Opinion
Quinn, Judge:
Evidence of two previous convictions, one by summary court-martial and the other by special court-martial, was admitted against the accused at his trial before a military judge sitting as a special court-martial. The question presented by this appeal is whether the evidence was erroneously admitted because the convictions were invalid within the meaning of the decision of the United States Supreme Court in Argersinger v Hamlin, 407 US 25 (1972), which held that an accused is entitled to counsel at a trial at which he is sentenced to confinement.
The right to “assistance of counsel” in “all criminal prosecutions” by the federal government is assured by the Sixth Amendment of the United States Constitution. From time to time, the dimensions of the right have been redefined in decisions of the Supreme Court. Necessarily, this Court adheres to Supreme Court decisions. United States v Tempia, 16 USCMA 629, 37 CMR 249 (1967).
In Argersinger, the Supreme Court rejected the idea that the scope of the right to counsel can appropriately be measured by classification of the particular crime with which the accused is charged as felony, misdemeanor, or petty offense. Instead of looking at the label attached to the offense, the Court looked at the consequence of conviction. It determined that “no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel” or knowingly waives his right to such representation. 407 US at 40. Measured by that standard, the Court concluded that Argersinger’s conviction by a Florida court for an offense described as a petty offense because the authorized maximum confinement was six months and for which he had been sentenced to 90 days in jail was constitutionally invalid as Argersinger had been denied counsel for the trial.
The Uniform Code of Military Justice makes no provision for counsel for an accused in a summary court-[300] martial. Article 27, Uniform Code of Military Justice, 10 USC § 827. See also Manual for Courts-Martial, United States, 1969 (Rev ed), paragraphs 6c and 48b. At the time of the accused’s previous conviction, the Uniform Code provided for the appointment of counsel for special courts-martial, but not necessarily appointment of a lawyer in the sense of being a member of the bar of a federal or state court. Along with the general court-martial, these courts comprise the military criminal court system. Like the criminal courts in the civilian community, they determine guilt of criminal conduct and impose punishments therefor as prescribed by law. They are bound by the same limits of the right to counsel as bind the civilian courts. United States v Tempia, supra. Acceptance of Arger-singer’s percept, however, does not compel the conclusion that accused’s previous convictions were constitutionally invalid.
Counsel is appointed for an accused in a civilian criminal court only if he is financially unable to pay for counsel of his own choice. Gideon v Wainwright, 372 US 335 (1963). In the military, the Uniform Code provides for appointed counsel, without regard to the accused’s financial resources, and appointed counsel is required to serVe even if the accused retains his own lawyer. Article 38(b), UCMJ, 10 USC § 838(b); United States v Jordan, 22 USCMA 164, 46 CMR 164 (1973). This pattern has been extended in practice to situations unmentioned in the Code, such as appointment of counsel for “custodial interrogation,” MCM, paragraph 140a; United States v Decker, 16 USCMA 397, 37 CMR 17 (1966), and appointment of counsel to represent the accused in connection with a lineup in which the accused is required to participate, United States v Adams, 18 USCMA 439, 40 CMR 151 (1969); cf. Kirby v Illinois, 406 US 682 (1972); United States v Wade, 388 US 218 (1967). Considering these extensions of the Code’s counsel provision to situations in which counsel may not have been constitutionally required, because of the accused’s financial resources, it is probable that Congress would provide for appointment of counsel in Argersinger-type cases without regard to the accused’s ability to pay. However, as far as the constitutional right to counsel is concerned, the accused cannot properly maintain that his previous convictions were invalid unless he can demonstrate that he was, like Argersinger, “indigent” and entirely unrepresented by counsel. 407 US at 26.
No evidence in the record of each of the previous convictions indicates that the accused was indigent or unrepresented by counsel. Patently, further inquiry into these matters is essential before it can be said that the previous convictions are constitutionally invalid. If I were to assume compliance with the Uniform Code, the accused would at least have had appointed counsel at the special court-martial trial, unless he had expressly excused such counsel. . Traditionally, the requirements for admission to a particular bar and the authority to practice before a particular court are determined, perhaps primarily, by the legislature of the jurisdiction, federal or state as the case may be, and, secondarily, by the judiciary. Annotation, Power of Legislature Respecting Admission to Bar, 144 ALR 150 (1942); cf. Ex parte Garland, 71 US (4 Wall) 333, 379 (1867). Consequently, if the accused was represented at the special court-martial by counsel having the qualifications prescribed by Congress, the constitutional requirement would be satisfied, notwithstanding counsel was not admitted to practice before a federal civilian court or a state court.
