United States v. Schreck

9 M.J. 217, 1980 CMA LEXIS 10776

• Court: United States Court of Military Appeals
• Decided: September 15, 1980
• Docket: No. 38,035; NCM 78 1650
• Status: Published

Opinions

Opinion of the Court

FLETCHER, Judge:

The Government has moved this Court to dismiss appellant’s petition for grant of review. See Rule 28, Rules of Practice and Procedure, United States Court.of Military Appeals. Government counsel assert this petition was filed in an untimely and improper manner with this Court by appellate defense counsel. See Article 67(c), Uniform Code of Military Justice, 10 U.S.C. § 867(c).

The purported basis for the government’s assertion concerning the filing of appellant’s petition is the decision of this Court in United States v. Smith, 22 U.S.C.M.A. 247, 46 C.M.R. 247 (1973). The Government originally alleged that the appellant was an unauthorized absentee on March 27, 1979,¹ the day the United States Navy Court of Military Review rendered its decision in his case. In light of the decision in United States v. Smith, supra, government counsel argued that the 30-day appeal period specified in Article 67(c) commenced on that date and expired on April 26,1979. Accordingly, he concluded that the present petition filed on September 21, 1979, on behalf of the appellant was improper because it was untimely as a matter of law.

At a later date, the Government filed a Motion to Supplement its earlier Motion to Dismiss. It changed its previous argument to the extent that it conceded that appellate defense counsel was properly served with a copy of the Navy Court of Military Review decision on August 22, 1979. Moreover, relying on United States v. Larneard, 3 M.J. (C.M.A.1977), it agreed that it was on this date that the 30-day period of appeal under Article 67(c) commenced for the appellant. Nevertheless, it asserted that since the appellant was on unauthorized absence during the entire appeal period, neither he nor properly authorized counsel could lawfully file a petition with this Court. See United States v. Smith, supra.2 Accordingly, it urged the petition in question be dismissed as improperly filed with this Court.

Our decision in United States v. Larneard, supra, provides that properly authorized counsel may both receive service of a Court of Military Review decision and file a Petition for Grant of Review with this Court for an accused whose conviction is affirmed by an intermediate military appellate court. Naval regulations, moreover, now provide for personal service of the Court of Military Review decision on an absent accused and, if this fails, on his counsel specifically designated for this purpose or, if no special authorization exists, that the decision be held by the Judge Advocate General until an accused is again under the control of military authorities. See section 0133d (4)(a), Manual of the Judge Advocate General, Department of Navy (July 1, 1978). This was not the regulatory situation for service and filing treated in United States v. Smith, supra, nor was counsel specifically authorized by the appellant in that case to receive the lower court decision and file a petition on behalf of the accused with this Court. In light of these differences, we find the government’s reliance on United States v. Smith, supra, misplaced for purposes of the lawful filing of petitions for grant of review with this Court. United States v. Larneard, supra.

Additionally, the operation of the present service regulations as urged by the Government in light of United States v. Smith, supra, and United States v. Larneard, supra, would have an unfair and unintended effect on the appellant. Under the present Navy regulatory scheme, a convicted, but absent, service member who does not sign a special authorization for counsel would be personally served with his Court of Military Review decision at the time he returns to military authorities. Since he would no longer be absent without leave, under the government interpretation of United States v. Smith, supra, he could at that time lawfully file his petition for grant of review with this Court. However, if the same service member had signed a special authorization of counsel, as the appellant did, his Court of Military Review decision would have been immediately served on counsel during his absence, thus commencing the 30-day appeal period. See United States v. Larneard, supra. Moreover, unless he returned to military authorities within 30 days of that date, the Government, relying on United States v. Smith, supra, would assert that neither he nor his counsel could lawfully file a petition for grant of review with this Court.

The operation of this regulatory scheme in this manner would clearly discourage utilization of the special authorization of counsel provided in United States v. Larneard, supra, and cannot be considered consistent with the principles of that decision. Also, the Court in United States v. Smith, supra, did not intend such differential treatment among the class of appellants absent without leave. Portions of United States v. Smith, supra, which would support the operation and effect of United States v. Larneard, supra, in this counterproductive and irrational manner must be considered overruled by the latter decision. The government’s Motion to Dismiss this Petition for Grant of Review is denied.

1 . Various exhibits have been filed with this motion which purport to administratively show: that the petitioner was absent without authority from November 13, 1978, to March 24, 1979, when he was apprehended by civilian authorities; that he was turned over, on March 25, 1979, to military authorities at United States Naval Station, Long Beach, California, where he received orders to report to Pearl Harbor not later than 0200 hours on March 28, 1979; that he failed to do so and was absent without authority since March 28, 1979. These purported absences were after his court-martial and the service of its approved sentence of confinement.

2 . Private Smith was found by the military judge at his court-martial to be voluntarily absent without authority from those proceedings. The trial proceeded and Smith was convicted notwithstanding his absence. Appellate defense counsel later unsuccessfully attempted to appeal this very conviction to this Court on Smith’s behalf, during the latter’s continued absence and without his knowledge.