United States v. Mack

9 M.J. 300, 1980 CMA LEXIS 10533
CourtUnited States Court of Military Appeals
DecidedOctober 6, 1980
DocketNo. 38,515; CMR 438413
StatusPublished
Cited by96 cases

This text of 9 M.J. 300 (United States v. Mack) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Mack, 9 M.J. 300, 1980 CMA LEXIS 10533 (cma 1980).

Opinions

[304]*304 Opinion

EVERETT, Chief Judge:

On April 24 and May 16, 1979, appellant was tried before a general court-martial at Fort Ord, California, by a military judge sitting alone. After pleas of guilty to possession and sale of marihuana and not guilty to possession and sale of cocaine, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, the military judge found the appellant guilty of all charges. The judge sentenced the appellant to a bad-conduct discharge, 8 months’ confinement, total forfeitures, and reduction to the grade of Private E-l. The sentence was approved by the convening authority. On December 31,1979, the United States Army Court of Military Review summarily affirmed the findings and sentence as approved. We granted review of this single assigned issue:

WHETHER THE MILITARY JUDGE ERRED TO THE PREJUDICE OF THE APPELLANT BY ADMITTING INTO EVIDENCE PROSECUTION EXHIBIT 8 (RECORD OF NONJUDICIAL PUNISHMENT UNDER ARTICLE 15, UCMJ) DURING THE SENTENCING PORTION OF TRIAL?

I

During the presentencing stage trial counsel offered in evidence as prosecution exhibit 8 a completed DA Form 2627, headed “Record of Proceedings under Article 15, UCMJ.” It reflected that on July 7, 1978, the appellant had agreed to accept nonjudicial punishment under Article 15, UCMJ, 10 U.S.C. § 815, for being derelict in performing guard duties, and had received as punishment a reduction to the grade of Private First Class; forfeiture of $110.00 pay; restriction “to the company area, place of duty, place of worship, and the consolidated dining facility for a period of seven (7) days”; and the performance of extra duty for a week.

The defense counsel declined to offer any objection to this record when he was asked specifically by the military judge if he had seen the Article 15 exhibit and wanted to object to it. Absent any objection by the defense, prosecution exhibit 8 was admitted in evidence by the military judge.

However, the appellate defense counsel now complains that the record of prior Article 15 punishment should not have been admitted for sentencing purposes at appellant’s court-martial since no evidence in writing or otherwise established on the record that appellant had validly waived his statutory right to refuse the Article 15 punishment and thereby compel either dismissal of the charges or trial by court-martial. It is argued that, before the appellant could have waived his right, he had to be apprised of the ramifications of accepting non judicial punishment, including the fact that the Article 15 record could be used against him in subsequent criminal proceedings. Moreover, only after the appellant had conferred with counsel could he execute a valid waiver of rights; and the “check block advice” found on the DA Form 2627 did not suffice to establish an affirmative waiver of the right to demand trial by court-martial, instead of accepting nonjudicial punishment under Article 15.

Accordingly, appellate defense counsel maintains that prosecution exhibit 8 was inadmissible, because it did not comply with the counsel and waiver requirements set forth in United States v. Booker, 5 M.J. 238 (C.M.A.1977), vacated in part, 5 M.J. 246 (C.M.A.1978), and explained in United States v. Mathews, 6 M.J. 357 (C.M.A.1979). He submits also that the appellant was prejudiced by the erroneous admission of the Article 15 record, since this may have induced a heavier sentence. Therefore, counsel asks that appellant’s sentence be reassessed on account of this alleged error.

We have carefully evaluated this argument in light of our own precedence and recent Supreme Court decisions concerning the right to the assistance of counsel. We conclude that here receipt in evidence of the record of non judicial punishment was not error.

[305]*305II

The Sixth Amendment of the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” The Framers of the Bill of Rights, when originally drafting this provision, probably contemplated only “the right of an accused in a criminal prosecution in a federal court to employ a lawyer to assist in his defense.” Scott v. Illinois, 440 U.S. 367, 370, 99 S.Ct. 1158, 1160, 59 L.Ed.2d 383 (1979). However, for almost half a century the right to counsel has been given a broader construction, since “[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.”1 Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). In Powell, the Supreme Court extended the right to counsel to indigent defendants in a capital case and held that, in view of the circumstances of that case, the trial court’s failure to afford the defendants reasonable time and opportunity to secure counsel constituted a denial of due process. The Court further held that the dire circumstances were such that it made

the necessity of counsel ... so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment. ... To hold otherwise would be to ignore the fundamental postulate, already adverted to, “that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.”

Id. at 71-72, 53 S.Ct. at 65, quoting from Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780 (1898). Even though Powell refused to decide whether the right to counsel existed in noncapital cases, this landmark decision later provided the rationale for broadly extending the scope of the right to counsel.

The Supreme Court next made counsel available to indigent defendants in noncapital cases in the Federal courts. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). After retreating in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942),2 the Supreme Court regained its forward momentum in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which relied on Powell in ruling that any indigent defendant is entitled to the assistance of counsel in a felony trial— whether for a federal or state offense. The Supreme Court deemed it “fundamental and essential to a fair trial” that one so accused be given appointed counsel. Id. at 342, 83 S.Ct. at 795.

In 1967, in the case of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, the reach of the Sixth Amendment was extended to prohibit the use of felony conviction records of uncounseled defendants [306]*306“to support guilt or enhance punishment for another offense.” Id. at 115, 88 S.Ct. at 262.

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9 M.J. 300, 1980 CMA LEXIS 10533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mack-cma-1980.