United States v. Gutierrez , 11 M.J. 122 ( 1981 )

Opinion of the Court

COOK, Judge:

Contrary to his pleas, a general court-martial with members convicted the appellant of attempted murder, wrongful possession of a firearm, and assault with a dangerous weapon, in violation of Articles 80, 92 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 892 and 928, respectively. He was sentenced to a dishonorable discharge, confinement at hard labor for 12 years, total forfeitures, and reduction to pay grade E-l. The convening authority approved the findings and sentence. A majority of the United States Navy Court of Military Review held that the military judge had instructed the members on sentencing in a manner inconsistent with the provisions of paragraph 76b (1), Manual for Courts-Martial, United States, 1969 (Revised edition), by advising them of the maximum imposable punishment for each offense. However, the court further held that the appellant had not been prejudiced. 8 M.J. 865 (1980). One judge concurred in the result, noting his disagreement with the majority’s interpretation of the Manual provision. The Judge Advocate General of the Navy has certified an issue to this Court which questions the correctness of the majority’s interpretation of that provision. 9 M.J. 35 (1980).

Absent a contrary decision by this Court, a determination of a rule of law by a service Court of Military Review is controlling authority for all courts-martial in that service. Thus, the instructional rule declared by the court in this case will govern all future trials in the Navy. We have considered the probable future impact on courts-martial practice of a declaration of law by an appellate tribunal to be sufficient reason to respond to a certified question as to the correctness of that tribunal’s determination. In United States v. Lindsay, 12 U.S.C.M.A. 235, 30 C.M.R. 235 (1961), the Court concluded that declarations by an Army Board of Review (now Court of Military Review) as to limitations on its authority to reassess a sentence “were obviously dicta and conditional,” but, nevertheless, the Court deemed it necessary to correct the intermediate tribunal’s erroneous declaration of law. Id. at 241, 30 C.M.R. at 241 (footnote omitted). Although unarticulated, the impetus for the Court’s response was the effect of the erroneous ruling on future decisions of the Board of Review. Moreover, the instructional rule required by the Navy tribunal in this case is contrary to that authorized by a decision of an Air Force appellate tribunal. United States v. Kauffman, 33 C.M.R. 748, 797 (A.F.B.R. 1963), reversed on other grounds, 14 U.S.C. M.A. 283, 34 C.M.R. 63 (1963), but see decretal paragraph. Id. at 300, 34 C.M.R. at 80. Resolution of conflicting decisions by different service appellate tribunals is one of the major reasons Congress authorized certification for review. See United States v. Redding, 11 M.J. 100 (Fletcher, J., dissenting). These circumstances distinguish the present case from that before the Court in United States v. Clay, 10 M.J. 269 (C.M.A.1981). There, the Court determined that the declared rule of law certified for review could not “ ‘materially] ... [alter] the situation for the accused or for the Government.’ ” We conclude, therefore, that the question raised by the certificate for review is not moot.

Paragraph 76b (1) contains the following language:

The maximum punishment will be the lowest of the following: the total permitted by 127c for the offenses of which the accused stands convicted, or the jurisdictional limit of the court-martial (see Art. 19), or, in a rehearing or new or other trial of the case, the maximum authorized pursuant to 81d or 110a (2). A court-martial must not be advised of the basis for the sentence limitation or of any sentence which might be imposed for the offense if not limited as set forth above.

Apparently the majority below interpreted the word “total” as precluding any reference to individual offenses where multiple offenses are before the trial court. We disagree.

Under military practice, one sentence is imposed for all offenses before the court. See United States v. Castrillon-Moreno, 7 M.J. 414, 416, 418 (C.M.A.1979) (Cook, J., dissenting). The military judge in the present case did instruct the members on the total maximum imposable punishment and only one sentence was imposed. The quoted language was not contained in the 1951 Manual for Courts-Martial,¹ but it was added to the 1969 Manual, supra, to incorporate the legal requirements of several cases of this Court. Department of the Army Pamphlet 27-2, Analysis of Contents, Manual for Courts-Martial, United States, 1969 (Revised edition), page 13-9. An examination of those cases clearly reveals their inapplicability to the circumstances involved here.

In United States v. Jones, 10 U.S.C.M.A. 532, 28 C.M.R. 98 (1959), the Court held that during a rehearing the members should not be told that the maximum penalty had been reduced on review, or about the basis of the limitation placed on the maximum sentence resulting from the original hearing. We held the Jones admonition was applicable in United States v. Eschmann, 11 U.S.C.M.A. 64, 66, 28 C.M.R. 288, 290 (1959), where the members were advised of the maximum imposable punishment “normally ... authorized by the Table of Maximum Punishments,” although they were further instructed that the sentence was limited by the sentence imposed as a result of the original trial. We held the advice would Id. at 67, 28 C.M.R. at 291. Here, there has been no previous action by a sentencing authority which either limited the maximum imposable punishment set forth in the Table of Maximum Punishments,² or could exert some influence over the court numbers. The Court held in United States v. Green, 11 U.S.C.M.A. 478, 29 C.M.R. 294 (1960), that members of a special court-martial should not be told that the maximum imposable punishment would have been much greater if the offense had been referred to a general court-martial. See United States v. Harrison, 5 M.J. 34 (C.M.A. 1978). Appellant was tried by a general court-martial that was limited only by the Table of Maximum punishments and the Green rationale is inapplicable here.

cause the present court members to rely upon the discretion of a former court-martial concerning the appropriateness of the sentence.

In view of the purpose of paragraph 76b(l), we hold the court below imposed an unwarranted limitation on the sentence instructions. See United States v. Tomaszewski, 8 U.S.C.M.A. 266, 24 C.M.R. 76 (1957); United States v. Jenkins, 7 U.S.C. M.A. 261, 22 C.M.R. 51 (1956); United States v. LaGrange, 1 U.S.C.M.A. 342, 3 C.M.R. 76 (1952). Indeed, this Court has previously upheld individualized instructions under circumstances that would not mislead the members as to the total maximum punishment. United States v. Barnes, 11 U.S.C.M.A. 671, 29 C.M.R. 487 (1960). We believe the authors of the Military Judge’s Guide, DA PAM 27-9,³ which provides recommended instructions on maximum punishments, have correctly interpreted the previous decisions of this Court and paragraph 76b(l) of the Manual, supra, by permitting individualized instructions followed by a total which does not exceed the jurisdictional limit of the court-martial, or that otherwise authorized by law.

We answer in the negative the certified question and affirm the findings and sentence approved by the United States Navy Court of Military Review.

FLETCHER, J., concurs.

1 . Manual for Courts-Martial, United States, 1951.

2 . Para. 127c, Manual for Courts-Martial, United States, 1969 (Revised edition).

3 . See generally para. 8-3.

2 . The sentence limitation for each offense provided in the Table of Maximum Punishments is authorized by Article 56, UCMJ, 10 U.S.C. § 856:

The punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense.

See para. 14b, Manual for Courts-Martial, United States, 1969 (Revised edition); see also Article 18, UCMJ, 10 U.S.C. § 818.