United States v. Montoya

13 M.J. 268, 1982 CMA LEXIS 17176
CourtUnited States Court of Military Appeals
DecidedJuly 6, 1982
DocketNo. 39259/AR; CM 14503/S
StatusPublished
Cited by16 cases

This text of 13 M.J. 268 (United States v. Montoya) 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. Montoya, 13 M.J. 268, 1982 CMA LEXIS 17176 (cma 1982).

Opinion

OPINION OF THE COURT

COOK, Judge:

Tried by special court-martial, the accused was convicted, despite his pleas, of [269]*269leaving his place of duty,1 disobedience of an order of a non-commissioned officer, using provoking words, and communicating a threat, in violation of Articles 86, 91, 117, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 891, 917, and 934, respectively. The approved sentence extends to a bad-conduct discharge, confinement at hard labor for 6 months, and forfeiture of $299 pay per month for 6 months. The United States Army Court of Military Review affirmed in a short-form opinion. We specified the following issue:

DID THE MILITARY JUDGE ERRONEOUSLY RESTRICT THE ACCUSED’S RIGHT TO CIVILIAN COUNSEL?

We now decide that he did not and affirm.

The accused was informed of the charges on November 2,1979, and he first contacted his appointed defense counsel, Captain Lee, on November 5, 1979. At the first pretrial hearing in the case pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a), Captain Lee acknowledged that he had advised the accused of his right to counsel in accordance with Article 38(b), UCMJ, 10 U.S.C. § 838(b). Thereafter, the military judge further explained those rights to the accused as required by United States v. Donohew, 18 U.S.C.M.A. 149, 39 C.M.R. 149 (1969). During this advice, the military judge informed the accused that he had “a second right to counsel” who “is known as an Individual Counsel.” This “Individual Counsel” might “be either a civilian lawyer . .. provided by ... [the accused] at no expense to the government, or” he might be “an individual military counsel whom ... [the accused] might select” and who would represent the accused at no cost to him. At this point, the colloquy revealed:

MJ: Do you wish to be represented by Individual Counsel in your case?
ACC: I’d like to find out how much a lawyer costs, you know, in town, in Fayetteville.
MJ: Have you discussed this with Captain Lee?
ACC: I will, sir. I will, Your Honor.
MJ: Have you?
ACC: No. No, Your Honor. I don’t think I have enough money, Your Hon- or.

The military judge then gave the accused some time to discuss the matter with detailed defense counsel. Defense counsel responded:

DC: My client has indicated that he desires at least to have the opportunity to contact a civilian attorney and to try to make arrangements for the procurement of his services.

After further inquiry of both the accused and counsel, the military judge concluded:

MJ: Well Private Montoya, what I’ve said about your rights with respect to counsel is true. I don’t want to give you the idea that I’m taking any of that back. However, I do want to tell you that you do have an obligation, first of all to make up your mind about this in a timely fashion and second, to do what is necessary to accomplish your desires in a timely fashion. Now I’ve been asked to, by Captain Lee on your behalf, to further delay any proceedings in this case so that you can go ahead and try to obtain a civilian attorney. Now is that your decision?
ACC: Yes, Your Honor.
MJ: And you said you wanted to find out whether you had the funds to do so?
ACC: Yes, Your Honor.
MJ: Or could make the necessary arrangements to have a civilian attorney represent you. What do you have in mind? Do you have any particular individual in mind?
ACC: Not really, Your Honor. I don’t know too much about no attorneys in Fayetteville.
MJ: What is your financial situation at the present time?
ACC: I’ve got $163.00.

[270]*270Appointed defense counsel intervened to inform the military judge that other members of the accused’s family were employed and might be able to assist him financially.

After discussing with counsel their schedules for the next week and his own docket, the military judge granted a five-day continuance until the morning of November 26, 1979, to give the accused time to make the necessary arrangements for obtaining civilian counsel. He set a prospective date of November 30 for trial on the merits.

The pretrial hearing reconvened on November 26, and the military judge asked the accused “what arrangements . . . [he had] made or what decisions ... [he had] made with respect to counsel.” The accused responded that he had contacted a local civilian lawyer who had requested a fee of $1,500.00. The accused did not have that much money, but he had contacted his father, who was trying to obtain the money. The accused also raised the possibility of finding another attorney for a lesser fee, but he had not pursued that course of action. A further continuance was requested to allow the accused either to obtain the money or find another attorney. Defense counsel offered to call the accused’s father to see how much money he could raise. A short recess was given for this purpose.

Approximately two hours later, defense counsel informed the military judge:

DC: Yes, Your Honor, I have had the opportunity to contact Mr. Montoya. At this point, the defense would not be requesting any further delay in the proceedings. However, we would ask that the court or I would like to make the court aware of the fact that Private Montoya will continue to seek the assistance of a civilian defense counsel. I have spoken with his father with regard to financial arrangements and his father is continuing to drive on with his efforts to raise money in assisting his son in obtaining a civilian defense counsel. Your Honor, in the event or in any event really, Private Montoya has submitted a request for Individual Defense Counsel. I have marked it as Appellate Exhibit I and ask that it be attached to the record of trial.

The requested individual military counsel, Captain Allan, was, at that time, at the counsel’s table. The military judge again reviewed with the accused his right to counsel. In pertinent part, he said:

MJ: Now you still have a second right to counsel. That is the right to be represented by what we call an individual counsel. Individual counsel can mean a civilian lawyer which would be provided at no expense to the government or an individual military counsel. Now an individual military counsel would be someone in the military service other than Captain Lee who you would select by name. Such a person would represent you free of cost.

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Bluebook (online)
13 M.J. 268, 1982 CMA LEXIS 17176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-montoya-cma-1982.