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DOES AN ACCUSED HAVE AN ABSOLUTE RIGHT TO REFUSE OR TO OBTAIN A CHANGE OF HIS GUILTY PLEA?

CDR CHARLES J. MACKRES, USNR*

'OR THE PURPOSES of this article, let us assume that you are sitting as a member of a court-martial or, perhaps, you have been appointed as a counsel to prosecute or defend an accused being tried by a military court. At the trial the accused pleads guilty. His plea of guilty is fully explained and it is accepted by the court as voluntary and provident. Can the accused, thereafter, at any time, during his trial, change his plea to not guilty, so as to place the traditional burden upon the government to prove his guilt of the offenses charged? Or, suppose, after the same guilty plea, the law officer (or president of a special court-martial) determines, for no stated reason, to change the plea to not guilty. This despite a clear insistence by the accused that he is guilty, and that his plea is made understandingly and providently. Can his guilty plea be changed to not guilty over his insistent objections? Can he change his guilty plea at will? Can it be changed against his will? Does the accused have a right to refuse or to obtain a change of his guilty plea? At first glance, it would seem that an accused, "presumed to be innocent until proved guilty", could always, at any time (and for any reason), change his plea to not guilty. Such is not the case. Similarly, it would seem that an accused ought to always be able to "bare his soul" and "repent" by the route of a judicial admission of guilt. This also is not true-as we shall see.

Digressing somewhat from our specific inquiry, we note that paragraph 70b, MCM 1951, and Article 45 of the Uniform Code of Military Justice, provide us with certain beginning guidelines related to situations involving the change of a guilty plea. Paragraph 70b, MCM 1951, at page 107 provides, in applicable part:

Whenever an accused, in the course of trial following a plea of guilty, makes a statement to the court, in his *Commander Charles J. Mackres, USNR, is presently assigned to the U.S. Navy-Marine Corps Judiciary Activity, Washington, D.C. He received his LL.B. degree from the University of Indiana in 1942 and is admitted to practice before the Supreme Court of the State of Indiana, Federal District Courts for Northern District of Indiana, the Supreme Court of the United States and the United States Court of Military Appeals.

testimony, or otherwise, inconsistent with the plea, the court will make such explanation and statement as the occasion requires. If, after such explanation and plea, it appears to the court that the accused in fact entered the plea improvidently or through lack of understanding of its meaning and effect, or if the accused does not voluntarily withdraw his inconsistent statement, the court will proceed to trial and judgment as if he had pleaded not guilty . . . When, after a plea of guilty has been received, the accused asks to be allowed to withdraw it and substitute a plea of not guilty or a plea to a lesser included offense he should be permitted to do so... (Emphasis supplied) Article 45 of the Uniform Code of Military Justice provides:

(a) If an accused arraigned before a court-martial makes any irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty. (b) A plea of guilty by the accused shall not be received to any charge or specification alleging an offense for which the death penalty may be adjudged.

(Emphasis supplied)

Reading these two sources of military law together, it would appear that they both state that in the event of an unresolved inconsistency following a guilty plea or a determination that the prior guilty plea was entered involuntarily, improvidently or through lack of understanding, the guilty plea shall be changed to not guilty. Although only generally applicable, and not within the specific scope of our inquiry here, the decisions of the Court of Military Appeals are legion declaring that a post-plea showing of inconsistency, involuntariness, improvidence," or

1. MCM, 1951, par. 70b.

2. UCMJ, art. 45, 10 USC 845.

3. United States v. Stanaway, 12 USCMA 552, 31 CMR 138 (1961); United States v. Hamill, 8 USCMA 464, 24 CMR 274 (1957); United States v. Welker, 8 USCMA 647, 25 CMR 151 (1958).

