United States v. Higbie

Opinion of the Court HomeR FeRGüson, Judge: At his original trial, the accused was found guilty of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921; housebreaking, in violation of Code, supra, Article 130, 10 USC § 930; and false swearing, in violation of Code, supra, Article 134, 10 USC § 934. He was sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three years. On review, the convening authority determined that the specification purporting to allege false swearing did not set forth an offense. For this reason and because of possible command control, with respect to the sentence proceedings of the former court-martial, he approved only the findings of guilty of larceny and housebreaking and ordered a rehearing on the penalty. At the rehearing, the law officer properly instructed the court-martial that the maximum sentence which it might adjudge could not exceed dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three years. The court sentenced accused to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for two years. On further review, the staff judge advocate extensively discussed accused’s military and civilian background and recommended approval of the sentence adjudged. No mention was made of the specification and Charge previously dismissed. The convening authority approved the sentence. The board of review, adverting to the fact that the convening authority did not indicate whether he had considered the question of the appropriateness of the punishment in light of his prior disapproval of a finding of guilty, upon the basis of the entire record reduced the period of confinement adjudged to one year, but otherwise affirmed the findings and sentence. Thereupon, The Judge Advocate General of the Army certified the following question to this Court: “WAS THE BOARD OP REVIEW CORRECT IN REASSESSING THE SENTENCE ON THE GROUND THAT THE CONVENING AUTHORITY CONSIDERED THE SENTENCE ORIGINALLY ADJUDGED FOR THREE OFFENSES AS THE LIMIT APPLICABLE TO THE TWO REMAINING OFFENSES?” The pertinent portion of the board of review’s opinion reads as follows: “In considering the appropriateness of the sentence, we are mindful of certain matters which we shall discuss. At the original trial, the court was instructed that the maximum authorized confinement was thirteen years: five years each for larceny and housebreaking and three years for false swearing. The law officer instructed the court, at the rehearing, that confinement in excess of three years could not be adjudged. There is no provision of law which authorizes a law officer to proportion the sentence originally adjudged to [300] the offenses remaining on rehearing, and we do not believe a provision authorizing such apportionment would be practicable. Therefore, we believe his instructions were proper. See Article 63, which provides that upon a rehearing, ‘no sentence in excess of or more severe than the original sentence shall be imposed’ unless the sentence is based upon an offense not considered at the prior hearing. However, we are concerned by the question whether the spirit of Article 63, if not the letter, was violated by considering the sentence adjudged for three offenses as the limit applicable to the two remaining offenses. “The convening authority is given the duty by Article 64 to approve only so much of a sentence ‘as he finds correct in law and fact and as he in his discretion determines should be approved.’ We find no indication that, in connection with his determination of appropriateness, he considered the question of reassessing the sentence in the light of his prior disapproval of one finding of guilty. We do not criticize his failure to reassess, because we have found no prior case in which the specific question was presented. “We believe that any possible prejudice to the accused can be overcome by our reassessment of the sentence in the light of these circumstances, since a board of review has ‘the authority to determine the appropriateness of the sentence' including ‘the right to make the determination regardless of the action on the findings, in all cases where the sentence is one which the board is authorized to change.’ United States v Stene, 7 USCMA 277, 281, 22 CMR 67, 71 (1956). “Considering the foregoing and the entire record in this case, the Board of Review is of the opinion that no greater sentence than dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year is appropriate and should be approved. The Board of Review finds that the findings and the sentence as here modified are correct in law and in fact and should be approved.” [Emphasis partially supplied.] It will be seen from the foregoing that the board of review in discussing the question of the convening authority’s action was dealing with the issue of the appropriateness of the adjudged and approved penalty. While it referred to the possible influence of the dismissed charge and specification upon the convening authority in approving the sentence, it specifically based its reduction of the period of confinement upon both this consideration and “the entire record in this case.” It found, on that basis, the modification to be correct in law and fact. It is clear, therefore, that the board’s action was taken unambiguously on the basis of the whole record and is safely within the ambit of its plenary authority to determine anew the appropriateness of the sentence. Under the circumstances, the exercise of its discretion may not be utilized to create a certified question reviéwable by this Court. United States v Bedgood, 12 USCMA 16, 30 CMR 16; United States v Armbruster, 11 USCMA 596, 29 CMR 412. In short, where a board of review bases a determination of appropriateness of sentence upon the entire record, one of the many factors it considered may not be dissected out in order to have us pass upon a certified issue, the answer to which cannot affect the board’s ultimate decision. See United States v Jones, 10 USCMA 532, 533, 28 CMR 98. The decision of the board of review is affirmed. Chief Judge Quinn concurs.