United States v. Engle

28 M.J. 299, 1989 CMA LEXIS 2387, 1989 WL 66112

• Court: United States Court of Military Appeals
• Decided: June 22, 1989
• Docket: Nos. 61,989, 62,073 and 61,941; NMCM 81 2952, 83 3596 and 82 1309
• Status: Published

Opinion

PER CURIAM:

In each of these cases, appellate defense counsel have submitted motions to withdraw the respective petitions for grant of review which are predicated on the untimeliness of the petitions and the execution of punitive discharges whereunder each appellant was separated from the Naval Service. However, in none of these instances did the accused who had submitted the petition for review authorize its withdrawal.

Insofar as counsel rely on the execution of the discharge, we find no basis for their motions to withdraw. Nothing in Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867, purports to require that an accused who has petitioned for review still be a member of the armed services at the time he submits his petition. Admittedly, under the Uniform Code, a discharge is not to be executed until appellate review is completed, Art. 71(c), UCMJ, 10 U.S.C. § 871(c), but the execution of the discharge does not deprive the Court of jurisdiction to grant a petition for review.

With respect to untimeliness of the petitions, we appreciate the concern of appellate defense counsel that, as “officers of the Court,” they should seek to assure that only meritorious pleadings are filed in our Court. Nonetheless, we are convinced that, even with the best of motives, a defense counsel should not place himself in a position contrary to that of his client, if this can be avoided. Cf. United States v. Grostefon, 12 M.J. 431 (CMA 1982). The dates of service of decisions by the Courts of Military Review and of the filing of petitions for review in our Court are matters of record open to appellate government counsel and to the personnel of our Court. The Government is free to move to dismiss such petitions for untimeliness; and we can do so on our own motion. The filing of an untimely petition is not analogous to a fraud on the Court or a misrepresentation, in which instance counsel must intervene even at the risk of being at odds with the client.

Accordingly, we conclude that, unless he has obtained permission from his client to do so, an appellate defense counsel should not on his own initiative move to withdraw a petition for review. Although in some instances this may result in his preparing a brief in a case which ultimately will be dismissed for late filing, we believe this result is preferable to the loss of confidence in an appellate defense counsel who has taken a position hostile to the interests of his client.

Under the circumstances here, the motions to withdraw are denied in each case because of a failure to show that the respective appellants concurred in the motion. However, since each petition was filed in an untimely manner, the Court on its own motion dismisses each of the petitions for grant of review.