United States v. Zemartis

Opinion Homer Ferguson, Judge: The accused, tried before a special court-martial for a twenty-six-day absence without leave, entered a plea of guilty. The president of the court-martial, in ascertaining that the accused understood the meaning and effect of the plea, advised him that the maximum sentence the court could award “for the offense to which you have pleaded guilty is: Confinement at hard labor for six months, forfeiture of two-thirds of his pay per month for a period of six months, and reduction to the grade of fireman recruit.” The accused indicated his understanding and persisted in his plea of guilty. After findings, evidence of three previous convictions by court-martial was introduced and the president advised the court that the maximum sentence which could be imposed was a bad-conduct discharge, confinement at hard labor for six months, forfeiture of two-thirds of his pay for six months, and reduction to the grade of fireman recruit. The court-martial imposed a sentence which included a bad-conduct discharge. The Judge Advocate General of the Navy has certified two issues to this Court. The first is: “Did the president of the court-martial err when he failed to include in his advice to the accused, following the latter’s plea of guilty, the fact that a bad conduct discharge was a permissible additional punishment in the event of proof of two or more previous convictions?” A plea of guilty, to be accepted, must be freely and voluntarily entered by the accused. United States v Butler, 9 USCMA 618, 26 CMR 898; United States v Willie, 9 USCMA 623, 26 CMR 403. Paragraph 706, Manual for Courts-Martial, United States, 1951, indicates that before accepting a plea of guilty, the president of a special court-martial should explain to the accused the meaning and effect thereof, unless it otherwise affirmatively appears that [355] the accused understands the meaning and effect of his plea. The explanation includes a statement that the maximum punishment authorized for the offense to which the accused has pleaded guilty may be adjudged upon conviction thereof. Cross-reference is made therein to Appendix 8a of the Manual, supra, for an example of the procedure to be followed. At pages 509 to 510 is given an example1 which, had it been followed in the instant case, could have avoided the error now complained of. It provides in part: “If an- enlisted person has pleaded guilty to an offense or offenses for none of which dishonorable or bad conduct discharge is authorized, the LO (president of a special court-martial) should supplement his advice as to the maximum punishment with a statement in substantially the following form: ‘However, if the court receives evidence of two or more previous convictions, the maximum punishment which could be adjudged for the offense(s) to which you have pleaded guilty would be: bad conduct discharge, confinement at hard labor for-, and forfeiture of •-.’ [2] This supplemental advice may also be appropriate in the case of an accused who is a prisoner sentenced to a punitive discharge. In this connection, see Section B, Table of Maximum Punishments (127c). “If the accused persists in his plea of guilty, and it appears later that he was erroneously advised of a punishment less severe than the maximum legally authorized for the offense or offenses to which he pleaded guilty, the court should advise him of the correct maximum punishment and give him an opportunity to withdraw his plea of guilty. See 70.” This, then, gives the president of a special court-martial alternative means of obviating the error: (1) by giving a conditional type of advice, or (2) by further advising the accused as to the correct maximum punishment and permitting him to withdraw his plea of guilty. The failure of the president here to pursue one of these courses clearly constitutes error. The answer to the first certified issue, then, is that the president erred by failing to adopt one of the mentioned alternatives. The second certified issue states: “If the answer to the first issue is in the affirmative, was the error cured by the failure of the accused to change his plea after the president instructed the court that the maximum allowable punishment included a punitive discharge?” Here, again, the quoted mandate from the Manual would place the burden upon the president of a special court-martial to correctly advise the accused and give him an opportunity to withdraw his plea. Cf. Article 45, Uniform Code of Military Justice, 10 USC § 845. I think the burden is properly placed. An accused is entitled to rely upon advice as to the maximum sentence given him by the president of a special court-martial. Where, as here, the court-martial imposes a sentence more severe than that which the accused was led to believe was authorized, prejudice clearly follows.3 The error was not cured nor was its prejudicial effect lessened by the failure of the accused to change his plea after the president instructed the [356] court-martial that the maximum allowable punishment included a punitive discharge. The certified issue in essence is whether the accused, by failure to change his plea, has waived the right to object to the error. I am not disposed to apply the doctrine of waiver in a special court-martial where, as here, the appointed defense counsel was not a lawyer in the sense of Article 27, Uniform Code of Military Justice, 10 USC § 827. United States v Hill, 9 USCMA 10, 25 CMR 272; United States v Anderson, 8 USCMA 603, 25 CMR 107; United States v Williams, 8 USCMA 443, 24 CMR 253.4 The second certified issue is answered in the negative. The decision of the board of review, which approved a sentence not including a bad-conduct discharge, is affirmed. Chief Judge Quinn concurs in the result. Footnotes [1] The note at page 509 of the Manual, supra, indicates that “Upon inquiry by the accused,” the president of a special court-martial should advise him of the maximum punishment. It is not necessary that we here determine whether this correctly states the law or whether in all cases the accused should be so advised. Suffice it to say that where the accused is advised as to the maximum permissible punishment, such advice must be correct. [2] The quoted language must be modified as required to comply with the provisions of Executive Order No. 10565, 19 F R 6299, September 28, 1954, the details of which are not necessary to our discussion. [3] Boards of review considering similar issues have reached comparable results. See United States v Morgan, 6 CMR 462; United States v King, 13 CMR 532; United States v Gherardi, 8 CMR 562. [4] An informal waiver could, of course, occur even in a special court-martial case if it is shown the accused was properly apprised of the correct maximum punishment and of his right to change his plea and chose not to do so. However, such is not the case here.