United States v. Eschmann

Opinion of the Court HomeR FERGUSON, Judge: Tried by general court-martial, the accused was convicted of five specifications of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, and sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years. The convening authority ordered a rehearing on the sentence in view of a command lecture delivered to court members regarding the adjudging of “puny sentences.”1 Thereafter, the accused was again brought to trial before another court-martial, the members of which had not been subjected to the ill-considered remarks of the commander involved. Over the accused’s objection, the law officer instructed the court-martial concerning the penalty which it might impose as follows: “. . . You are instructed that normally the maximum punishment authorized by the Table of Maximum Punishments for the offenses is a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for twenty-five years. However, in this case, in imposing punishment for the offenses for which the accused stands convicted, the court is limited to the sentence imposed by the court at the original trial, which is a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years. Therefore, the maximum punishment which you can impose in this case is a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years.” The court sentenced the accused to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years. On review, the convening authority reduced that portion of the penalty relating to confinement to one year, ten months, and twenty-four days. He otherwise approved the sentence. The board of review assumed that the instruction on the maximum sentence was erroneous but asserted that it “was unquestionably rendered harmless by the reviewing authority’s action in reducing the confinement period adjudged to less than half.” We granted the accused’s petition for review on the issue whether the advice on sentence was prejudicially improper. [66] The law officer’s instruction was patently erroneous. United States v [67] Jones, 10 USCMA 532, 28 CMR 98; United States v Skelton, 10 USCMA 622, 28 CMR 188. As we said in United States v Jones, supra, at pages 533-534: . . The members of the court are concerned only with the maximum imposable sentence and not the basis for the limitation it places upon them.” Here, the maximum imposable sentence extended to dishonorable discharge, total forfeitures, and confinement at hard labor for five years — the punishment adjudged at accused’s first trial. Accordingly, the limitation contained in the Table of Maximum Punishments, Manual for Courts-Martial, 1951, paragraph 127c, was no longer relevant, and the court members should not have been informed of it. Moreover, the fact that the five-year limitation resulted from a previous court-martial sentence should not have been mentioned. The tendency of such advice is to cause the present court members to rely upon the discretion of a former court-martial concerning the appropriateness of the sentence. A proper instruction would have been simply that the maximum punishment was dishonorable discharge, total forfeitures, and confinement at hard labor for five years. Left for consideration is the question whether other appellate authorities have by their actions on the sentence purged the erroneous advice of its prejudicial effect. At the outset, we note that rehearings on the sentence were deemed necessary in United States v Jones and United States v Skelton, both supra. In neither of those cases, however, were the members of the court advised of the correct maximum sentence, for no mention was made therein of the effect of the intermediate ameliorating action taken by the convening authority with respect to the penalties adjudged. Thus, the courts-martial in those cases were permitted to speculate beyond legally permissible bounds in determining an appropriate punishment. While the law officer herein erroneously advised the court of the penalty prescribed in the Table of Maximum Punishments, supra, as well as the fact that the actual maximum had been adjudged at a former trial, he nevertheless specifically informed the members of the correct limitation upon their power to punish. The effect of his misadvice, therefore, extends only to the possibility that the members were affected in their deliberations by the knowledge that another court-martial had adjudged a severe penalty or by the statement of what the legal maximum penalty would be, absent the original sentence. We are certain that the board of review’s recognition of the error, arguendo, and reassessment of the sentence in light of the substantial reduction by the convening authority was sufficient to remove any harm flowing from that contingency. The decision of the board of review is affirmed. Chief Judge Quinn concurs. Footnotes [1] The command lecture was apparently conceived and delivered by a commander inferior to the conving authority. When the matter was brought to his attention in the post-trial review, he immediately sought to overcome the error by ordering the rehearing on sentence. As the lecture dealt only with the subject of inadequate sentences, that remedy was adequate.