United States v. Brown

5 M.J. 454, 1978 CMA LEXIS 9758

• Court: United States Court of Military Appeals
• Decided: October 16, 1978
• Docket: No. 33,997; NCM 76-2400
• Status: Published

Opinions

Opinion of the Court

PER CURIAM:

The appellant was charged with wrongful possession of heroin, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. Upon accepting his plea of guilty, the military judge sentenced the appellant to a bad-conduct discharge, confinement at hard labor for 10 months, and forfeiture of all pay and allowances, which sentence was modified by the convening authority to reduce the period of confinement to 8 months. The United States Navy Court of Military Review has affirmed the findings and the sentence.

The staff judge advocate’s post-trial review was conducted at the Marine Corps Air Station, El Toro, Santa Ana, California. Because the appellant’s trial defense counsel was, at the time of the completion of the review, undergoing treatment for alcoholism at the naval hospital in Long Beach, California, the staff judge advocate served a copy of his review upon a substitute defense counsel locally, in attempted compliance with the mandate of United States v. Goode, 1 M.J. 3 (C.M.A. 1975).

The substitute defense counsel acknowledged receipt of the review and filed a response thereto, the first paragraph of which is pertinent to this case on appeal:

a. The undersigned did not participate in this trial and has no knowledge of this case. Consequently any review by the undersigned can only be as another review officer and not as a defense counsel who would have known the accused, facts and circumstances outside the record of trial or as a participant in the actual trial proceedings. It is felt that it is only the defense counsel who actually participated in the trial who could properly comment on subject advice as a defense counsel.

Absent any indication in the record that the substitute counsel ever contacted the appellant,¹ he failed to enter into an attorney-client relationship with the appellant,² and thus, the substitute defense counsel improperly purported to represent the appellant at that stage of the proceedings.³ United States v. Iverson, 5 M.J. 440 (C.M.A. 1978).

The decision of the United States Navy Court of Military Review is reversed. The record is returned to the Judge Advocate General of the Navy for remand to an appropriate authority to determine the present availability of the trial defense counsel. United States v. Iverson, supra. If found to be available to continue to perform in the attorney-client relationship with the appellant, he will be served with the post-trial review and afforded the opportunity to file a response thereto. United States v. Goode, supra. If found actually not available, a substitute defense counsel will be appointed to enter into an attorney-client relationship with the appellant and to perform as the appellant’s defense counsel for the purposes of Goode, United States v. Iverson, supra, and for any other appropriate post-trial activity on behalf of the appellant. United States v. Palenius, 2 M.J. 86 (C.M.A. 1977). In the event the proper authority shall conclude that this is impracticable, he or she may, in his or her discretion, dismiss the charges against the appellant.

1 . In fact, the quoted paragraph of the Goode response indicates just the opposite.

2 . United States v. Iverson, 5 M.J. 440 (C.M.A. 1978); United States v. Brady, 8 U.S.C.M.A. 456, 24 C.M.R. 266 (1957); United States v. Miller, 7 U.S.C.M.A. 23, 21 C.M.R. 149 (1956). See United States v. Larneard, 3 M.J. 76 (C.M.A. 1977); United States v. Palenius, 2 M.J. 86 (C.M.A. 1977).

3 . If the trial defense counsel was not actually unavailable, the Government improperly interfered with the existing attorney-client relationship between the trial defense counsel and the appellant. United States v. Iverson, supra. The basis for the conclusion that the trial defense counsel could not be served with the review was the combination of his physical location in another place in California, an adverse opinion of some sort, of a Navy psychiatrist, regarding the defense counsel’s emotional health, and his then hospitalization for treatment of alcoholism. The Court expresses no opinion on whether these factors combine to have rendered the defense counsel actually unavailable to continue to perform in the attorney-client relationship with the appellant. United States v. Iverson, supra.