United States v. Rogers

21 M.J. 435, 1986 CMA LEXIS 18289
CourtUnited States Court of Military Appeals
DecidedMarch 24, 1986
DocketNo. 53,237; CM 447023
StatusPublished
Cited by6 cases

This text of 21 M.J. 435 (United States v. Rogers) 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. Rogers, 21 M.J. 435, 1986 CMA LEXIS 18289 (cma 1986).

Opinions

Opinion of the Court

COX, Judge:

Consistent with his pleas, appellant was found guilty by general court-martial before a military judge alone of possessing marihuana with intent to distribute, in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a. His approved sentence includes a bad-conduct discharge, reduction to the lowest enlisted pay grade, confinement for 1 year, and total forfeitures. Because the record of trial [436]*436does not establish that appellant was informed of his appellate rights, he asks this Court to remand this ease for the purpose of having the military judge advise him of his rights on the record and affording him all of his post-trial rights anew.1

The facts are undisputed. Prior to deliberating on the sentence, the military judge gave trial defense counsel a document containing advice about all of Rogers’ appellate rights.2 The military judge charged defense counsel with discussing these rights with Rogers while the judge deliberated. After announcement of sentence, the following colloquy occurred between the military judge and Rogers’ civilian defense counsel:

MJ: Very well. Have you gone over the appellate rights with the accused?
IDC: I have not quite completed it with him, Your Honor.
MJ: Fine. If you would do that and have him sign it, please, that will be attached to the record as - an appellate exhibit.
The Court is adjourned.

Subsequent to the trial and after service of the Recommendation of the Staff Judge Advocate, individual defense counsel waived the right to submit a petition for clemency or to otherwise comment on the case. R.C.M. 1105(d) and 1106(f)(6), Manual for Courts-Martial, United States, 1984. In due course, Rogers’ case was reviewed by the Court of Military Review, which held that the military judge had committed error, but that appellant had suffered no prejudice “by the military judge’s failure to comply with R.C.M. 1010.” United States v. Rogers, 20 M.J. 847, 850 (A.C.M.R. 1985).

We granted review to consider and interpret R.C.M. 1010 in light of this case and numerous others which are now pending before this Court.3

The language of R.C.M. 1010 is clear and unequivocal. It imposes on the military judge two simple requirements: He must “inform the accused of” his appellate rights before adjournment, and he must “inquire” on the record to ensure that these rights are understood. Unlike Fed.R.Crim.P. 32(a)(2), which requires advice on appellate rights in contested cases only,4 the military judge must comply with this requirement whether an accused pleads guilty or is found guilty in a contested case.

The threshold question here is whether the military judge informed Rogers of his appellate rights. R.C.M. 1010 is silent as to whether the military judge must orally advise an accused of his rights or whether it suffices to have the advice rendered in writing. We hold that the advice may be given in either written form or orally.

The word “inform” is not a term of art in the sense that the information must be imparted in a particular format. It is sufficient if the information is provided in such a manner that it can be understood easily by the accused. To “inform” means “to impart knowledge or information” and “to ... supply knowledge or enlightenment” concerning a particular fact or circumstance. The Random House College Dic[437]*437tionary 683 (Rev. ed. 1980). As a practical matter, there are good reasons to provide an accused with written information and to require that defense counsel discuss and explain the written information with him. First, it memorializes the fact that defense counsel has indeed carried out his responsibility to discuss appellate rights with the accused. Second, it mitigates the possible hostility an accused may have towards the military judge who has just sentenced him. Furthermore, if the accused is provided a copy of the document he has just executed — as he should be — then he can read it again after the turmoil and emotions involved with the sentencing procedure have passed.

The second duty imposed upon the military judge by R.C.M. 1010 is that he “shall inquire of the accused to ensure that the accused understands” his appellate rights. This inquiry must be “on the record.” S.Rep. No. 53, 98th Cong., 1st Sess. 18 (1983). To satisfy the requirements imposed by R.C.M. 1010, a minimum of three things must be reflected in the record:

(1) That the accused has been advised of his appellate rights, either orally or in writing. If the advice has been given in writing, then the inquiry should make clear that the accused has read the advice and has signed the advice form.

(2) That the accused understands his rights. If the advice has been given in written form, then an acknowledgment that the accused has discussed the rights with his lawyer also would be appropriate.

(3) That the military judge has given the accused an opportunity — in open court — to request an explanation of any right he does not understand.

Turning to the case before us, the Appendix to this opinion is sufficient to meet the requirement of R.C.M. 1010(a) that the military judge “inform the accused of” his appellate rights. Because the court adjourned before the document was executed, however, the record does not reflect whether the military judge ensured that the accused understood those rights. Accordingly, the requirements of R.C.M. 1010(b) were not met.

Appellant has urged this Court to hold that this is reversible error per se and to “set aside the convening authority’s action and remand the case to the ... Court of Military Review with direction to order an Article 39(a) [,UCMJ, 10 U.S.C. § 839(a)] session so that R.C.M. 1010 may be satisfied, followed by a new review and action.” We decline to do either.

Appellant obviously understood and indeed has exercised his judicial appellate rights. He did not waive review by the Court of Military Review; he requested representation by appellate defense counsel; and he appealed to this Court. Nevertheless, appellant suggests that, because the record does not show that he understood his right to personally submit matters to the convening authority, and his civilian attorney, not he, waived his right to submit matters, reversal is mandated. We do not agree.

Trial defense counsel has long been charged with responding to the staff judge advocate’s review (now Recommendation). United States v. Smart, 21 M.J. 15 (C.M.A. 1985); United States v. Kincheloe, 14 M.J. 40 (C.M.A. 1982); United States v. Goode, 1 M.J. 3 (C.M.A. 1975). Furthermore and of equal significance, appellant has not alleged that he did not understand his post-trial and appellate rights, or that he would have taken any different action if the military judge had properly complied with R.C.M. 1010. See United States v. Smart, supra at 18. See also United States v. Johnson, 21 M.J. 211, 216 (C.M.A.

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Bluebook (online)
21 M.J. 435, 1986 CMA LEXIS 18289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rogers-cma-1986.