United States v. Hamill

Opinion of the Court GEORGE W. LatimeR, Judge: Upon his arraignment before a general court-martial, the accused pleaded guilty to the crime of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. Before accepting the plea, the law officer held an out-of-court conference to make sure that the plea was being entered voluntarily and intelligently. To that end he asked the accused to state in his own words why he was pleading guilty. The accused replied generally that he had committed the crime; that his own pretrial confession would serve to convict him; and that even though he knew he could exercise his legal right to plead not guilty, he did not wish to waste his own time and the court’s with a full dress trial. Further inquiry by the law officer developed that the accused and his counsel had made a proposal to the convening authority for a sentence substantially better than the maximum imposable for the offense of larceny, conditioned upon his entering a guilty plea, which proposal was considered favorably by the convening authority. The law officer then questioned the accused upon his understanding of the terms of the proposition he submitted to the convening authority. It was the accused’s impression that in consideration of his plea of guilty, the convening authority would not approve a sentence greater than dishonorable discharge, total forfeitures, and confinement at hard labor for two years; that the dishonorable discharge would be suspended during the period of confinement ; and that if he were a “good man in confinement,” the discharge would not be executed and he would be restored to duty. On this basis, the law officer accepted the guilty plea. The court convicted the accused as charged and sentenced him to dishonorable discharge, total forfeitures, and confinement at hard labor for three years. In his review of the case, the staff judge advocate discussed the offer made by the accused, and this is his statement of the terms of the maximum sentence which he understood would be affirmed: . . Prior to trial the counsel for the accused advised the Staff Judge Advocate that the accused had decided to enter a plea of guilty to the charge and specification and requested that leniency be given to the accused. The Staff Judge Advocate thereupon, acting for the convening authority and with his concurrence determined that only so much of the sentence as may be adjudged by the court as provides for a dishonorable discharge, suspended, forfeiture of all pay and allowances and confinement at hard labor for two (2) years be approved.” The convening authority subsequently reduced the sentence to make it conform to the offer, but, because his wording is all-important, we quote the action taken by him: [466] . . only so much of the sentence as provides for a dishonorable discharge, confinement at hard labor for two (2) years, and forfeiture of all pay and allowances . . . but the execution of that portion thereof adjudging dishonorable discharge is suspended until the accused’s release from confinement or until completion of appellate review, which ever is the later date.” The board of review affirmed the findings and sentence, and the accused’s petition for review was granted by us to consider whether the sentence, as approved by the convening authority, was in agreement with the understanding of the accused. Article 45, Uniform Code of Military •Justice,' 10 USC § 845, provides in pertinent part that “if it appears that . . . [the accused] has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect . . . the court shall proceed as though he had pleaded not guilty.” While that provision does not fit this case precisely, it suggests that Congress intended an accused should not be permitted to plead guilty if there is any honest mistake inducing his judicial confession. Here it is indicated that the accused interpreted the nature of the suspension to be imposed in one manner, while military authority construed it differently. The out-of-court conference, which was reported and is appended to the record as an appellate exhibit, establishes that the accused understood the dishonorable discharge portion of his sentence would be suspended upon approval and that his good conduct would insure against a revocation. He thought his offer was understood by the military authorities to include a suspension of the dishonorable discharge which would be effective immediately, and, if his prison behavior met prescribed standards, an automatic remission would follow. The staff judge advocate’s review might be said to support that view, but the sentence approved by the convening authority and other papers in the record show that military authorities intended only a temporary suspension during the appellate processes which might ripen into an absolute suspension and remission of the discharge if certain officials, such as the members of the Clemency Parole Board and others, concluded from many criteria that such clemency was appropriate. It is thus apparent that the suspension ordered is but a step in the direction' of the result expected by the accused. Certainly, there is no assurance within the terms of the sentence approved by the convening authority that accused’s good behavior in confinement will be the sole criterion upon which a remission and restoration to duty will be considered. We, of course, know that servicemen committing larcenies face policy considerations militating against suspensions and remissions, and in the end this accused may receive a dishonorable discharge regardless of his prison deportment. Assuming, as we must, that the accused and the convening authority dealt with each other in good faith, there was an honest mistake on the conditions of the suspension which should be corrected. Therefore, the following disposition is ordered. If the accused’s conduct since conviction has been good and a military authority with power to do so remits the dishonorable discharge within thirty days, the decision of the board of review is affirmed. Otherwise, a rehearing is ordered.