2 M.J. 1100 | U.S. Army Court of Military Review | 1977
OPINION OF THE COURT
Despite his pleas to the contrary, the appellant was convicted by general court-martial in Korea of stealing approximately $5,800.00 worth of government property (steak and pot roast) in violation of Article 121, Uniform Code of Military Justice (10 U.S.C. § 921). The approved sentence is reflected above.
The principle error which has been framed by counsel is whether the appellant was prejudiced by the transfer of the trial defense counsel prior to completion of the post-trial review. We find no error and affirm.
The facts are not in dispute. The appellant was represented before and during trial by Captain Forbes. On 16 October 1975, the appellant was sentenced. Thereafter, the staff judge advocate commenced the administrative processing of the record of trial. On 12 December 1975, Captain Forbes advised the appellant of his appellate rights. Before the staff judge advocate had completed the review Captain Forbes was transferred back to the continental United States with a duty station at Fort Carson, Colorado. When the review was completed, the staff judge advocate attempted on two occasions to contact Captain Forbes by telephone in order to serve him with the review in accordance with United States v. Goode.
In Goode
In the case at bar the Goode mandate has been met. Appellate defense counsel have not alleged any errors in the post-trial review nor has our examination of that document disclosed any.
With regard to the issue of substituted defense counsel during the post-trial activities, the Court first notes that the staff judge advocate acted in good faith in appointing Captain Lantz. His efforts were designed to insure that the appellant had the assistance of counsel at all stages of the proceedings.
We have considered the other assignments of error and find them to be non-meritorious.
Our examination of the record reveals that when the military judge advised the appellant of his rights as to allocution prior to sentencing, he did advise him of his right to make a sworn or unsworn statement, however, he failed to explicitly apprise the appellant of his right to remain silent. This is error. United States v. Hawkins, 25 U.S.C.M.A. 23, 54 C.M.R. 23, 2 M.J. 23 (1976). The accused made an unsworn statement through his counsel. However, after careful consideration of all the facts of record, including the apparent salutary effect of the unsworn statement and the relatively light sentence, we find that the appellant was not prejudiced.
The findings of guilty and the sentence are affirmed.
. United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975).
. United States v. Goode, supra, n.l.
. United States v. Myhrberg, 2 M.J. 534 (A.C.M.R. En Banc 16 July 1976).
. United States v. Myhrberg, Id.
. See, ABA Approved Draft, 1968 “Providing Defense Services” Sec. 5.2.
. United States v. Staley, 2 M.J. 903 (A.C. M.R. 11 June 1976).
. We do not agree with the majority opinion in United States v. Miller, 51 C.M.R. 829, 1 M.J. 798 (A.C.M.R.1976), and its trailer case, United States v. Bates, 52 C.M.R. 42, 2 M.J. 1274 (A.C.M.R.1976) and decline to follow it.