United States v. Iverson

2 M.J. 489, 1975 CMR LEXIS 649

• Court: U.S. Army Court of Military Review
• Decided: December 31, 1975
• Docket: CM 433471
• Status: Published

Opinions

OPINION OF THE COURT

DONAHUE, Judge:

The appellant was convicted of four violations of Article 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892. The approved sentence is reflected above.

The court-martial that tried the appellant was convened by the Commanding General, Fort Carson and 4th Infantry Division (Mechanized). Because he and his staff judge advocate were disqualified from conducting the post-trial review and action, those duties were performed by the Staff Judge Advocate and Commanding General, 1st Infantry Division and Fort Riley. The appellant’s trial defense counsel remained assigned to Fort Carson during the post-trial review period and the appellant was transferred to the United States Disciplinary Barracks, Fort Leavenworth.

On 6 June 1975, the post-trial review was furnished to Captain Charles B. Armstrong, the Chief Defense Counsel at Fort Riley. On 11 June 1975, he certified that “[hjaving knowledge of my right to submit matters to the convening authority in explanation or rebuttal to the matters contained therein, I do not desire to do so.” In an appellate affidavit, Captain Armstrong stated that he was asked to act as defense counsel for the appellant for the purpose of examining the record of trial and the review of the staff judge advocate and that he did perform those duties. He also stated that he had had no earlier connection with the case, had no communication with the appellant, had no knowledge that any convening authority had detailed him to act as appellant’s counsel and had never been specifically requested as counsel by the appellant.

The appellant avers that he was denied the rights established by United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975). After considering this assignment of error and others that we do not discuss, we affirm.

In Goode the United States Court of Military Appeals directed that, on and after May 15,1975, a copy of the post-trial review “be served on counsel for the accused with an opportunity to correct or challenge any matter he deems erroneous, inadequate or misleading, or on which he otherwise wishes to comment.” In a footnote the court stated that “[cjompliance with this requirement will not be sufficient cause to extend the 90-day period in cases subject to the rule established in Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974).” The reason for the Goode rule was that there had been so many complaints alleging the misleading nature of certain reviews.

In Goode the Court of Military Appeals had no occasion to consider appropriate procedures for cases where either the trial defense counsel was no longer available at the installation where the trial took place or where, as here, the post-trial review and action was by a new jurisdiction. We can safely assume that the Court of Military Appeals would approve reasonable, good faith, alternatives in cases where either of the problems mentioned above made service on the trial defense counsel impracticable.

In United States v. Maslinski, 2 M.J. 399, 51 C.M.R. 350 (A.C.M.R. 26 September 1975) we directed a convening authority to designate a counsel for an appellant whose trial defense counsel had been separated from the service. In the instant case, the new convening authority¹ designated the jurisdiction’s chief defense counsel to perform the Goode functions, which he did.

We are mindful of the fact that an attorney-client relationship was not consummated to the extent of acceptance of Captain Armstrong as his attorney by the appellant or even of an exchange of communications between the two.² Although a complete relationship must be developed for representation during the trial itself, we do not believe that the Court of Military Appeals intended such a relationship to be a condition precedent to compliance with Goode. Not only would such a requirement do nothing to enhance the rationale behind Goode, but mere refusal by an accused person to enter the relationship would throw the proverbial monkey wrench into the machinery of justice.

We note that although the appellant complains of the procedure followed, he has brought to our attention in neither briefs nor oral argument any matter in the post-trial review “[which] he deems erroneous, inadequate or misleading, or on which he otherwise wishes to comment.” United States v. Goode at 23 U.S.C.M.A. 370, 50 C.M.R. 4, 1 M.J. 6.

The findings of guilty and the sentence are affirmed.

Senior Judge JONES concurs.

1 . In the absence of any indication to the contrary, we presume regularity in the designation of Captain Armstrong.

2 . In this respect the relationship between Captain Armstrong and the appellant resembles the relationship between a substantial number of appellants and the attorneys of the Defense Appellate Division. Although that Division routinely sends letters to appellants announcing the appointment of specific attorneys as their counsel, many of the letters are not received by the clients and are subsequently returned by the postal authorities with “unable to locate” notations.