Opinion
Darden, Judge:
A general court-martial at Da Nang, Republic of Vietnam, found the appellant guilty of attempted larceny of Government-owned beer and soft drinks, violations of a lawful general order, and resisting lawful apprehension by an armed forces policeman. On January 25, 1969, the court sentenced him to a bad-conduct discharge, confinement at hard labor for twelve months, forfeiture of $65.00 per month for twelve months, and reduction to the grade of E-l. Earlier appellate review resulted in dismissal of one specification under the charge of violating a lawful general order and reassessment of the sentence without a change in it.
One of the three issues on which this Court granted appellant’s petition for review related to his understanding of his choice of counsel under Article 38 (b), Uniform Code of Military Justice, 10 USC § 838. In United States v Donohew, 18 USCMA 149, 39 CMR 149 (1969), we prescribed a prospective requirement that the military judge inform an accused of the several choices of counsel that Article 38(b) provides. Before the Donohew decision, only the defense counsel had a responsibility for informing an accused of these choices. Our opinion in United States v Turner, 20 USCMA 167, 43 CMR 7 (1970), elaborates the principal objective of Donohew as being to assure that an accused knows of his rights to be represented by civilian counsel at his own expense or by military counsel other than the one then assigned to him if the other military counsel was reasonably available. The new responsibility of the military judge under Donohew did not end the responsibility of defense counsel under paragraph 46d of the Manual for Courts-Martial, United States, 1969, to discuss counsel choices. Without a showing that an accused did not understand the advice about other possibilities for counsel or that the accused was, in fact, denied an opportunity to select his own counsel, we have not reversed any pre-Donohew cases in which there was no inquiry whether the accused had been [341]*341advised of his rights under Article 38 (b), Code, supra.
The appellant in the case before us was represented by certified lawyer-counsel throughout the proceedings. Without a showing to the contrary, we assume on pr e-Donohew cases that the defense counsel properly performed his duties. In addition, the record in this case reflects that the appellant was fully informed of his Article 38(b) rights at the pretrial investigation of charges against him. Under pr e-Donohew standards,1 these circumstances are enough to satisfy requirements on right-to-counsel advice that existed at the time of trial. United States v Johnson, No. 69-3473 (NCMR June 23, 1970), petition for grant of review denied, Docket No. 23,268 (September 23, 1970).
The next issue arises from the military judge’s instruction in presentenc-ing proceedings that:
. . [P] leas of guilty are matters in mitigation which may be considered along with all the other facts and circumstances in the case. Time, effort, and expense to the government usually are saved by a plea of guilty. Such a plea may be a manifestation of repentance and a first step toward rehabilitation.”
The appellant had pleaded guilty to only two specifications involving violation of a general regulation. Because he pleaded not guilty to two other charges (attempted larceny and resisting lawful apprehension) his appellate counsel contends that the instruction in question was likely to cause the court to determine that the not guilty pleas were aggravating circumstances.
A military judge must give a court-martial guidelines for its sentencing deliberations. United States v Rake, 11 USCMA 159, 28 CMR 383 (1960). These instructions must be tailored to the evidence offered by each side during extenuation and mitigation. United States v Wheeler, 17 USCMA 274, 38 CMR 72 (1967). A majority of this Court has held that where there is no evidence of good conduct, valor, or other favorable traits of an accused, the judge should not mention those qualities since reference to them would emphasize their obvious absence. United States v Tackett, 19 USCMA 85, 41 CMR 85 (1969). An instruction that a guilty plea is a matter in mitigation “is not inappropriate” (Rake, supra, at page 161), and such an instruction is “an important factor in determining an appropriate sentence.” United States v Rake, supra, dissenting opinion, at page 161. In Wheeler, supra, the Court emphasized the duty of the military judge to invite the court’s attention to “the plea of guilty; and other matters which the court should consider.” 17 USCMA, at page 278.
Against this background it seems clear that if the instruction that a guilty plea is a mitigating circumstance had not been given, failure to do so would have been assigned as error. Our opinion is that the juxtaposition of the guilty and not guilty pleas was as likely to benefit the accused as it was to harm him. His discriminating choice of pleas served to emphasize the sincerity of his belief that he was not guilty of two of the charges; at the same time he had the benefit of an instruction that his guilty pleas should tend to mitigate the sentence. We believe the fear of appellate defense counsel that the members of the court would consider the not guilty pleas as aggravating in nature is without any foundation in reality.
