United States v. Thomas

8 M.J. 1, 1979 CMA LEXIS 8678

Opinions

Opinion of the Court

PER CURIAM:

*

Upon his conviction by a general court-martial for possession and sale of heroin, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, the appellant was sentenced to a bad-conduct discharge, confinement at hard labor for 9 months and reduction to the lowest enlisted grade. The new convening authority approved both the findings and the sentence and the United States Air Force Court of Military Review affirmed his action. Before this Court, the appellant asks:

WHETHER APPELLANT WAS DENIED HIS RIGHT TO A SPEEDY POST-TRIAL REVIEW AND ACTION WHERE THE CONVENING AUTHORITY TOOK HIS ACTION PRIOR TO FORWARDING TO APPELLANT’S COUNSEL A COPY OF THE REVIEW OF THE STAFF JUDGE ADVOCATE PER UNITED STATES V. GOODE, 23 U.S.C.M.A. 367, 50 C.M.R. 1 (1975).

We conclude that he was not.

The appellant’s trial was completed November 4,1975. Thereafter, the record was transcribed by the court reporter and authenticated by the military judge. Because of testimony appearing in the record to the effect that a prosecution witness believed that he had been promised immunity by the base staff judge advocate in exchange for his testimony, the original convening authority disqualified himself to avoid the appearance of evil. The record was transmitted to a new convening authority, and was received by his staff judge advocate on January 16,1976. On January 27, the staff judge advocate completed the review, in which the convening authority was advised that, since the accused had been in continuous post-trial confinement, a presumption would arise that he had been denied a speedy disposition of his case if the convening authority did not take his formal action very shortly.¹ The convening authority was further advised that, because the defense counsel was stationed at another installation, where the appellant had been tried, it was not possible to serve the counsel with the post-trial review and to furnish him time to respond thereto² within the time frame allowed for the convening authority’s action.³ Accordingly, the convening authority promulgated his formal and final action on January 30, 1976, the 87th day of the appellant’s post-trial confinement, without having served the appellant’s defense counsel with a copy of the post-trial review. Finally, the defense counsel was served on February 2 and he submitted his response on February 9. On February 18, the convening authority “affirmed” his earlier action.

The appellant’s claim of denial of his right to a speedy post-trial review and action by the convening authority has reference, of course, to the rule announced in Dunlap v. Convening Authority, 23 U.S.C. M.A. 135, 138, 48 C.M.R. 751, 754 (1974), that “a presumption of a denial of speedy disposition of the case will arise when the accused is continuously under restraint after trial and the convening authority does not promulgate his formal and final action within 90 days of the date of such restraint after completion of trial.” But, as the appellant himself acknowledges, the convening authority did take timely action on the record of trial on the 87th day.

Apparently, then, the gist of the appellant’s argument is that failure to serve defense counsel prior to the action pursuant to our decision in United States v. Goode, 1 M.J. 3 (C.M.A.1975), rendered that action void as a matter of law and, implicitly, rendered the subsequent action untimely in contravention of Dunlap. However, that is not the manner in which this Court has treated similar failure of service in the past, see United States v. Iverson, 5 M.J. 440 (C.M.A.1978), and we decline the appellant’s invitation to do so now. And, in light of the convening authority’s express consideration of the defense counsel’s response to the late service, and his subsequent “affirm[ance]” of his earlier action, we perceive no prejudice accruing to the appellant from such late service.

The decision of the United States Air Force Court of Military Review is affirmed.

Judge Matthew J. Perry took final action in this case prior to his resignation as a judge of this Court pursuant to his appointment and confirmation as a United States District Judge for the District of South Carolina.

1 . Dunlap v. Convening Authority, 23 U.S.C. M.A. 135, 48 C.M.R. 751 (1974).

2 . United States v. Goode, 1 M.J. 3 (C.M.A. 1975).

3 . Dunlap v. Convening Authority, supra.