4. United States v. Butler, 9 USCMA 618, 26 CMR 398 (1958); MCM, 1951, par. 70a.

5. United States v. Henn, 13 USCMA 124, 32 CMR 124 (1962); United States v. Fernengel, 11 USCMA 535, 29 CMR 351 (1960).

lack of understanding requires a change of a guilty plea to one of not guilty at trial, or, on review, action which is not incompatable therewith. Such "curative" action, on review, may require dismissal of the charges,' dictate a rehearing or permit approval of an "uncontaminated" lesser included offense. Article 45, UCMJ, extends this required action to situations, also of no particular applicability to our accused here, involving irregular pleadings, failure or refusal to plead, and to offenses involving the death penalty. There is a particular interest, however, with regard to our specific area of inquiry, in that portion of paragraph 70b declaring that where an accused "asks to be allowed to withdraw" his guilty plea and substitute therefor a plea of not guilty or a plea of guilty to a lesser included offense, "he should be permitted to do so."

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Returning to the specific question at hand"does an accused have an absolute right to refuse or to obtain a change of his guilty plea?"let us first turn to the less frequent of the two situations, wherein the accused's guilty plea is changed, contrary to his objections and his insistent declaration of providency and understanding, to one of not guilty. The rule expressed in paragraph 70a of the Manual for Courts-Martial states, unqualifiedly, that "the court may refuse to accept the guilty plea." 10 The law officer (or president of a special courtmartial) has a duty to make decisions " and an absolute right to refuse to accept a plea of guilty regardless of a claim or appearance of providency, understanding or voluntariness. The accused has no vested interest in a guilty plea and a withdrawal of that plea against his desires can effect no legal prejudice with respect to the findings.12 As our courts have recognized that "findings and sentence are completely separate and distinct portions of military judicial procedure", the only possible prejudice, at a trial, "then and there in progress", might be one related to the sentence because of the existence of a pretrial agreement and a deprivation

13

6. United States v. Zemartis, 10 USCMA 353, 27 CMR 427 (1959); United States v. Harrell, 14 USCMA 517, 34 CMR 297 (1964). 7. United States v. Stanaway, supra note 3; United States v. Wille, 9 USCMA 623, 26 CMR 403 (1958).

8. United States v. Henn, supra note 5; United States v. Hamill, supra note 3.

9. United States v. Epperson, 10 USCMA 582, 28 CMR 148 (1959). 10. MCM, 1951, par. 70a.

11. United States v. Wilson, 7 USCMA 713, 23 CMR 177 (1957). 12. CM 401819, Scarbrough, 28 CMR 527 (1959). The concurring opinion, however, suggested that a court should not act capriciously or arbitrarily.

13. United States v. Miller, 10 USCMA 296, 27 CMR 370 (1959).

of its beneficial punishment limitations.14 This relatively untroublesome obstacle, however, is "curable", if appropriate, by action reducing an adjudged sentence which exceeds a pretrial agreement. Notice the phrase "then and there in progress." The only foreseeable limitation on this absolute authority to enter a not guilty plea is in the case of a rehearing ordered as to the sentence only. Although not squarely decided, there is some indication ("aside" comment, rather than ruling) that the rehearing court, in that instance, may be powerless to extend the rehearing order to a trial of the accused as to his guilt or innocence.15 Therefore, except possibly at a directed rehearing on the sentence only, the law officer (or president of a special court-martial), may, for reasons stated, or for no reason at all, change a guilty plea to one of not guilty, even though an accused may honestly and logically insist to the contrary. While, certainly, a "sound" guilty plea should not normally be changed arbitrarily or capriciously, the accused, nevertheless, has no legal standing to prevent such a change from being made.

On the other hand, however, where the accused requests to be allowed to change his plea to not guilty there are additional considerations. As well stated in the Friedman case:

16

The issue of a defendant's guilt or innocence is not involved in an application for leave to withdraw a plea of guilty. Upon such an application a trial court is not required to try the issue of guilt or innocence. The issue for determination is whether the plea of guilty was voluntarily, advisedly, intentionally and understandingly entered or whether it was, at the time of its entry, attributable to force, fraud, fear, ignorance, inadvertence or mistake such as would justify the court in concluding it ought not to be permitted to stand."

