United States v. White

9 C.M.A. 692, 9 USCMA 692, 26 C.M.R. 472, 1958 CMA LEXIS 431, 1958 WL 3403

• Court: United States Court of Military Appeals
• Decided: October 3, 1958
• Docket: No. 11,155
• Status: Published

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

This is another case concerned with the waiver of appellate representation before the board of review. See United States v Darring, 9 USCMA 651, 26 CMR 431. The accused concedes that his defense counsel informed him of his right to counsel. Thus, in an affidavit filed with his petition for grant of review, he says “at the conclusion of my trial I was advised by my trial defense counsel . . . that I was entitled to be represented by military counsel, or by civilian counsel at my own expense before the board of review.” He maintains, however, that defense counsel also told him that representation before the board of review would “do [him] no good whatsoever” but that regardless of his (counsel’s) opinion, the accused was “entitled to representation by counsel before the board of review.” There is nothing inherently wrong in defense counsel’s expression' of opinion on the probable fruitfulness of appellate representation. What is important is that the accused understood his rights. United States v Darring, supra. Here the accused leaves no doubt that he was fully informed of rights to appellate representation before the board of review and that he knowingly decided not to request counsel. We must, therefore, hold him to his election.

The accused also contends that he cannot be separately punished for escape from confinement and desertion. This issue was decided against him in United States v Boswell, 8 USCMA 145, 23 CMR 369.

The decision of the board of review is affirmed.

Judge Latimer concurs.