United States v. Krauser

29 M.J. 1017, 1990 CMR LEXIS 40, 1990 WL 8222

Opinion

OPINION OF THE COURT

KUCERA, Senior Judge:

The record of trial indicates that at a pretrial hearing held in accordance with Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a) (1982) [hereinafter Article 39(a) session] held on 5 July 1986, appellant indicated his intention to be represented by a civilian defense counsel. Appellant expressly excused the civilian counsel from the Article 39(a) session wherein he was represented by his detailed military trial defense counsel. Appellant was arraigned but the selection of trial forum, submission of motions and entry of pleas were deferred until 27 July 1989, the date set for appellant’s trial.

At an Article 39(a) session held on 21 July 1989, appellant again appeared before the court with his detailed military trial defense counsel. At that time, appellant elected to be tried by military judge alone, declined to make any motions and, pursuant to an agreement with the convening authority, he entered his guilty pleas. During the remaining portion of the trial, appellant continued to be ably represented by his detailed military trial defense counsel. The record of trial is silent as to the reasons for the change of trial date and for the failure of the civilian attorney to appear.

To clarify the issue we have admitted the affidavit of appellant’s defense appellate counsel concerning the reasons for the civilian attorney’s failure to appear at appellant’s trial. Having considered said affidavit, we are convinced beyond a reasonable doubt that the appellant could not afford to hire a civilian counsel and decided to proceed to trial on 21 July 1989 with his detailed military trial defense counsel.

On consideration of the entire record, the findings of guilty and the sentence are affirmed.