United States v. O'Dell

19 C.M.A. 37, 19 USCMA 37, 41 C.M.R. 37, 1969 CMA LEXIS 663, 1969 WL 6272

• Court: United States Court of Military Appeals
• Decided: October 17, 1969
• Docket: No. 22,105
• Status: Published

Opinions

Opinion of the Court

Quinn, Chief Judge:

At a special court-martial, the accused was represented by counsel who was a nonlawyer in the sense of Article 27, Uniform Code of Military Justice, 10 USC § 827. The court imposed the maximum confinement that can be adjudged by a special court-martial and a bad-conduct discharge, along with partial forfeiture of pay.

A review of the record of the proceedings indicates the accused requested representation by qualified military counsel but no official action was taken on his request. Relying upon United States v Mitchell, 15 USCMA 516, 36 CMR 14, the board of review concluded that since the matter was not raised at trial it would not be considered by it on review. Mitchell is, however, inapplicable. Waiver of the right to qualified counsel has been “resolutely refused ... in those instances in which the accused has not been represented by trained counsel.” United States v Williams, 18 USCMA 518, 519, 40 CMR 230.

It further appears that the accused was confined on August 20, 1968, the day he returned to military control from a period of unauthorized absence, and he remained under some form of restriction until September 30, when the suspension of an earlier sentence to confinement was vacated and he was confined under that sentence; there is no indication in the record that any steps were taken to bring the accused to trial on the charge for which he was confined until the formal charge sheet was prepared on September 30. See Article 10, Code, supra, 10 USC § 810. At trial, the accused and six others facing unrelated charges were subjected to “[cjommunity examination” as to the right to counsel, as defined in Article 38(b), Code, supra, 10 USC § 838, the right to enlisted membership on the court-martial, and whether they had had pretrial consultation with counsel regarding their rights at trial; this kind of en masse proceeding has been condemned. See United States v Pratt, 17 USCMA 464, 466, 38 CMR 262. The inquiry into the accused’s understanding of the elements of the offense and the meaning and effect of his plea of guilty does not conform to the procedure approved in United States v Chancelor, 16 USCMA 297, 36 CMR 453. Some of the instructions in regard to the sentence are contrary to decisions of this Court, and others are not supported by any of the evidence in the case. See United States v Slack, 12 USCMA 244, 30 CMR 244; United States v Rigney, 16 USCMA 617, 37 CMR 237.

Considering all the proceedings, we are unable to conclude that the accused was accorded the rights and the kind of trial contemplated by the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1951. Accordingly, the decision of the board of review is reversed. The findings of guilty and the sentence are set aside and the charge is ordered dismissed. United States v Evans, 18 USCMA 3, 39 CMR 3.

Judge Ferguson concurs.