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Opinion
Quinn, Judge:
Evidence of two previous convictions, one by summary court-martial and the other by special court-martial, was admitted against the accused at his trial before a military judge sitting as a special court-martial. The question presented by this appeal is whether the evidence was erroneously admitted because the convictions were invalid within the meaning of the decision of the United States Supreme Court in Argersinger v Hamlin, 407 US 25 (1972), which held that an accused is entitled to counsel at a trial at which he is sentenced to confinement.
The right to “assistance of counsel” in “all criminal prosecutions” by the federal government is assured by the Sixth Amendment of the United States Constitution. From time to time, the dimensions of the right have been redefined in decisions of the Supreme Court. Necessarily, this Court adheres to Supreme Court decisions. United States v Tempia, 16 USCMA 629, 37 CMR 249 (1967).
In Argersinger, the Supreme Court rejected the idea that the scope of the right to counsel can appropriately be measured by classification of the particular crime with which the accused is charged as felony, misdemeanor, or petty offense. Instead of looking at the label attached to the offense, the Court looked at the consequence of conviction. It determined that “no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel” or knowingly waives his right to such representation. 407 US at 40. Measured by that standard, the Court concluded that Argersinger’s conviction by a Florida court for an offense described as a petty offense because the authorized maximum confinement was six months and for which he had been sentenced to 90 days in jail was constitutionally invalid as Argersinger had been denied counsel for the trial.
The Uniform Code of Military Justice makes no provision for counsel for an accused in a summary court-[300] martial. Article 27, Uniform Code of Military Justice, 10 USC § 827. See also Manual for Courts-Martial, United States, 1969 (Rev ed), paragraphs 6c and 48b. At the time of the accused’s previous conviction, the Uniform Code provided for the appointment of counsel for special courts-martial, but not necessarily appointment of a lawyer in the sense of being a member of the bar of a federal or state court. Along with the general court-martial, these courts comprise the military criminal court system. Like the criminal courts in the civilian community, they determine guilt of criminal conduct and impose punishments therefor as prescribed by law. They are bound by the same limits of the right to counsel as bind the civilian courts. United States v Tempia, supra. Acceptance of Arger-singer’s percept, however, does not compel the conclusion that accused’s previous convictions were constitutionally invalid.
Counsel is appointed for an accused in a civilian criminal court only if he is financially unable to pay for counsel of his own choice. Gideon v Wainwright, 372 US 335 (1963). In the military, the Uniform Code provides for appointed counsel, without regard to the accused’s financial resources, and appointed counsel is required to serVe even if the accused retains his own lawyer. Article 38(b), UCMJ, 10 USC § 838(b); United States v Jordan, 22 USCMA 164, 46 CMR 164 (1973). This pattern has been extended in practice to situations unmentioned in the Code, such as appointment of counsel for “custodial interrogation,” MCM, paragraph 140a; United States v Decker, 16 USCMA 397, 37 CMR 17 (1966), and appointment of counsel to represent the accused in connection with a lineup in which the accused is required to participate, United States v Adams, 18 USCMA 439, 40 CMR 151 (1969); cf. Kirby v Illinois, 406 US 682 (1972); United States v Wade, 388 US 218 (1967). Considering these extensions of the Code’s counsel provision to situations in which counsel may not have been constitutionally required, because of the accused’s financial resources, it is probable that Congress would provide for appointment of counsel in Argersinger-type cases without regard to the accused’s ability to pay. However, as far as the constitutional right to counsel is concerned, the accused cannot properly maintain that his previous convictions were invalid unless he can demonstrate that he was, like Argersinger, “indigent” and entirely unrepresented by counsel. 407 US at 26.
