dissents:
For the reasons' I have recounted at length in United States v. Caruth, 4 M.J. 924 (A.C.M.R.1978) (en banc), United States v. Snyder, CM 435858 (A.C.M.R. 28 April 1978) (en banc) (unpublished companion case to Caruth, supra), United States v. Onan, 5 M.J. 514 (A.C.M.R. 24 April 1978), and United States v. Currie, CM 436326 (A.C.M.R. 23 May 1978) (unpublished), I respectfully disagree with the majority in this case.
After convicting the appellant of offenses which all parties agreed carried a maximum permissible sentence of, inter alia, a dishonorable discharge and 12 years confinement, the trial judge sentenced appellant to a bad-conduct discharge, confinement for eight months and 15 days, and the usual accessory punishments. This comparatively favorable treatment was occasioned, in my estimation, by the announced agreement the trial judge had with counsel in this jurisdiction to the effect that whenever they pled an accused guilty, without a prior agreement with the convening authority, he, the trial judge, would reward their client, irrespective of the severity of the offenses involved, with a much lighter sentence.*
Additionally, the acceptance of appellant’s plea is strewn with misinformative injunctions concerning the effect of his plea.
I would reverse.
The terms of the proposal, as originally announced by the trial judge in late 1976, included a requirement that the guilty plea be entered on arraignment. See facts set forth in United States v. Caruth, supra, United States v. Snyder, supra, and United States v. Currie, supra. That requirement apparently was not stringently enforced, however, as it was not imposed in this case. Appellant initially pled not guilty before this judge on 27 April 1977, which plea the appellant changed to guilty on 31 May 1977. It appears from this, and other like cases, that the requirement that an accused not deal with the convening authority was of more importance to the trial judge than the entry of the guilty plea on arraignment. It is also interesting to note that on 27 April 1977 (in accordance with this judge’s fetish for forms), after the appellant had entered his plea, had selected trial by a court with members and had expressed a desire to be tried at a common trial with two co-accused, the trial judge admitted into evidence a form which included assertions by the accused that his choice in these particulars was irrevocable. The judge not only admitted this document, but he questioned the appellant at length about its meaning and effect. Nevertheless, when the trial recommenced on 31 May 1977, and the appellant selected trial by judge alone and a trial without his criminal companions, not a word was uttered or explanation requested concerning the “irrevocability” of the appellant’s earlier choices. These machinations are worthy of the Churchillian description relative Russia: “It is a riddle wrapped in a mystery inside an enigma.”