United States v. Muma

OPINION OF THE COURT CARNE, Senior Judge: Appellant was found guilty, in accordance with his pleas, of assault and battery, aggravated assault, and four specifications of communicating a threat. He was sentenced to a bad-conduct discharge, confinement at hard labor for eight months and 15 days, total forfeitures, and reduction to the grade of E-l. I Three documents, entitled “Rights Understanding,” “Waiver of Rights in Guilty Plea Cases,” and “Stipulation Showing Lack of Pretrial Agreement,” were admitted at trial as appellate exhibits. These documents purport to restrict the post-trial use of evidence in connection with matters which could have been litigated at trial and contain other provisions which allegedly violate public policy. To the extent that these documents attempt to restrict the submission by the parties or use by this Court of properly admissible matters from outside the record of trial, they are hereby declared void. We find, however, for the reasons stated in United States v. Onan, 5 M.J. 514 (A.C.M.R. 24 April 1978), that, while the use of these documents by the military judge was not desirable, the providence of appellant’s pleas was unaffected thereby.1 II This Court has recently dealt with the sentencing procedures followed by this military judge during late 1976 and early 1977. United States v. Caruth, 5 M.J. 924 (A.C.M.R.1978) (en banc). Appellate defense counsel have not assigned as error the sentence practices utilized in this case. Indeed, appellant’s pleas of not guilty at arraignment would have precluded his eligibility for whatever sentence consideration might have been afforded him under those procedures, even though he subsequently changed his pleas to guilty. There is no evidence in this record to suggest that the military judge gave any sentencing consideration whatever to appellant merely on the basis of the latter’s failure to strike a plea bargain with the convening authority. While the sentence adjudged was lenient in comparison with the maximum authorized punishment and was within the range of punishments encompassed by the sentencing policy described in United States v. Caruth, supra, it was not markedly out of line with the average sentence adjudged for offenses of this type and does not, standing alone, establish that any sentencing agreement was reached in this case. III Appellant also asserts that the multiple representation of the appellant and his three co-accused at the joint Article 32, 10 U.S.C. § 832 investigation and at the joint Article 39(a) session of his trial resulted in the deprivation of his right to effective counsel. Our review of the record reveals no demonstrated conflicts of interest between the co-accused, particularly at the stages of the proceedings where multiple representation was present. Furthermore, the record establishes that the appellant had individual representation at his trial and expressed complete satisfaction with his legal representation after repeated ex [671] planations by the military judge of all his rights in that regard. Thus, under these facts, the holdings of the United States Court of Military Appeals in Evans2 and Davis,3 dealing with multiple representation at trial, are not applicable to the instant case. The remaining assigned errors have been carefully considered and found to be without merit or nonprejudicial to the appellant’s substantial rights. The findings of guilty and the sentence are AFFIRMED. Chief Judge CLAUSEN concurs. Footnotes [1] We note the language, contained in yet another form and used in the questioning of appellant by the military judge prior to arraignment, to the effect that appellant’s elections to be tried by a court consisting only of officer members and to be tried in common with three other co-accused were irrevocable. While this advice was incorrect, we find that appellant was neither prejudiced nor misled, as he subsequently was tried separately from the other three co-accused in a trial by military judge alone. [2] United States v. Evans, 1 M.J. 206 (C.M.A. 1975). [3] United States v. Davis, 3 M.J. 430 (C.M.A. 1977). The military judge in this case knew from the outset of the Article 39(a) session that each accused would have individual counsel at trial. Accordingly, there was no need for the exact inquiry suggested in Davis because it was apparent that there would be no multiple representation at trial. In Davis, the Court of Military Appeals did not address the multiple representation that was present in that case prior to the actual trial, i. e., at the Article 32 investigation, nor was there any specific inquiry adopted for that situation. We therefore conclude that such pretrial multiple representation in this case was nonprejudicial.