In the Friedman case, the accused was found guilty on his guilty plea and awarded a maximum sentence. Two days later he moved to vacate his sentence so he could withdraw his plea and stand trial. His reasons were that he misunderstood the seriousness of the offenses charged and that his counsel had advised him that he would only receive a small fine. The trial court denied the application. The Circuit Court of Appeals sustained the trial court's denial, declaring that there was no legal right (Continued on page 83)

14. CM 397051, Skinner, 24 CMR 427 (1957); CM 395163, Yelverton, 26 CMR 586 (1958).

15. United States v. Kepperling, 11 USCMA 280, 29 CMR 96 (1960); CM 397509, Collier, 26 CMR 529 (1958).

16. Friedman v. United States, 200 F.2d 690 (8th Cir. 1952). 17. Id. at 696.

RECENT SUPREME COURT CASES INTERPRETING

THE RIGHT TO COUNSEL

LT JOHN THOMAS MONTAG, USNR*

'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

O

NE OF THE rights guaranteed to an accused in a criminal prosecution by this, the Sixth Amendment to the Constitution of the United States, is the right to have the assistance of counsel in his defense.

This consitutional right to counsel has traditionally been interpreted by the courts as providing only that an accused has the right to such assistance of counsel at his actual criminal trial. Consequently, if the proceedings in question were not designed to adjudicate the accused's criminal responsibilities in any way, he had no right to be heard through his counsel at such proceedings. This point was made clear by the Supreme Court of the United States in the case of In Re Groban. The question presented to the Court was whether the accused had a constitutional right under the Due Process Clause of the Fourteenth Amendment to the assistance of their own counsel in giving testimony as witnesses in a proceeding conducted by the Ohio State Fire Marshal to investigate the causes of a fire.

A fire had occurred on the premises of a corporation owned and operated by the defendants. The Fire Marshal instituted an investigation to inquire into the causes of the fire and the defendants were subpoenaed to appear as witnesses. The defendants had retained counsel, but the Fire Marshal, relying on a provision of the Ohio Code which provided that the investigation could be private and that the Fire Mar

*Lieutenant John Thomas Montag, USNR, is presently assigned to the Appellate Defense Division in the Office of the Judge Advocate General. He holds the B.A. and LL.B. degrees from Duquesne University and is a member of the bar of the Supreme Court of Pennsylvania. He is admitted to practice before the United States Court of Military Appeals and is a member of the Allegheny County and American Bar Associations.

1. 352 U.S. 330 (1957).

shal could exclude all persons other than those required to be present, refused to permit the defendants' counsel to be present at the proceeding. The defendants declined to be sworn and to testify without the immediate presence of their counsel, who had accompanied them to the hearing. Their refusal was treated as a violation of another provision of the Ohio Code which provided that no witness should refuse to be sworn or should refuse to testify. Pursuant to still another provision of the Ohio Code providing that whoever did refuse to be sworn or to testify could be summarily punished by the officer concerned by commitment to the county jail until such time as they should be willing to testify, the Fire Marshal committed the defendants to the county jail.

The defendants applied for a writ of habeas corpus, which application was denied by the Ohio Court of Common Pleas. This denial was affirmed by the Ohio Supreme Court.

The United States Supreme Court held that the defendants had no constitutional right to be assisted by their counsel in giving testimony at the investigatory proceeding conducted by the Fire Marshal. The Court reasoned that while it is clear that a defendant in a state criminal trial has the unqualified right, under the Due Process Clause, to be heard through his own counsel, the prosecution of an individual is greatly different from an administrative investigation of incidents damaging to the economy or dangerous to the public. The Court noted that the proceeding before the Fire Marshal was not a criminal trial nor an administrative proceeding that would in any way adjudicate the appellants' responsibilities for the fire, but was a proceeding solely to elicit facts relating to the causes and circumstances of the fire.

