
    UNITED STATES, Appellee v DONALD D. HEASTON, Private, U. S. Army, Appellant
    19 USCMA 281, 41 CMR 281
    
      No. 22,531
    March 6, 1970
    
      Colonel Daniel T. Ghent and Lieutenant Colonel Charles W. Schiesser were on the pleadings for Appellant, Accused.
    
      Colonel David T. Bryant, Major Edwin P. Wasinger, and Major William A, Pope, II, were on the pleadings for Appellee, United States.
   Opinion of the Court

Darden, Judge:

The appellant’s conviction for housebreaking, larceny, wrongfully possessing and transferring morphine, in violation of Articles 130, 121, and 134, Uniform Code of Military Justice, 10 USC §§ 930, 921, and 934, resulted from his pleas of guilty. He was given a sentence that included a bad-conduct discharge, total forfeitures, and confinement at hard labor for one year.

The single question before this Court is whether the appellant was prejudiced by the law officer's failure to instruct the court members orally on sentencing procedures. Such advice is included in Appellate Exhibit III that was handed to the president of the court after being examined by counsel for both sides. Perhaps the written advice was considered and followed. But, without more, we cannot be sure. United States v Pryor, 19 USCMA 279, 41 CMR 279 (1970).

Accordingly, the decision of the Court of Military Review as to sentence is reversed. The record of trial is returned to the Judge Advocate General of the Army. A rehearing on the sentence may be ordered.

Judge Ferguson concurs.

Quinn, Chief Judge

(dissenting):

As the majority note, the sentence procedure followed in this case was the same as that in United States v Pryor, 19 USCMA 279, 41 CMR 279 (1970). It is appropriate to note also that, while the accused was subject to a dishonorable discharge and confinement at hard labor for thirty-six years, the court-martial imposed a sentence including a bad-conduct discharge and confinement at hard labor for one year. The leniency of the sentence (United States v Pierce, 19 USCMA 225, 41 CMR 225 (1970)), and the reasons specified in my dissent in Pryor, lead me to conclude that the accused was not prejudiced by the irregular sentence proceedings. I would, therefore, affirm the decision of the Court of Military Review.  