No evidence in the record of each of the previous convictions indicates that the accused was indigent or unrepresented by counsel. Patently, further inquiry into these matters is essential before it can be said that the previous convictions are constitutionally invalid. If I were to assume compliance with the Uniform Code, the accused would at least have had appointed counsel at the special court-martial trial, unless he had expressly excused such counsel. . Traditionally, the requirements for admission to a particular bar and the authority to practice before a particular court are determined, perhaps primarily, by the legislature of the jurisdiction, federal or state as the case may be, and, secondarily, by the judiciary. Annotation, Power of Legislature Respecting Admission to Bar, 144 ALR 150 (1942); cf. Ex parte Garland, 71 US (4 Wall) 333, 379 (1867). Consequently, if the accused was represented at the special court-martial by counsel having the qualifications prescribed by Congress, the constitutional requirement would be satisfied, notwithstanding counsel was not admitted to practice before a federal civilian court or a state court.
In his concurring opinion in Argersinger, in which he was joined by Justices Douglas and Stewart, Justice Brennan indicated that appointment as defense counsel of persons who are not lawyers in the traditional sense, but who have sufficient training and capability to render effective assistance as counsel, can satisfy the constitutional requirement for counsel, at [301] least in cases involving minor offensés. The opinion of Justice Powell, which had the concurrence of Justice Rehnquist, also appears to sanction such appointments. Although Justice Powell discussed the issue of counsel in terms suggesting that the right did not operate as extensively against the states under the due process clause of the Fourteenth Amendment as it did against the federal government under the Sixth Amendment, he concluded. that appointed counsel was not required for an indigent accused unless the circumstances of the case indicated there were “complex legal and factual issues.” 407 US at 47. Since Justices Powell and Rehnquist perceive no constitutional requirement for counsel in an Argersinger-type case, manifestly they would regard, as constitutionally proper, appointment of a person to assist the accused, who, while not a lawyer in the sense of being a member of the bar of a federal or state court, is familiar with, and has had training in, the law and practice as regards the charge against the accused. Apparently, therefore, a majority of the Supreme Court discern no constitutional impediment to appointment, for the trial of a minor offense, of a defense counsel who is not a lawyer in the traditional sense. This Court reached that result in United States v Culp, 14 USCMA 199, 33 CMR 411 (1963). Consequently, even if I disregarded the indigency of an accused as a condition to appointment of counsel for both a special and summary court-martial trial at which confinement will be adjudged, the appointed counsel, under Arger-singer, would not have to be a lawyer in the traditional sense; but he would be required, as every counsel is, to render effective assistance. United States v Fisher, 8 USCMA 396, 24 CMR 206 (1967).
Argersinger postulated that the right to counsel is conditioned upon a sentence that “actually leads to imprisonment even for a brief period.” 407 US at 33. The Court’s repeated reference to actual confinement implies that a trial resulting in other types of punishment does not require appointment of counsel for the accused. Military law authorizes a form of limitation on freedom of movement known as restriction. Restriction can be imposed before trial, in lieu of arrest, to insure the accused’s “continued presence” or to deter criminal activity pending disposition of the charge against him. MCM, pargaraph 20b. In the event of conviction, restriction can be imposed by the court-martial as punishment. MCM, 126g and 127c (2). Restriction may also be imposed after conviction and during the pendency of appellate review to assure accused’s presence for “impending execution of a punitive dscharge.” MCM, paragraph 20d(l). In each instance, the name is the same, but the legal significance of the status is different.
Except as the right to counsel exists during “custodial interrogation,” Miranda v Arizona, 384 US 436 (1966), and in the particular situation considered in Escobedo v Illinois, 378 US 478 (1964), the Supreme Court has said that the accused’s right “attaches only at or after the time that adversary judicial proceedings have been initiated against him.” Kirby v Illinois, supra at 688. Thus, pretrial arrest and confinement do not require that the accused be accorded counsel at the time of the imposition of restraint. This Court has held that pretrial restriction is comparable to pretrial arrest and confinement for the purpose of energizing the Government’s obligation to proceed with reasonable dispatch to bring the accused to trial or risk dismissal of the charges against him for denial of his right to a speedy trial. United States v Smith, 17 USCMA 427, 38 CMR 225 (1968). Under Argersinger, confinement as punishment requires counsel; but restriction as punishment has such different consequences that it cannot properly be compared to it for the purpose of energizing the right to counsel.
