United States v. Meck

ORSER, Judge

(concurring in the result):

Though I concur with Judge Herman’s conclusion that in the instant circumstances the accused was not prejudiced by the military judge’s failure to limit the maximum confinement to that imposable for violating Article 92, Code, supra, I must disassociate myself from his assumption for the sake of discussion that the judge’s action constituted error on the basis of United States v. Courtney, 24 U.S.C.M.A. 280, 51 C.M.R. 796, 1 M.J. 438 (1976). Our recent cases of United States v. De La Fuente, 2 M.J. 668 (A.F.C.M.R. 16 September 1976); United States v. Wilson, 2 M.J. 683 (A.F.C. M.R. 15 October 1976); and especially United States v. Sasportas, 2 M.J. 676 (A.F.C.M.R. 23 September 1976) (where, as here, trial defense counsel objected to the Article 134 manner of charging), constitute a clear declaration that in cases tried before Courtney was decided, calculation of the maximum confinement in terms of Article 134 was not error. These cases stand for the proposition that Courtney, and the other cases of the Court of Military Appeals containing related issues, have only prospective application to the matter of guilty pleas *312and to the sentencing issue of this case as well. See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Since in this case, the sentence imposed by the court was based upon the correct calculation of the maximum punishment applicable at the time of sentence,* no error requiring sentence reassessment occurred. United States v. Sasportas, supra; see United States v. Frangoules, 1 M.J. 467 (3 September 1976).

I must also record my disagreement with Judge Herman’s conclusion that the sentencing argument of the trial counsel was improper on the basis of United States v. Mosely, 24 U.S.C.M.A. 173, 51 C.M.R. 392,1 M.J. 350 (1976). Though concededly the government counsel’s quoted comments seem to ask for a sentence that would have a consequential deterrent effect on others, in total context I do not construe his remarks as calling for an increase in punishment beyond what was warranted by the evidence in order to achieve that purpose. United States v. Mosely, supra; United States v. Davic, 1 M.J. 865 (A.F.C.M.R. 18 May 1976), pet. denied (6 August 1976).

BUEHLER, Senior Judge, not participating.

United States v. Walter, 20 U.S.C.M.A. 767, 43 C.M.R. 207 (1971).