UNITED STATES, Appellee v. GERALD N. GRIFFIN, Staff Sergeant, U. S. Army, Appellant, 15 C.M.A. 135

Opinion of the Court Kilday, Judge: Appellant was arraigned before a general court-martial convened by the Commanding General, United States Army Armor Center, Fort Knox, Kentucky, charged with absence without leave, and four specifications of drawing bad checks with intent to defraud, in violation of Articles 86 and 123a, Uniform Code of Military Justice, 10 USC §§ 886 and 923a, respectively.

When appellant was called upon to plead, in open court, his defense counsel responded, in the presence of appellant, that he pleaded guilty to the charge and specification of absence without leave and not guilty to each of the charges and specifications as to the drawing of bad checks. The law officer did not hold an out-of-court hearing to inquire into the basis for the appellant’s pleas, as entered by counsel, nor did he make explanation of the legal rights of the appellant in this situation. Appellant was found guilty of all of the offenses charged.

He was sentenced to a bad-conduct discharge, total forfeitures, confinement at hard labor for one year, and reduction to the lowest enlisted grade. The 'convening authority approved the proceedings, and a board of review in the office of The Judge Advocate General of the Army affirmed the findings of guilty of absence without leave. However, it disapproved the findings of guilty of all of the bad check offenses and dismissed those charges. The board approved only so much of the sentence as provides for total forfeitures, confinement at hard labor for nine months, and reduction to the lowest enlisted grade.

This Court granted review on the following issue: “THE LAW OFFICER ERRED IN FAILING TO MAKE PROPER INQUIRY AS TO THE PROVIDENCY OF THE ACCUSED’S PLEA OF GUILTY TO CHARGE I AND ITS SPECIFICATION, CREATING MORE THAN A FAIR RISK OF IMPROVIDENCY.” We observe that both parties have briefed and argued the case on the issue of prejudicial error in the failure of the law officer, before accepting the plea of guilty, to explain the meaning and effect thereof as required by paragraph 706(2), Manual for Courts-Martial, United States, 1951. We shall consider the issue in like manner.

We also observe that the offense of which appellant stands convicted involved a fifty-three day unauthorized absence, during which period all of the alleged bad checks charged in the other specifications were drawn. Paragraph 705, Manual for Courts-Martial, United States, 1951, provides the procedure for all cases fn which a plea of guilty is entered in general, special, or

summary courts-martial. Being a matter of procedure and not being inconsistent with the Uniform Code of Military Justice, these provisions have the force of law.

Article 36 of the Code, 10 USC § 836; United States v Smith, 13 USCMA 105, 32 CMR 105. Paragraph 706, supra, provides, in pertinent part, as follows: “Procedure if plea of guilty is entered. — The following procedure is prescribed for all cases in which a plea of guilty is entered: “

(1) In general and special court-martial cases, the plea of guilty will be received only after the accused has had an opportunity to consult with the counsel appointed for or selected by him. If the accused has refused counsel, the plea should not be received. “

(2) Before accepting a plea of guilty the meaning and effect thereof will be explained to the accused by the law officer of a general court-martial, or the president of a special court-martial or by the

summary court-martial unless it otherwise affirmatively appears that the accused understands the meaning and effect thereof. . See 53h.

Such explanation will include the following— “That the plea admits every act or omission alleged and every element of the oifense charged (or of the lesser included offense to which it relates) and authorizes conviction of the oifense to which the plea relates without further proof; “That the maximum punishment authorized for the oifense to which the accused has pleaded guilty may be adjudged upon conviction thereof; “That unless the accused indicates that he understands the meaning and effect of the plea as explained, the plea of guilty will not be accepted. See appendix 8a for an example of such explanation. “

(3) The explanation made and the reply of the accused thereto will be set forth verbatim in the record of trial of a general court-martial or of a special court-martial in which a verbatim record is kept. In other records of trial by special court-martial the substance of the explanation and reply will be set forth in the record of trial. In records of trial by

summary court-martial, the fact that a plea of guilty was explained will be recorded in the space provided.” Paragraph 70b, supra, is strikingly similar to Rule 11, Federal Rules of Criminal Procedure, which reads as follows: “A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.

If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.” In United States v Robinson, 13 USCMA 674, 33 CMR 206, we had occasion to consider the importance of a plea of guilty and there equated the provisions of paragraph 70b to Rule 11. In Robinson, however, the question was not identical to the question here involved.

In the Robinson case we pointed out: “The question, and the only question, before us is whether a ‘plea of guilty’ entered prior to the lawful convening of the court-martial, and out of the presence of the persons appointed to constitute the court-martial, is sufficient to support a finding of guilty.” [United States v Robinson, supra, at page 679.] See Kercheval v United States, 274 US 220, 71 L ed 1009, 47 S Ct 582 (1927). In the civilian Federal courts compliance with Rule 11, supra, is required.

