(concurring):
I join with the majority in the view that the convictions of conspiracy to rob have become final and that it is inappropriate for this Court to further entertain issues relating to these guilty findings.
I believe it important, however, to point out that if appellant’s assertion of plea improvidency were a proper matter for consideration at this stage, it should be fully briefed and argued by both sides before deciding the issue. The Court should not be impelled to action on the basis of error conceded, as has been done by the government’s counsel in one of these cases. The concept that a plea of guilty may be set aside, based upon the accused’s misunderstanding of the allowable sentence, is not new. Extension of that principle to the instant fact situation, however, is a significant departure from past practices and warrants a full airing of competing viewpoints.
The idea that a plea of guilty once entered, accepted, and resulting in a conviction could and possibly should be overturned because of a misunderstanding as to sentence was first encountered within the military justice framework 20 years ago in the opinion of Chief Judge Quinn where he concurred in the result in United States v. Hamill, 8 U.S.C.M.A. 464, 24 C.M.R. 274 (1957). At that stage of the law, there was a real question whether guilty plea findings should be set aside at the appellant level without an averment of innocence by the accused. Chief Judge Quinn fully addressed that issue, citing Judge Learned Hand as a leading proponent of the position that findings of guilty should remain intact without an assertion of innocence. Chief Judge Quinn’s view, which became the military rule, was that “in an appropriate case the interest of justice is better served by *1118setting aside the plea without regard to whether the supporting affidavit contains an averment of innocence.” In Hamill there was no question of the accused’s guilt. He had pleaded guilty pursuant to a pretrial agreement and was not claiming innocence on appeal. When pleading guilty, however, there was a misunderstanding with respect to the sentence action the convening authority was supposed to take as part of the plea bargain. Although the Court found that this mistake was such that it could have induced the accused’s plea of guilty, it disposed of the case by permitting appropriate lower authority to bring the sentence within the terms understood by the accused when he entered his plea. Reduction of the sentence continued to be the remedy for the ensuing years. For example, in United States v. Zemartis, 10 U.S.C.M.A. 353, 27 C.M.R. 427 (1959) the accused was informed at trial that the maximum sentence for the offense to which he was pleading guilty did not include a bad conduct discharge. When the trial court properly awarded a punitive discharge by application of one of the clauses permitting additional punishment in Section B, Table of Maximum Punishments, par. 127, Manual for Courts-Martial, 1951, the Court of Military Appeals chose to affirm the decision of a board of review which disapproved the bad conduct discharge rather than overturning the findings.
It was a departure, then, in 1968 when the Court of Military Appeals set aside a finding of guilty due to a possible misunderstanding of the maximum sentence. United States v. Turner, 18 U.S.C.M.A. 55, 39 C.M.R. 55 (1968). The subsequent cases of United States v. Towns, 22 U.S.C.M.A. 600, 48 C.M.R. 224 (1974) and United States v. Harden, 1 M.J. 258 (1976) have followed this course rather than reducing the sentence. Until recently, however, that action had never been applied to the instant fact situation, where any possible misunderstanding of sentence limits has resulted from an after the fact disapproval of one or more of the findings of guilty, thus reducing the aggregate permissible maximum punishment. I am not unmindful of the significant step taken by the United States Court of Military Appeals in its summary disposition reversing the companion case of United States v. Lynch, 2 M.J. 214 (1977). That action, however, was not a reasoned decision based on a full airing of competing ideas and viewpoints. It was, instead, based on a concession of error by government counsel. Before further extending the concept embodied in Turner, Towns and Harden, serious thought should be given to whether justice is, in fact, better served by such a course. We would all do well to reconsider the words of Judge Hand as quoted in Hamill, supra:
“. . . he [the accused] has twice admitted all the facts constituting the crime and he still does not repudiate his admissions. A person indicted for crime may of course insist that only a jury shall decide his guilt; but he must at least deny that he is guilty; he must tender an issue. In the case at bar whether or not Paglia has any ground for relief as to his sentence, surely he has none for withdrawing his plea. He is not entitled to gamble upon the outcome of a trial in which he could succeed only by repudiating what he has twice conceded and does not now disavow. Justice is not a game; there is no constitutional right to ‘throw dust in a juryman’s eyes, or hoodwink a judge who is not overwise.’ So far then as the motion was to set aside the plea of guilty and permit a plea of not guilty to be substituted, it is contrary to principle, and, as it happens, is also contrary to the only precedence that we have found.” United States v. Paglia, 190 F.2d 445 (CA 2nd Cir.) (1951).
It may no longer be contrary to precedent but the principle is still there.
Every trial judge, today, carefully follows the precept of United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969) and, before accepting a plea of guilty, he establishes thoroughly on the record that the accused knowingly, intelligently and consciously waives his rights against self-incrimination, trial of the facts by court-mar*1119tial, and confrontation by and cross-examination of adverse witnesses. He further satisfies himself that the accused has pleaded guilty not only in the hope of securing a lenient sentence but because in his own mind he is guilty, with facts to support that conclusion. Finally, he establishes that the accused pleads with the knowledge that even though he believes he is guilty he has a moral right to plead not guilty and place upon the prosecution the burden of establishing his guilt by legal and competent evidence beyond a reasonable doubt. When we overturn findings of guilty that are based on such carefully arrived at pleas and do it not because the accused now claims innocence as well as error, or because of unkept promises by the government which prompted the plea but merely because we, at the appellate level have reduced the number of offenses and the aggregate maximum sentence has, accordingly, been diminished, we should consider whether we may be doing irreparable harm to the system of criminal justice. The government, the accused and society in general should be able to rely with some degree of certainty on the decisions of our courts at both the trial and appellate levels. When findings and precedent are blithely overturned without competing interests being fully and fairly represented, then our system may stop bending and finally break.
As stated at the outset, I concur with the majority in holding that the remaining findings of guilty in these cases have become final. I also concur with their view on reassessment and join with them in their action on the sentence.