United States v. Alicea-Baez

7 M.J. 989, 1979 CMR LEXIS 600
CourtU.S. Army Court of Military Review
DecidedAugust 23, 1979
DocketCM 437597
StatusPublished
Cited by6 cases

This text of 7 M.J. 989 (United States v. Alicea-Baez) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alicea-Baez, 7 M.J. 989, 1979 CMR LEXIS 600 (usarmymilrev 1979).

Opinion

OPINION OF THE COURT ON RECONSIDERATION

PER CURIAM:

In an opinion dated 11 July 1979 the findings of guilty and sentence in this case were affirmed. On 23 July 1979 the Government filed a motion for reconsideration. No opposition was filed. We granted the motion on 6 August 1979.

Pursuant to Article 69, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 869, The Judge Advocate General has referred to this Court the appellant’s record of conviction by general court-martial for larceny and drunken driving, in violation of Articles 121 and 111, UCMJ, 10 U.S.C. §§ 921 and 911. His sentence to confinement at hard labor for six months, forfeiture of $220.00 pay per month for six months and reduction to the lowest enlisted grade was approved by the convening authority and ordered into execution. We are asked to consider two issues: first, whether it was error for the military judge to deny the appellant’s request for a continuance in order to obtain civilian counsel,1 and second, the appellant’s supplemental assignment of error alleging that the convening authority wrongfully denied the appellant’s request for deferment of confinement.

I

After the military judge advised the appellant of his rights ' to counsel at the Article 39(a), 10 U.S.C. § 839(a) session, the following sequence of events appeared in the summarized record:

The accused at this point stated he would like to have civilian lawyer to represent him. The military judge inquired of the accused when he had decided he wanted a civilian lawyer to which the accused responded that he had decided yesterday. The military judge inquired further into the matter; after fully exploring the matter, the military judge stated that the request for civilian counsel was tardy and late and would not be honored, but the case would proceed as scheduled. Trial counsel made the argument that massive expenditure of government funds had been made to bring witnesses from CO-NUS.

In his Article 38(c), UCMJ, 10 U.S.C. § 838(c), brief, the trial defense counsel stated that he had explained to the appellant all of his rights to counsel prior to the Article 32, 10 U.S.C. § 832 Investigation, that he had continuously represented the appellant through the Article 32 Investigation until the day of trial, and the appellant had related to him that he was satisfied with his representation and wished no other attorney. The record further shows that the appellant was advised of his right to obtain civilian counsel by the Article 32 investigating officer in a letter addressed to him immediately before the investigation was conducted and during the preliminary proceedings of the investigation itself. It was not until the day of trial, some three and one-half months after the completion of the Article 32 Investigation, that the appellant informed his attorney and the court that he had decided he wanted a civilian counsel to represent him.2 There is no indication from the record or any of the allied papers that the appellant had obtained the services of a specifically named civilian attorney, how long the trial would have to be postponed until he retained one, and the time required for the attorney to adequately prepare himself for trial. Moreover, considerable time and expense had been made to secure the presence of witnesses (including the appellant’s father) to testify at trial. [991]*991To postpone the trial to some undetermined date in the future would have posed a considerable hardship on both the Government and those witnesses requested to make the long journey from the United States to the Canal Zone a second time. Although we are aware that an accused’s right to counsel of his choice, military or civilian, is “a most valuable right accorded him by the law,” United States v. Donohew, 18 U.S.C.M.A. 149, 152, 39 C.M.R. 149, 152 (1969); United States v. Kinard, 21 U.S.C.M.A. 300, 45 C.M.R. 74 (1972), we are satisfied by the facts of this case that the appellant was aware of his right to secure civilian counsel of his choice and had ample opportunity to do so before the date of his trial. We cannot say, therefore, that the military judge abused his discretion by denying the appellant’s request for a continuance to obtain civilian counsel. Paragraph 58, Manual for Courts-Martial, United States, 1969 (Revised edition); Article 40, Uniform Code of Military Justice, 10 U.S.C. § 840; United States v. Thomson, 3 M.J. 271 (C.M.A.1977); United States v. Dunks, 1 M.J. 254 (C.M.A.1976); United States v. Kinard, supra; United States v. Furgason, 6 M.J. 844 (N.C.M.R.1979). In his sound discretion the military judge may have considered, among other factors, that the appellant’s request was made in an attempt “to vex the Government with needless delay in order to avoid or put off the consequences of his misconduct.” See United States v. Kinard, supra at 79; United States v. Daniels, 11 U.S.C.M.A. 52, 55, 28 C.M.R. 276, 279 (1959).

II

By his supplemental assignment of error appellant urges us to reassess the sentence as to forfeitures and reduction adjudged for the reason that the convening authority wrongfully denied the appellant’s request for deferment of confinement.

On 7 August 1978, five days after he was sentenced, the accused executed a written request for deferment of that portion of the sentence concerning confinement until such time as the convening authority should take action. In his request the appellant stated that he had twenty-six months creditable service, was promoted to the grade of SP4, was being considered for promotion to E-5, was the distinguished graduate in his AIT class at Fort Dix for which he had received a letter of commendation, that his superiors and peers in the motor pool regarded him as trustworthy and reliable, that he graduated at the top of his class in the Primary Non-commissioned Officer Course, and that he would submit a petition for clemency.

The convening authority personally endorsed “REQUEST DENIED! ANSON” upon appellant’s application. Appellant contends that such summary denial constituted an abuse of the convening authority’s discretion.

Citing paragraph 88f, Manual for Courts-Martial, United States, 1969 (Revised edition), appellate defense counsel argues that the request should have been granted because appellant was not a danger to the community, a likely flight risk, or a person who should be incarcerated for other reasons. The general rule sought by the appellant, then, would provide for release upon request unless precluded by one of the exceptions enumerated in the Manual, and would require the convening authority to delineate reasons for any denial.

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Bluebook (online)
7 M.J. 989, 1979 CMR LEXIS 600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alicea-baez-usarmymilrev-1979.