The precise wording of the third issue is: “Whether appellant was denied due process of law by the unreasonable delays in this case.” Aside from the prejudgment that the con-clusory words “unreasonable delays” may denote, the issue needs further refinement to indicate its contemplation of a test under the standard of [342]*342military, instead of Fifth Amendment, due process. Although this Court has declared that constitutional safeguards apply to military trials except insofar as they are made inapplicable expressly or by necessary implication (United States v Jacoby, 11 USCMA 428, 29 CMR 244 (1960)), the Court has not held that the due process clause of the Fifth Amendment applies ex proprio vigore to appellate review of military trials. Speedy trial issues have been decided on the basis of military due process. United States v Schalck, 14 USCMA 371, 34 CMR 151 (1964). In United States v Clay, 1 USCMA 74, 77, 1 CMR 74 (1951), the Court commented on military due process that: “For our purposes, and in keeping with the principles of military justice developed over the years, we do not bottom those rights and privileges on the Constitution. We base them on the laws as enacted by Congress.” Congress has legislated safeguards to the right of a speedy trial (Articles 10 and 33, Uniform Code of Military Justice, 10 USC §§ 810 and 833), but there are no statutory limitations on the period of appellate review other than those imposed on this Court by Article 67 of the Code. In United States v Richmond, 11 USCMA 142, 145, 28 CMR 366 (1960), this Court commented on the differences in the timing of the trial itself and of appellate review:
“. . . An accused is guaranteed the right to a speedy trial, but that privilege must be distinguished from his rights on appeal. In connection with the former, the accused is presumed innocent and, if the Government is unable to prove his guilt, he is entitled to his liberty at the earliest possible time. His chances to defend may depend upon the availability of witnesses and, even if they are available, their memories may be dulled by the passage of time.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion
Darden, Judge:
A general court-martial at Da Nang, Republic of Vietnam, found the appellant guilty of attempted larceny of Government-owned beer and soft drinks, violations of a lawful general order, and resisting lawful apprehension by an armed forces policeman. On January 25, 1969, the court sentenced him to a bad-conduct discharge, confinement at hard labor for twelve months, forfeiture of $65.00 per month for twelve months, and reduction to the grade of E-l. Earlier appellate review resulted in dismissal of one specification under the charge of violating a lawful general order and reassessment of the sentence without a change in it.
One of the three issues on which this Court granted appellant’s petition for review related to his understanding of his choice of counsel under Article 38 (b), Uniform Code of Military Justice, 10 USC § 838. In United States v Donohew, 18 USCMA 149, 39 CMR 149 (1969), we prescribed a prospective requirement that the military judge inform an accused of the several choices of counsel that Article 38(b) provides. Before the Donohew decision, only the defense counsel had a responsibility for informing an accused of these choices. Our opinion in United States v Turner, 20 USCMA 167, 43 CMR 7 (1970), elaborates the principal objective of Donohew as being to assure that an accused knows of his rights to be represented by civilian counsel at his own expense or by military counsel other than the one then assigned to him if the other military counsel was reasonably available. The new responsibility of the military judge under Donohew did not end the responsibility of defense counsel under paragraph 46d of the Manual for Courts-Martial, United States, 1969, to discuss counsel choices. Without a showing that an accused did not understand the advice about other possibilities for counsel or that the accused was, in fact, denied an opportunity to select his own counsel, we have not reversed any pre-Donohew cases in which there was no inquiry whether the accused had been [341]*341advised of his rights under Article 38 (b), Code, supra.
The appellant in the case before us was represented by certified lawyer-counsel throughout the proceedings. Without a showing to the contrary, we assume on pr e-Donohew cases that the defense counsel properly performed his duties. In addition, the record in this case reflects that the appellant was fully informed of his Article 38(b) rights at the pretrial investigation of charges against him. Under pr e-Donohew standards,1 these circumstances are enough to satisfy requirements on right-to-counsel advice that existed at the time of trial. United States v Johnson, No. 69-3473 (NCMR June 23, 1970), petition for grant of review denied, Docket No. 23,268 (September 23, 1970).
The next issue arises from the military judge’s instruction in presentenc-ing proceedings that:
. . [P] leas of guilty are matters in mitigation which may be considered along with all the other facts and circumstances in the case. Time, effort, and expense to the government usually are saved by a plea of guilty. Such a plea may be a manifestation of repentance and a first step toward rehabilitation.”
The appellant had pleaded guilty to only two specifications involving violation of a general regulation. Because he pleaded not guilty to two other charges (attempted larceny and resisting lawful apprehension) his appellate counsel contends that the instruction in question was likely to cause the court to determine that the not guilty pleas were aggravating circumstances.
A military judge must give a court-martial guidelines for its sentencing deliberations. United States v Rake, 11 USCMA 159, 28 CMR 383 (1960). These instructions must be tailored to the evidence offered by each side during extenuation and mitigation. United States v Wheeler, 17 USCMA 274, 38 CMR 72 (1967). A majority of this Court has held that where there is no evidence of good conduct, valor, or other favorable traits of an accused, the judge should not mention those qualities since reference to them would emphasize their obvious absence. United States v Tackett, 19 USCMA 85, 41 CMR 85 (1969). An instruction that a guilty plea is a matter in mitigation “is not inappropriate” (Rake, supra, at page 161), and such an instruction is “an important factor in determining an appropriate sentence.” United States v Rake, supra, dissenting opinion, at page 161. In Wheeler, supra, the Court emphasized the duty of the military judge to invite the court’s attention to “the plea of guilty; and other matters which the court should consider.” 17 USCMA, at page 278.
