United States v. Welker

Opinion of the Court Robert E. Quinn, Chief Judge: The accused was charged with a three-day unauthorized absence, in violation of Article 86, Uniform Code of Military Justice (Charge I), failure to obey an order to report to his commanding officer, in violation of Article 92 (Charge II), and two specifications alleging, respectively, the larceny of a Government telescope of the value of $95 and a Government rifle of the value of $94.30, in violation of Article 121 (Charge III), 10 USC §§ 886, 892, 921. He entered a plea of guilty to all charges. A stipulation was then admitted in evidence “to acquaint the court members with the facts in this case.” In part, the stipulation recites the following: “On or about 14 January 1957, I returned from maneuvers at Fort Bragg, North Carolina and- met Pfc Jim Butler, 504th Med Company. He told me that he had found an M-l rifle leaning against a tree while on maneuvers, he further told me that he had hid this rifle in a lake on Manchester road, Fort Bragg, North Carolina, and had marked the place by sticking a stick in the ground beside the lake. Butler told me if I wanted the rifle I could have it, as he wanted no part of it. On or about the night of 15 January 1957, Pfc Carroll W. Smith, Third Army Ordnance Battalion, his wife, myself and my wife Catherine drove to the lake in a borrowed car and I waded out in the lake and recovered the rifle. I took the rifle home and cleaned it up and kept the rifle around the house until sometime in February 1957, when I packed my household goods and I placed the rifle and telescopic sight with the household goods.” No further evidence was presented. After findings of guilty had been returned by the court, trial counsel read the accused’s personal data from the first page of the charge sheet. Part of the information is to the effect that the accused was then twenty years of age; that he had an allotment; and that he had been in the service for approximately two years. Evidence of one previous conviction on two specifications of unauthorized absence was admitted. No matter in mitigation was presented by the accused and the defense counsel made no argument as to the sentence. The law officer instructed the court members that the maximum punishment included confinement at hard labor for ten years and seven months. After five minutes of closed session deliberation, the court sentenced the accused to a dishonorable discharge, total forfeitures and confinement at hard labor for ten years and seven months. Two things stand out with special clarity. First, the accused’s plea of guilty to the theft of the rifle is patently inconsistent with the stipulation as [649] to the “facts.” The latter unmistakably shows that the accused did not steal the weapon. In its worse light, it shows the receipt of property known to be stolen. United States v McFarland, 8 USCMA 42, 23 CMR 266. Consequently, the plea of guilty to this charge should not have been accepted. United States v Messenger, 2 USCMA 21, 6 CMR 21; United States v Gentry, 21 CMR 361. The second matter which is especially noteworthy is that the circumstances suggest “the court surmised from the accused’s plea of guilty that he had an agreement with the convening authority as to the maximum sentence and abdicated their function of adjudging an appropriate sentence in the case.” United States v Buckland, CM 394524, decide February 19, 1957. We need not make a specific ruling on this point, but it is appropriate to point out that there seems to be a disposition on the part of courts-martial, in cases in which a plea of guilty is entered and no evidence in mitigation is presented, “automatically [to] conclude that the accused had made a pretrial agreement as to the sentence and . . . [therefore, they] see no real purpose in their devoting time and effort to consideration of an appropriate punishment.” United States v Ratliff, CM 394573, decided February 12, 1957. This disposition appears to be connected with a tendency on the part of defense counsel to present no evidence, and to make no argument, in mitigation when there is an agreement with the convening authority on the plea and the sentence. The latter practice has already brought a number of cases to this Court on a claim by the accused that he was inadequately represented at the trial. See United States v Allen, 8 USCMA 504, 25 CMR 8; United States v Elkins, 8 USCMA 611, 25 CMR 115; United States v Armell, 8 USCMA 513, 25 CMR 17. The issue has also been raised in this case. A continuation of these trends may require reexamination of the practice of negotiating agreement on the plea and the sentence with the convening authority. Cf. United States v Allums, 5 USCMA 435, 18 CMR 59. Since the findings of guilty on specification 2 of Charge III are based upon an improvident plea, they must be set aside. The stipulation of “facts” shows an offense different from that alleged in the specification and not included within it. United States v McFarland, supra. Therefore, the specification must be dismissed. As a result, the permissible maximum sentence is almost half that which the law officer instructed the court members could be legally adjudged. These, and other circumstances in the case, require a rehearing on the accused’s sentence by a court-martial. See United States v Oakley, 7 USCMA 733, 23 CMR 197. The findings of guilty as to specification 2 of Charge III are set aside and the specification is ordered dismissed. The sentence is set aside and a rehearing thereon is ordered. Judge Ferguson concurs.