United States v. Marsala

Ferguson, Judge

(concurring in part and dissenting in part):

*125I concur in part and dissent in part.

I disagree with my brothers’ holding in this case that the plea of guilty was properly accepted by the military judge for the reasons set forth in my separate opinion in United States v Palos, 20 USCMA 104, 42 CMR 296 (1970). The military judge’s failure to make a specific finding on the record that the accused knowingly, intelligently, and consciously waived his right against self-incrimination, his right to trial of the facts by a court-martial, and his right to be confronted by the witnesses against him, is, in my opinion, reversible error. United States v Care, 18 USCMA 535, 40 CMR 247 (1969). Cf. United States v Donohew, 18 USCMA 149, 39 CMR 149 (1969); United States v Fortier, 19 USCMA 149, 41 CMR 149 (1969). Without this specific finding on the record, the record is not verbatim as required by law. See my separate opinion in Palos, supra.

I agree, however, with their determination that the sentence must be reassessed because of the erroneous consideration of evidence of punishment under Article 15, Uniform Code of Military Justice, 10 USC § 815. United States v Johnson, 19 USCMA 464, 42 CMR 66 (1970); United States v Worrell, 19 USCMA 487, 42 CMR 89 (1970).