United States v. Polomski

WATKINS, Judge, with whom Senior Judge McKAY and Judge WERNER

join, concurring in the result:

I agree in principle with the majority holding that, in a judge-alone, guilty-plea general court-martial case it is error for the military judge to impose a fine in addition to forfeiture of all pay and allowances where he has failed during the providence inquiry to advise the accused that a fine constitutes an authorized element of punishment. I would make clear, however, that an error of this nature must be tested for prejudice and that the remedy of sentence modification is neither required nor appropriate in every such instance. In certain circumstances, such as those which existed in United States v. Shirley, 16 M.J. 567 (A.C.M.R.), petition granted, 17 M.J. 66 (C.M.A.1983) (where the accused was clearly on notice that a fine was an authorized element of punishment by virtue of having included a clause to that effect in his pretrial agreement with the convening authority), the error is legally harmless in that one cannot seriously argue that the pleas of guilty were not provident or that the accused’s due process rights were limited or abridged. See generally Article 59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a) (1976); United States v. Dinkel, 13 M.J. 400 (C.M.A.1982); United States v. Griego, 10 M.J. 385 (C.M.A.1981); United States v. Hinton, 10 M.J. 136 (C.M.A.1981); United States v. Passini, 10 M.J. 108 (C.M.A.1980); United States v. Walls, 9 M.J. 88 (C.M.A.1980).