2 M.J. 903 | U.S. Army Court of Military Review | 1976
Lead Opinion
OPINION OF THE COURT
Appellant was convicted on 4 September 1975 at a bench trial of eighteen charges of uttering worthless checks. All offenses were cited as violations of Article 123a, Uniform Code of Military Justice (10 U.S.C. § 923a). His approved sentence is noted supra.
Appellant’s trial on 4 September was a rehearing. His original trial was conducted on 22 May 1975. He pled guilty on that occasion and was duly convicted of eighteen bad-check offenses.
During the course of transcribing the record of the May trial, a tape recording containing a substantial portion of the proceedings was stolen. Consequently, in his review
The alleged error in the case arose because the staff judge advocate did not serve a copy of this post-trial review
“A copy of this review has not been shown to the Trial Defense Counsel, CPT Richard Y. Anderson, due to the fact that he PCS’d from this command in June, 1975 for reassignment at Fort Lee, Virginia.”
As this Court held in United States v. Miller, 2 M.J. 767 (27 Feb. 1976), and United States v. Bates, 2 M.J. 1274 (8 March 1976), this explanation will not suffice to deprive a defendant of the rights bestowed by the Goode rule. The problem caused by the absence of trial defense counsel under these circumstances can be resolved by any one of several approaches. A few that come readily to mind are:
*904 1. If time permits, send a copy to counsel’s present address by registered mail.
2. Absent sufficient time, contact counsel by telephone and read the review to him.
3. With the concurrence of the defendant, appoint a new defense counsel to perform this and other post-trial duties.6
Further, the sentence which could be imposed by the court at the rehearing held on 4 September 1975 was circumscribed by the original court-martial.
The findings of guilty and the sentence are affirmed.
. Article 61, Uniform Code of Military Justice; paragraph 85a, MCM 1969 (Rev.); see also the penultimate full paragraph in paragraph 92a, on page 18-2, MCM 1969 (Rev.).
. Paragraph 82b (1), MCM 1969 (Rev.); United States v. Whitney, 23 U.S.C.M.A. 48, 48 C.M.R. 519 (1974).
. United States v. Thompson, 22 U.S.C.M.A. 448, 47 C.M.R. 489 (1973); United States v. Ledbetter, 48 C.M.R. 606 (A.C.M.R.1974); that this may not always be a permissible solution is evidenced by the en banc opinion of this Court in United States v. Crutchfield, 48 C.M.R. 602 (A.C.M.R.1974).
. The requirement for a post-trial review of some description prior to an action ordering a rehearing appears mandated by the language in the provisions cited in footnote 1, supra.
. “ . . . , it is ordered that on and after 15 May 1975, a copy of the written review required by Article 61 ... be served on counsel for the accused . . . .” United States v. Goode, 23 U.S.C.M.A. at 370, 50 C.M.R. at 4, 1 M.J. at 6.
. See paragraph 48k, MCM 1969 (Rev.). This type of arrangement might be more easily effectuated if it were undertaken while the original trial defense counsel was present and able
. It is interesting to note that although CPT Anderson was deemed inaccessible in August 1975 for the purposes of compliance with the Goode rule in relation to the first post-trial review in this case, he was available to act as detailed defense counsel at the subsequent rehearing in September 1975 and to conduct the Goode review on the second post-trial review in November 1975.
. Article 63(b), Uniform Code of Military Justice.
Concurrence Opinion
concurring separately:
I fully concur in the opinion of Judge Cook with the exception of that portion of the opinion referencing United States v.