United States v. Miller

2 M.J. 767, 1976 CMR LEXIS 900

• Court: U.S. Army Court of Military Review
• Decided: February 27, 1976
• Docket: SPCM 11424
• Status: Published

Opinions

OPINION OF THE COURT

COOK, Judge:

■ The appellant was tried for an attempt to sell marijuana (a violation of Article 80, Uniform Code of Military Justice, (UCMJ), (10 U.S.C. § 880)), for wrongful possession of marijuana and for the wrongful introduction of marijuana into a military post (these are both violative of Article 134, UCMJ (10 U.S.C. § 934)). Although he plead not guilty to all charges, appellant was found guilty of the attempted sale and of the possession and was sentenced to the approved sentence noted above.

The courtroom portion of appellant’s trial, which was conduced in Mannheim, Germany, was concluded on 14 April 1975. His appointed defense counsel, who acted as his sole legal representative throughout the trial, was Captain Pangburn. Shortly after the termination of the trial, Captain Pang-burn was reassigned to Fort Gordon, Georgia.

The staff judge advocate’s review, required by Article 65(b), UCMJ, and paragraph 85h, Manual for Courts-Martial, United States, 1969 (Revised edition) (MCM 1969 (Rev), was completed on 6 June 1975. On 10 June 1975, Captain Sano, the Chief Defense Counsel in the staff judge advocate’s office, “was served with the post-trial review and was requested to sign for its receipt, which was accomplished. No notification was given reference the Miller post-trial review to Captain Pangburn.”¹ Captain Sano submitted nothing in response to this service other than an acknowledgement of receipt. The convening authority took his action on 16 June 1975.

Appellant contends that he was substantially prejudiced by the failure of the staff judge advocate to comply with the mandate of United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975), in that a copy of the post-trial review was served on someone other than his trial defense counsel.

The right of a defendant to be represented by counsel is basic to the military justice system.² “The right to services of counsel is substantial and extends both to the pretrial and the trial proceedings.”³ Further, “a defense counsel’s duty to represent an accused does not end with the court-martial findings.”⁴ In point of fact, paragraph 48i, MCM 1969 (Rev), specifies five separate tasks under the heading “Counsel for the Accused- — Duties After Trial.” (Emphasis added).

It was precisely for the purpose of enabling the defense counsel to more effectively perform some of these post-trial duties that two of the precursor cases to United States v. Goode, supra, strongly recommended the adoption of the practice of serving a copy of the post-trial review on counsel for the accused.⁵ The court’s opinion in United States v. Goode, supra, has added another post-trial task for the defense counsel to perform, that is, to comment upon the post-trial review.

The military justice practice does not permit a system of substitution of appointed counsel at the whim of the convening authority.⁶ And while entitlement to a particular counsel is not absolute,⁷ “(o)nce entered into, the relationship between the accused and his counsel may not be severed or materially altered for administrative convenience.” ⁸

As Captain Pangburn’s “relief” as defense counsel was for the same administrative convenience as was condemned in United States v. Murray,⁹ i. e., reassignment orders, that explanation will not suffice as a reason to replace him with Captain Sano.¹⁰ No good cause having been shown for disturbing this attorney-client relationship, we need not test for prejudice.¹¹

Assuming arguendo that Captain Pangburn’s relief was for good cause, the manner of the substitution of Captain Sano made it ineffective. As the United States Court of Military Appeals said in United States v. Miller, 7 U.S.C.M.A. 23, 21 C.M.R. 149 (1956):

“There is more to creating the relationship of attorney and client than the mere publication of an order of appointment, and we have so suggested in an earlier opinion. An accused’s right to a counsel of his own choice, and the necessity of a finding that he has consented to representation by appointed counsel, was recognized by this Court in United States v. Goodson, 1 U.S.C.M.A. 298, 3 C.M.R. 32, where we said: ‘He [the accused] is entitled to select counsel of his own choice, and may object to being defended by the person appointed if he desires to do so.’ The relationship between an attorney and client is personal and privileged. It involves confidence, trust and cooperation. Where counsel is appointed to represent one charged with an offense, the offender is entitled to protest, if the lawyer selected is objectionable to him. In the military system, if an accused has just cause for complaint against his defender, such as hostility or incompetency he is entitled to request the appointment of other counsel. Furthermore, he is entitled to reject the services of appointed officers and employ, at his own expense, the services of civilian counsel. It may be that where an accused does not retain the services of civilian counsel, or prevail upon individual counsel to undertake his defense, or object with good cause to the representation by counsel appointed for him, he is deemed to have concurred in the appointment. However, that notion of implied consent or acquiescence is not peculiar to the military system, but is operative in every system which relies, in whole or in part, on public defenders or court-appointed counsel.