United States v Lester, 247 F2d 496 (CA 2d Cir) (1957); Kennedy v United States, 249 F2d 257 (CA 5th Cir) (1957); cf. Kennedy v United States, 259 F2d 883 (CA 5th Cir) (1958). In United States v Butler, 9 USCMA 618, 26 CMR 398, Chief Judge Quinn made the following observation: “A plea of guilty is a judicial confession. Perhaps even more than a pretrial confession, therefore, it must appear that the plea is made voluntarily. Shelton v United States, 242 F2d 101, 246 F2d 571 (CA 5th Cir) (1957), reversed and remanded on confession of error by the Solicitor General, 356 US 26, 2 L ed 2d 579, 78 S Ct 562 (1958).

To that end, the trial judge must inquire into the circumstances and determine that the plea is the product of the accused’s own free will and desire to confess his guilt. In other words, the trial judge must determine that the plea is voluntary. “. . . Consequently, the law officer was entirely correct in conducting a further examination of the accused before ‘finally accepting’ the. plea. The difficulty with his examination, however, is that it did not go far enough.

Not only should he have ascertained, as he properly did, that the accused understood the meaning and effect of the plea and the punishment to which he was subject, but also that the accused was entering the plea freely and voluntarily, without promise or coercion.” [United States v Butler, supra, at pages 619, 620.] The Government contends that the law officer is under no duty to explain to an accused the meaning and effect of a guilty plea when it affirmatively appears that an accused understands the meaning and effect thereof.

We point out, however, that at this stage of the trial before any court-martial, and specifically before this court-martial, the record contains nothing from which such an affirmative appearance could exist. In all trials before courts-martial the provisions of paragraph 70 b should be observed. In that connection, while the record does not reveal what occasioned the law officer’s omission to advise appellant and make inquiry of him, we are willing to assume his lapse was merely inadvertent.

However, we deem it appropriate to point out that compliance with the requirements of paragraph 70 & would insure against any accused entering a guilty plea involuntarily or without full knowledge of the import thereof. It is to be stressed that proper inquiry, made at trial as the law requires, would obviate any necessity for dealing with such matters after the fact, at the appellate level. We hold that it was error in this case for the law officer to have accepted appellant’s plea of guilty without having complied with any of the provisions of paragraph 706(1), 706(2), 706(3).

II Nevertheless, in accordance with

Article 59(a), Uniform Code of Military Justice, 10 USC § 859, it becomes our obligation to determine whether the error, above mentioned, materially prejudiced the substantial rights of the accused. United States v Butler, supra. We point out that paragraph 706 (2), supra, requires that the meaning and effect of a plea of guilty be explained to an accused “unless it otherwise affirmatively appears that the accused understands the meaning and effect thereof.” Similar language does not appear in Rule 11, supra. In construing Rule 11, however, practically identical language has been used.

In United States v Davis, 212 F2d 264, 267 (CA 7th Cir) (1954), the court said: “We do not mean to say that a District Court must in every case follow a particular ritual in order to comply with Rule 11. A brief discussion with the defendant regarding the nature of the charges may normally be the simplest and most direct means of ascertaining the state of his knowledge. Or there may be other circumstances from which it is evident that the defendant has the requisite understanding.

See Michener v United States, 8 Cir., 181 F2d 911, 918; United States v Denniston, 2 Cir., 89 F2d 696, 698, 110 ALR 1296.” In United States v Swaggerty, 218 F2d 875 (CA 7th Cir) (1955), cert den, 349 US 959, 99 L ed 1282, 75 S Ct 889 (1955), the foregoing language is quoted with approval. At no stage of the proceedings, including this Court, has any contention been made that appellant was not guilty of absence without leave.

Appellant does not contend that his plea was the result of any consideration other than his guilt; it is not contended that such plea was ill-advised nor does anything appear in this record to indicate the improvidency of the plea other than the naked claim posed by the language in the assignment of error, to which we have adverted. In United States v Butler, supra, this Court examined into this state of case and held that, to justify reversal for a deficiency in complying with paragraph 706, supra, it must appear that the same prejudiced the substantial rights of the accused. Chief Judge Quinn there said: “. . .

True, the law officer made crystal clear to the accused he was not bound by the pretrial agreement and that, despite it, he could enter a plea of not guilty. He did not, however, specifically inquire into the vol-untariness of the accused’s plea. He should have done so. And with commendable candor the Government admits the deficiency. Under the circumstances, however, we cannot say that the law officer’s failure prejudiced the accused. . . He does not now claim that his plea was the result of any consideration other than his own ‘consciousness of guilt.’ Wharton, Criminal Evidence, 12th ed, § 345.

Nor does he claim that his plea was improvident or ill-advised. The record of proceedings shows that after full explanation of his right to have the case ‘contested in open court’ he requested his defense counsel to inform the convening authority that he ‘voluntarily’ desired to plead guilty. We conclude that the inadequacy of the law officer’s inquiry was not such as to deprive the accused of due process of law or cast doubt upon the correctness of his conviction or the voluntariness of his plea.

See United States v Chandler, CM 399665, July 9, 1958.” [United States v Butler, supra, at page 620.] This language is in marked contrast to the language and holding of the Supreme Court in Von Moltke v Gillies, 322 US 708, 720, 92 L ed 309, 68 S Ct 316 (1948): “. . .

