United States v. Bingham

20 C.M.A. 521, 20 USCMA 521, 43 C.M.R. 361, 1971 CMA LEXIS 672, 1971 WL 12797

• Court: United States Court of Military Appeals
• Decided: April 23, 1971
• Docket: No. 23,771
• Status: Published

Opinions

Opinion of the Court

Quinn, Chief Judge:

Two of the three issues presented by this appeal from a special court-martial conviction were decided adversely to the accused in United States v Sayers, 20 USCMA 462, 43 CMR 302 (1971). The third deals with the sufficiency of the trial judge’s inquiry into the providence of the accused’s plea of guilty to four specifications of unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886, as measured by the requirements of United States v Care, 18 USCMA 535, 40 CMR 247 (1969).

In Care, supra, at page 541, we indicated that before accepting a plea of guilty, the trial judge must, among other things, advise the accused that a plea of guilty waives the “right to a trial of the facts by a court-martial.” Here, no reference was made to this right in terms of the quoted excerpt. However, the accused had earlier been informed, and he acknowledged he understood, that he had the right to trial by a court-martial composed of commissioned officers and enlisted persons, but he elected to be tried by the judge alone and he assured the judge that he had absented himself without authority on the occasions listed in the specifications and he knew he was guilty of those offenses. He was informed, and indicated that he understood, he had the right to plead not guilty, even if he was guilty, and that a plea of guilty was “a form of self-incrimination” which “always results in a finding of guilty.” Finally, he was advised he had a constitutional right “to confront all the witnesses” against him, but there would be “no witnesses to testify against” him if he pleaded guilty because he would “automatically be found guilty on . . . [his] plea alone.”

When the accused is legally entitled to advice as to particular rights, the substance, not the form, of the information imparted to him determines whether he has been properly advised. United States v Mewborn, 17 USCMA 431, 435, 38 CMR 229 (1968). Matching the totality of advice given with the requirement of Care, we are satisfied that the accused was adequately advised, and understood, that a plea of guilty would waive the “right to a trial of the facts by a court-martial.”

The decision of the United States Navy Court of Military Review is affirmed.

Judge DARDEN concurs.