We need not concern ourselves with that theory, however, for when it is applied to the facts in the instant case, it is at once apparent that it is not appropriate. Here we have no way of knowing whether accused was informed that he was being represented by counsel chosen by the convening authority. He could not consent if he did not know. Apparently, the military service decided he had no voice in the matter as they chose to ignore him personally.”

The court concluded its discussion on this point by stating that, “To bind the accused, we feel that there must be some semblance of acceptance on his part, as representation by total strangers is neither desirable nor fair” and the court declared the acts performed by this “uninvited” counsel a nullity. See also United States v. Gaines, 20 U.S.C.M.A. 557, 43 C.M.R. 397 (1971), which was reversed on other grounds.

There are some disturbing practical considerations which involve the limitations imposed by Goode itself. Under that decision the staff judge advocate may require defense counsel’s response to the. contents of the post-trial review within a five-day period. In order to “correct or challenge any matter he deems erroneous, inadequate or misleading,”¹² in the post-trial review, counsel is going to have to be thoroughly conversant with the conduct of the defendant’s trial. Substitute defense counsel, unfamiliar as he will be with the actual events of the trial, will have to read the entire record of trial in order to overcome his ignorance and be in a position to perform his Goode functions with a modicum of professionalism. Considering the workload most defense counsel carry in the field, undoubtedly this will prove to be an onerous burden, not always capable of accomplishment in the allotted five days. In any case, substitute counsel will hardly be as capable of providing as meaningful a representation as the counsel who actually participated in the events under discussion.

A new post-trial proceeding in which the requirements of United States v. Goode, supra, are complied with is mandated.¹³

The action of the convening authority, dated 16 June 1975, is hereby set aside. The record of trial is returned to The Judge Advocate General for a new review and action by a different staff judge advocate and convening authority.¹⁴

Senior Judge BAILEY concurs.

1 . Quotation is from affidavit submitted by Captain Sano.

2 . United States v. Mickel, 9 U.S.C.M.A. 324, 26 C.M.R. 104 (1958); United States v. Clay, 1 U.S.C.M.A. 74, 1 C.M.R. 74 (1951); Article 38(b), UCMJ.

3 . United States v. Tellier, 13 U.S.C.M.A. 323, 327, 32 C.M.R. 323, 327 (1962).

4 . United States v. Darring, 9 U.S.C.M.A. 651, 653, 26 C.M.R. 431, 433 (1958). The court clearly meant post-trial, as opposed to just post -findings duties, as the case was concerned with defense counsel’s obligation to advise his client concerning his appellate rights in accordance with paragraph 48j(3), MCM 1951 (now 48k (3), MCM 1969 (Rev ed)); United States v. Clemens, 34 C.M.R. 778 (A.F.B.R.1963); United States v. Casey, 20 C.M.R. 853 (A.F.B.R.1955); United States v. Draper, 20 C.M.R. 743 (A.F.B. R.1955).

5 . United States v. Beatty, 10 U.S.C.M.A. 311, 27 C.M.R. 385 (1959); United States v. Vara, 8 U.S.C.M.A. 651, 25 C.M.R. 155 (1958).

6 . United States v. Tellier, supra; United States v. Eason, 21 U.S.C.M.A. 335, 45 C.M.R. 109 (1972).

7 . United States v. Stanten, 21 U.S.C.M.A. 431, 45 C.M.R. 205 (1972); United States v. Massey, 14 U.S.C.M.A. 486, 34 C.M.R. 266 (1964).

8 . United States v. Murray, 20 U.S.C.M.A. 61, 62, 42 C.M.R. 253, 254 (1970).

9 . Id.

10 . Impliedly, this opinion has assumed that Captain Sano was properly appointed as a defense counsel for the appellant for the purpose of perusing and commenting on the review. There are, however, no orders to that effect in the record, and all we know of his relationship to this case is what he recited in the quotation in the text to footnote 1, supra. Such an informal designation is not enough to constitute Captain Sano as defense counsel for any purpose. United States v. Coleman, 19 U.S.C.M.A. 524, 42 C.M.R. 126 (1970). It is also noted that there were over 30 days left from the date the review was completed until the 90-day post-trial Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974), period had run. This would appear to be ample time for the staff judge advocate to have dealt with Captain Pangburn.

11 . United States v. Catt, 23 U.S.C.M.A. 442, 50 C.M.R. 326, 1 M.J. 41 (1975).

12 . United States v. Goode, supra, 50 C.M.R. at page 4, 1 M.J. at page 6.

13 . The court is aware of the decision of a sister panel in United States v. Iverson, No. 433471, 2 M.J. 489 (A.C.M.R. 31 Dec. 1975), which is contrary to ours. We simply do not agree.

14 . For the edification of the author of the new review, an issue has been raised on this appeal concerning the failure of the present review to discuss the affirmative defense of agency, though that defense was raised at trial and instructed upon. In view of our disposition of the case we have not discussed that alleged error. Hopefully, it will be mooted before this Court again, if ever, reviews this record.