United States v. Tharpe

OPINION OF THE COURT

Upon request by the court members, the military judge instructed on the procedure for reconsideration of sentence. In doing so, he instructed the four member court that reconsideration with a view toward decreasing the sentence could take place only if three of the members voted in favor of reconsideration. The correct rule is that reconsideration should have taken place unless three of the four members opposed it (the number it took to impose the sentence in the case sub judice). Article 52(c), Uniform Code of Military Justice, 10 U.S.C. § 852; paragraph 76d, Manual for Courts-Martial, United States, 1969 (Revised edition). Having clearly established that there was error, we must concern ourselves with the effects of the error and the remedy. Toward that end, a brief review of precedent is appropriate.

Although until 1968 Article 52 required that, except as otherwise provided, sentences were to be determined by the concurrence of two-thirds of the members present, then Article 52(c) provided that all *948other questions were to be decided by a majority vote. Consequently, a majority vote was needed to achieve sentence reconsideration. In 1968, Article 52(c) was changed to provide that “a determination to reconsider a finding of guilty or to reconsider a sentence, with a view toward decreasing it, may be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence.”1 Understandably, this formulation can be quite confusing.2 The logic behind the Codal change, however, is apparent: The requirement for a majority vote to force reconsideration would defeat reconsideration in any case where the dissenters from the original sentence, though fewer than a majority, were more than the one-third or one-fourth of the court. (To put it another way: The same number of votes opposing reconsideration should be required to prevent reconsideration with a view to decreasing the sentence as was required to impose that sentence initially.) Consequently, an accused is entitled to reconsideration of his sentence with a view to decreasing it when it appears that the affirmative votes to reconsider exceed one-third or one-fourth of the members as appropriate.3

Far from being merely an academic problem, this issue has arisen on several occasions in the past. In United States v. Boxdale, 46 C.M.R. 1002 (A.C.M.R. 1972), petition granted and reversed on other grounds, 22 U.S.C.M.A. 414, 47 C.M.R. 351 (1973), the Court per Judge Grimm cured the error by reassessing the sentence. A similar result obtained in United States v. Tobias, 46 C.M.R. 590 (A.C.M.R. 1972). The remedy in these cases appears to be predicated on two earlier unpublished cases. United States v. Mallory and Hall, CM 423622 (A.C.M.R. 25 May 1971) and United States v. Gardner, CM 424524 (A.C.M.R. 26 October 1971). In turn, United States v. Smith, 32 C.M.R. 632 (A.B.R. 1963), seems to be the case upon which the others were based. The remedy, as stated earlier, was jin all situations a reassessment of sentence. However, our examination of these cases indicates a significant distinction between the cited cases and the case at bar. In each of those cases, the military judge (law officer) had instructed on reballoting sua sponte as part of the regular sentencing instructions.4 There is no evidence in those cases that any member desired reconsideration. In the instant case the military judge instructed pursuant to a specific request by the members. This distinction, we believe, is crucial in determining the remedy. Since we have no way of knowing how many of the members favored reconsideration, a rehearing on the sentence is necessary.

The findings of guilty are affirmed. The sentence is set aside and rehearing thereon may be ordered by the same or a different convening authority.