For, assuming the correctness of the two latter contentions, we are of the opinion that the undisputed testimony previously summarized shows that when petitioner pleaded guilty, she did not have that full understanding and comprehension of her legal rights indispensable to a valid waiver of the assistance of counsel.” Appellant was represented at his trial by the certified defense counsel, a captain in The Judge Advocate General’s Corps, who had been appointed defense counsel several months before trial.

Defense counsel, throughout the trial, evidenced clear understanding of his case and a previously conceived strategy upon which it would be difficult- to improve. His defense was based upon a question of law as to the sufficiency of notice of nonpayment of the checks to dispense with necessity for proof of intent to defraud and lack of funds, under the new bad check provision in

Article 123a, Uniform Code of Military Justice, supra, and the Addendum to Manual for Courts-Martial, United States, 1951, January 1963, covering the same. While he did not prevail before the court-martial, the identical question was decided in his favor by the beard of review on what appears to be a question of first impression. This holding resulted in the dismissal of four specifications of violation of

Article 123a and a reassessment of the sentence, eliminating the bad-conduct discharge and reducing the period of confinement from twelve months to nine months. We agree that the presence of counsel in a trial by court-martial does not eliminate the necessity for the law officer to explain to an accused the meaning and effect of a plea of guilty. However, the presence of counsel is a circumstance which may fairly be taken into account in determining the nature and extent of the inquiry to be made.

It hardly seems reasonable to assume that thoroughly competent military counsel, as this record shows trial defense counsel to be, overlooked the necessity for knowledge in this area by his accused. That appellant was laboring under no such misapprehension seems clear from his evident intelligence, experience, study of law, and the fact that pleas of not guilty to four specifications were entered and a plea of guilty to the specification of absence without leave.

Another, and even stronger circumstance is shown by appellant’s sworn testimony prior to sentence when he was asked: “Do you feel you would ever go AWOL from the service again?” to which he answered, “No, sir.” We earlier pointed out that appellant has at no time denied his guilt of absence without leave. From the record it also appears that in a post-trial interview with a staff judge advocate, he again acknowledged his guilt of that offense.

See Gundlach v United States, 262 F2d 72 (CA4th Cir) (1958), cert den, 360 US 904, 3 L ed 2d 1255, 79 S Ct 1283; United States v Diggs, 304 F2d 929 (CA 6th Cir) (1962); United States v Davis, supra. This record reveals that the appellant had completed high school, was thirty years of age and of superior intelligence, being possessed of a 143 GT score. Prior to his service in the Army, he served for approximately ten years in the United States Marine Corps, reaching the grade of staff sergeant. At the time of trial he had served in the Army for approximately three years and was a staff sergeant.

Principally from documentary evidence submitted on behalf of appellant in the hearing prior to sentence, it is made evident that during his military service he completed the following schools and courses of instruction: Marine Corps Institute Chemical Warfare Defense Course, Radiae Instruments Course, and Marine Noncommis-sioned Officer Course; The CBR Enlisted Course at Army Chemical Corps School (graduated number 1 in a class of 49 students); Marine Corps Division First Sergeant’s School (graduated number 1 in a class of 26); U. S. Army 6th CBR Enlisted Course; U. S. Naval School for Instructors; U. S.

Army Crime Prevention Course (excellent rating) ; U. S. Army Course in Investigative Methods and Preservation of Evidence (superior rating) ; U. S. Army Course, Authority and Jurisdiction, Department of Army Security Police (excellent rating); Marine Basic Supply Procedures; U. S. Air Force Instructor’s Course; U. S. Air Force Air Traffic Control Fundamentals Course; U. S. Navy Air Controlman Course; Marine Course in Bookkeeping I (99.12% grade average). The record also reveals that, while serving in the Marine Corps, appellant pursued a course in Commercial Law through the University of South Carolina.

That the education, experience, and intelligence of an accused are circumstances to be taken into consideration in assessing qUestion before us is sustained by cases in this Court and other Federal courts as well. United States v Butler, supra; Gundlach v United States, supra; United States v Kniess, 264 F2d 353 (CA 7th Cir) (1959). In justice to appellant we should state that the record reflects he was never previously charged with a violation of law, either civilian or military.

We believe, however, that cases we have cited in which appellate courts have considered previous appearances of the accused to defend charges against him are valid.

Surely the appellant, with thirteen years of military service in both the Marine Corps and Army with the grade of staff sergeant in each, successful completion of the Marine Corps First Sergeant’s School (with a standing of number one); the Naval School for Instructors; the Army Course in Crime Prevention; the Army Course in Investigative Methods and Preservation of Evidence; Army Course, Authority and Jurisdiction, Department of Army Security Police; the Air Force Instructor’s Course, and others detailed above, manifestly had a broad understanding of the whole matter.

The charge and specifications were read to him by his commanding officer before the same were referred to trial and a copy subsequently served upon him. We could not, with reason, conclude that appellant was not fully aware of the meaning and effect of the plea of guilty, and the elements of and punishment for absence without leave. We find no fair risk that the error of the law officer, in failing to explain to appellant the meaning and effect of his plea of guilty, materially prejudiced appellant’s substantial rights. The decision of the board of review is affirmed. Chief Judge Quinn concurs.