Against this background it seems clear that if the instruction that a guilty plea is a mitigating circumstance had not been given, failure to do so would have been assigned as error. Our opinion is that the juxtaposition of the guilty and not guilty pleas was as likely to benefit the accused as it was to harm him. His discriminating choice of pleas served to emphasize the sincerity of his belief that he was not guilty of two of the charges; at the same time he had the benefit of an instruction that his guilty pleas should tend to mitigate the sentence. We believe the fear of appellate defense counsel that the members of the court would consider the not guilty pleas as aggravating in nature is without any foundation in reality.
The precise wording of the third issue is: “Whether appellant was denied due process of law by the unreasonable delays in this case.” Aside from the prejudgment that the con-clusory words “unreasonable delays” may denote, the issue needs further refinement to indicate its contemplation of a test under the standard of [342]*342military, instead of Fifth Amendment, due process. Although this Court has declared that constitutional safeguards apply to military trials except insofar as they are made inapplicable expressly or by necessary implication (United States v Jacoby, 11 USCMA 428, 29 CMR 244 (1960)), the Court has not held that the due process clause of the Fifth Amendment applies ex proprio vigore to appellate review of military trials. Speedy trial issues have been decided on the basis of military due process. United States v Schalck, 14 USCMA 371, 34 CMR 151 (1964). In United States v Clay, 1 USCMA 74, 77, 1 CMR 74 (1951), the Court commented on military due process that: “For our purposes, and in keeping with the principles of military justice developed over the years, we do not bottom those rights and privileges on the Constitution. We base them on the laws as enacted by Congress.” Congress has legislated safeguards to the right of a speedy trial (Articles 10 and 33, Uniform Code of Military Justice, 10 USC §§ 810 and 833), but there are no statutory limitations on the period of appellate review other than those imposed on this Court by Article 67 of the Code. In United States v Richmond, 11 USCMA 142, 145, 28 CMR 366 (1960), this Court commented on the differences in the timing of the trial itself and of appellate review:
“. . . An accused is guaranteed the right to a speedy trial, but that privilege must be distinguished from his rights on appeal. In connection with the former, the accused is presumed innocent and, if the Government is unable to prove his guilt, he is entitled to his liberty at the earliest possible time. His chances to defend may depend upon the availability of witnesses and, even if they are available, their memories may be dulled by the passage of time. While dilatory tactics are usually the tools of the defense, procrastination may impair a valid defense and in that way injure an accused. In addition, the history of the law teaches us that, unless preliminary matters up to and including trial are processed with dispatch, accused persons may rot in jail without being informed of the nature of the charges or the reasons for being held. To avoid those possibilities and to escape the autocratic and tyrannical abuses which had been practiced prior to the Magna Carta, the founders of this country wrote into the Sixth Amendment to the Constitution the right to a speedy and public trial. That right has been recognized in military law (see Article 10, Uniform Code of Military Justice, 10 USC § 810), but in neither the military nor the civilian law has such a privilege on appeal been so jealously guarded.”
The court-martial that tried the appellant pronounced sentence on January 25, 1969. Not until November 3, 1969, some nine months later, did the convening authority act on the case. The appellant was released from confinement on October 31, 1969, and has been in a status of “appellate leave” pending completion of appellate review.
The reasons for the delay were unexplained in the staff judge advocate’s report. Attachments to the Government brief attribute the delay to a heavy workload in a command located in a war zone, a shortage of qualified personnel, and frequent equipment breakdowns while the record of trial was being processed. Even for those who have not personally observed the conditions under which operations are being conducted in Vietnam, no extraordinary imagination is required for an appreciation of the unusual circumstances obtaining there. Despite our disinclination to be captious, the lapse of time between the time of trial and the convening authority’s action in this case seems excessive. But that the time required for this step was inordinately long does not ipso facto demonstrate that the appellant was prejudiced.
Since Congress created an arrangement under which an accused receives [343]*343credit against sentence to confinement for the time required by appellate review, the service of all confinement before completion of appellate review should not be conclusive in itself on the issue of prejudice. In almost all special courts-martial, the appellant has been released from what could have been a maximum of six months’ confinement before he has an opportunity to petition this Court. Hence the choice of the appellant in this case to be in a status of “appellate leave” rather than discharged pending consideration of this case by the Court of Military Review and this Court does not set him apart from many other appellants.
Where error has occurred in the conduct of a court-martial proceeding, some combinations of sentences and delays can result in cases requiring relief if a review for errors of law under Article 67, Uniform Code of Military Justice, 10 USC § 867, is not to become a completely inane exercise. Unexplained appellate delays may demand a dismissal if prejudicial errors have occurred. United States v Tucker, 9 USCMA 587, 26 CMR 367 (1958); United States v Ervin, 20 USCMA 97, 42 CMR 289 (1970).
In this case the proceedings by which the conviction of this appellant came about are free of prejudicial error. Consequently there is no wrong to be righted and our concern about the delay in the convening authority’s action is not a sufficient basis for reversal. United States v Richmond, supra.
The decision of the Court of Military Review is affirmed.