United States v. Schaffner

OPINION OF THE COURT PER CURIAM: On 3 December 1982, the initial session of Schaffner’s trial was held. At that session, the trial judge advised him of his forum rights and asked Schaffner to make an election. Schaffner requested a jury trial with enlisted members. He was then arraigned and entered pleas of not guilty to the several charges. The trial was then continued until 14 December 1982. At the opening Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a) (1976), session of the second session of Schaffner’s trial, the prosecutor informed the trial judge that the court members had already been called and were scheduled to arrive in just over an hour. When asked if there was anything else to take up at the Article 39(a), supra, session, the trial defense counsel replied that Schaffner desired to change his pleas to guilty and also desired to be tried by judge alone. Schaffner’s counsel told the trial judge that the decision to request trial by judge alone had been reached the previous day. The prosecution objected to the change in forum and pointed out that this was the second time Schaffner had changed his mind concerning forum and that notification of the latest change was not given until 1600 hours on 13 December. The trial defense counsel responded that there was yet sufficient time to contact the court members and that any inconvenience would be compensated for by the time and expense saved by a judge alone trial. The judge ruled: If this wasn’t the second time that this situation had been changed in such a short period of time, I might be inclined to go along with the request, if we could get the court members called off. But, particularly since I did issue notice at the last hearing of any changes in forum, pleas, or anything of that nature, should be made in a timely fashion, I feel, at this point, that the request for judge alone is untimely. This is the second time we’ve had these court members show up, only to be dismissed, on this particular case. The first time was because counsel weren’t ready to go to trial. So, if there is a request for trial by judge alone made, I will deny that .... [Ijt’s not just in this particular case. There are any number of cases here, in the future. This case stands out because this would be the second time that the court members have been called and have been sent away without performing their duties. I think that that is an unreasonable burden to place on the government to have to keep calling court members in and sending them off and it’s an unreasonable burden to put on those court members. If they can be fair and honest in their decision, [905] and they have been a fair and just court in the period of time that they’ve set, I believe it is in the best interest of all that we proceed with this case as a jury trial. Your request for trial by judge alone will be denied. Schaffner was convicted upon his pleas of guilty to the wrongful sale of five grams of marijuana, an assault upon a person in the execution of police duties, and the wrongful communication of a threat. He was sentenced to a bad-conduct discharge, confinement at hard labor for three months, forfeiture of $367.00 pay per month for three months, and reduction to the grade of Private E-l. The sentence was approved. Schaffner asserts that the trial judge erred by denying his request for trial by judge alone and that a rehearing on the sentence is thus required. We disagree. There is “no absolute right by the accused to a trial by military judge alone.” United States v. Butler, 14 M.J. 72, 73 (C.M.A.1982). The ruling of the trial judge on the matter is not, however, immune from review. Rather, his ruling is reviewable for an abuse of discretion. Ibid. While reasonable men might have ruled differently on Schaffner’s judge alone request, such is not the test for an abuse of discretion. The decision of the trial judge was based upon reasonable considerations and was within the sound exercise of his discretion. Cf. United States v. Ward, 3 M.J. 365 (C.M.A.1977); United States v. Winn, 46 C.M.R. 871 (A.C.M.R.1972). The findings and sentence are affirmed.