lowest enlisted pay grade would overemphasize those types of punishments.

Additionally, the Manual clearly states that in the case of a “rehearing or new or other trial” the sentence limitation is the lesser of that which was adjudged at the original trial or that which has been approved on review. Paragraphs 76b (1), 81d and 110a (2), MCM. The court members are not to be advised of the reasons for the lower sentence limitation. Id. If the sentencing instruction given in this case, permitting advice as to the maximum punishment for each offense, was condoned, it is difficult to imagine what instructional advice would be required in cases involving rehearings or new or other trials in which the original court had adjudged and/or a reviewing authority had approved something less than the original authorized maximum sentence. It would be impossible, when a rehearing or new or other trial is ordered, to apportion the sentence adjudged and/or approved at the first trial to each of the offenses of which an accused is convicted at the second trial. On the other hand, if the court was instructed as to the maximum punishment for each offense, the aggregate of the individual punishments would be greater than that which would be authorized at the second trial; but the court members could not be advised of the basis for the lower sentence limitation. This would result in an unacceptable risk of confusion on the part of the court members if the basis of the sentence limitation was not explained; and if the court members were advised of the basis, the instruction would be in clear violation of paragraph 76b (1), MCM.

Although we find it was error for the military judge to instruct the members as to the maximum punishment for each offense of which they had found appellant guilty, we may cure the error by reassessment of the sentence. In view of the severity of the offenses committed and the mitigating action already taken by the reviewing authorities, we consider that the reduced sentence is appropriate.

Accordingly, the findings and sentence, as approved below, are affirmed.

Chief Judge CEDARBURG, Senior Judge GREGORY, and Judges SANDERS, BOHLEN and GLADIS concur.