Confinement removes the accused from his normal military environment ; a sentence to restriction, however, cannot “operate to exempt the person . . . from any military duty.” MCM, paragraph 126g. Sub[302] ject to regulations of the Secretary of the accused’s service, confinement imposed upon an enlisted person above pay grade E-l reduces him automatically to pay grade E-l, Article 58a (a), UCMJ; a sentence to restriction does not have that effect. Confinement may entail hard labor, Article 58(a), UCMJ; restriction requires no labor other than that for regular military duties. Essentially, “a punitive restriction is a ‘deprivation of privileges.’ ” United States v Modessett, 9 USCMA 152, 154, 25 CMR 414, 416 (1958). These significant differences between confinement and restriction convince me that the two punishments are not comparable in severity or stigma. Although at one point in its opinion in Argersinger the Supreme Court declined to rule on whether a sentence providing for punishment other than confinement is affected by its decision, it concluded its opinion with the observation that the “run of misdemeanors [those not ending in actual deprivation of a person’s liberty] will not be affected by . . . [its] ruling.” 407 US at 40. Argersinger clearly postulates that the right to counsel arises only when “imprisonment . . . [is] imposed." Id. As indicated, restriction as punishment bears no resemblance to confinement as punishment. I conclude, therefore, that an accused on trial in a minor military tribunal has no right to appointed counsel when the contemplated sentence includes restriction, not confinement.
Argersinger dealt with the validity of findings of guilty in a case in which the accused was entitled to, but was denied, representation by counsel. This case is concerned with a different question, specifically, the admissibility of evidence of a previous conviction obtained at a trial at which the accused was improperly denied the right to counsel. That question was considered by the Supreme Court in United States v Tucker, 404 US 443 (1972). There, the Court determined that reversible error was committed by the trial judge in the imposition of sentence, when he considered evidence of two previous convictions that were constitutionally infirm because the accused had been unrepresented by counsel at the trial at which each conviction was obtained, and he had not waived the right. The Court’s opinion makes plain that the trial judge’s error in considering evidence of the invalid convictions did not alone require reversal; also to be considered was whether “the sentence . . . might have been different if the sentencing judge had known that . . . the respondent’s previous convictions had been unconstitutionally obtained.” 404 US at 448. Our cases are to the same effect. United States v Johnson, 6 USCMA 320, 20 CMR 36 (1955); United States v Reed, 2 USCMA 622, 10 CMR 120 (1953). Error in the admission of evidence of previous conviction is not itself sufficient to justify reversal; it must also appear there is a fair risk that the evidence influenced the trial court to impose the sentence it did. If prejudice is not apparent, the error is harmless and can properly be disregarded.
Here, the accused was convicted of a 13-day unauthorized absence. The regular maximum punishment for that offense is confinement at hard labor for 6 months and partial forfeitures for the same period. On proof of two or more previous convictions, the allowable punishment is increased to include a bad-conduct discharge. MCM, Table of Maximum Punishments, Section B. As the accused’s sentence includes a bad-conduct discharge, it is obvious that the trial judge gave effect to the previous convictions. Consequently, if either of the convictions is invalid because the accused was deprived of the right to counsel, the sentence must be reassessed. United States v Tucker, supra; United States v Pope, 5 USCMA 29, 17 CMR 29 (1954).
I indicated earlier that further inquiry must be made to determine whether the accused was deprived of his constitutional right to counsel. An inquiry of that kind can better be conducted by the Court of Military Review than by this Court. See United States v DuBay, 17 USCMA 147, 37 [303] CMR 411 (1967). Accordingly, I would return the record of trial to the Court of Military Review for such further inquiry, or if that is undesirable, to reassess the sentence, without consideration of the evidence of previous convictions. Since my brothers do not share my view as to the need for further inquiry, Judge Duncan and I agree that the record of trial must be remanded to the Court of Military Review at least for reassessment of the sentence. Accordingly, the decision of the Court of Military Review as to the sentence is set aside and the case is returned to it for redetermination of the sentence without consideration of the evidence of the summary court-martial conviction.