Strangely enough, however, the Court further noted that the Fire Marshal's duty was to determine whether the fire was the result of carelessness or design and to arrest any person against whom there was sufficient evidence on which to base a charge of arson. Considering these facts

in the light of the recent decision of the Supreme Court in the Escobedo case, to be discussed hereinafter, it is doubtful whether the present

2. Escobedo v. Illinois, 378 U.S. 478 (1964).

Supreme Court's holding in a similar case would be the same.

Nonetheless, the Supreme Court held that the mere fact that the defendants were under a legal duty to speak and that their testimony might provide a basis for criminal charges against them did not mean that they possessed a constitutional right to the assistance of their counsel at the proceeding. If charges are ultimately made in a criminal proceeding against the defendants as a result of their testimony before the Fire Marshal, they may then demand the presence of their counsel for their defense, but until then, their protection must be found in the Fifth Amendment privilege against selfincrimination.

This, then, represents the traditional view taken by the courts concerning the Sixth Amendment right to counsel. In May and June of last year, however, the Supreme Court rendered two decisions which reflect a complete departure from this narrow, traditional view of the scope of the right to counsel provision.

The first of these decisions was handed down on 18 May 1964. The case was Massiah v. United States.3

Massiah had been indicted for violating the federal narcotics laws. He retained a lawyer, pleaded not guilty and secured his release on bail. While he was free on bail a man named Colson, who had been indicted with Massiah for violation of the federal narcotics laws, decided to cooperate with the federal authorities and permitted the installation of a concealed radio unit in his car. While seated in Colson's car, Massiah made certain admissions which were overheard by the police over this concealed radio set. These admissions were introduced into evidence against Massiah at his trial. Massiah contended that this procedure violated his right against unreasonable search and seizure and that the admission of these incriminating statements which had been made in the absence of his retained counsel violated his rights under the Fifth and Sixth Amendments. Massiah was convicted and his conviction was affirmed by the Court of Appeals. The Supreme Court granted certiorari to consider whether the prosecution's use at the trial of evidence of the petitioner's own incriminating statements deprived him of any right secured to him under the Federal Constitution.

The Supreme Court held that these incriminating statements had been improperly admitted into evidence, basing its decision on the right to

3. 377 U.S. 201 (1964).

The

counsel argument, thus finding it unnecessary to decide the search and seizure question. Court relied on the concurring opinion of four Justices in the case of Spano v. New York, wherein the Court had reversed a state criminal conviction because a confession had been wrongly admitted into evidence against the defendant at his trial.

The Court noted that in the Spano case four concurring Justices had indicated that the Constitution required that the conviction be reversed upon the sole and specific ground that the police had deliberately elicited the confession from the defendant after he had been indicted, a time when he was clearly entitled to a lawyer's aid. The Justices had pointed out that inasmuch as due process of law under our system of justice contemplates that an indictment be followed by a fair and orderly trial,

. . . a Constitution which guarantees a defendant the aid of counsel at such a trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding. Anything less, it was said, might deny a defendant "effective representation by counsel at the only stage when legal aid and advice would help him."5

The Court held that Massiah was denied the basic protections of the constitutional guarantee when there was used against him at his trial evidence of his own incriminating statements, which had been deliberately elicited from him by federal agents in the absence of his counsel after he had been indicted.

The decision in the Massiah case was followed, on 22 June 1964, by the case of Escobedo V. Illinois. Any doubt as to the meaning and extent of the Court's pronouncement concerning the right to counsel as laid down in the Massiah case, was put to rest by its decision in the Escobedo

case.

Escobedo had been convicted of the murder of his brother-in-law. The question presented to the Supreme Court was whether the refusal by the police to honor the petitioner's request to consult with his lawyer during the course of an interrogation constituted a denial of the assistance of counsel in violation of the Sixth Amendment and thus rendered any statement elicited by the police during the interrogation inadmissible in a state criminal trial.

On the night of the fatal shooting the petitioner had been arrested without a warrant and

4. 360 U.S. 315 (1959).

5. Massiah v. United States, supra note 3, at 204. 6. Supra note 2.

interrogated by the police.

Petitioner made no statement and was released the next afternoon pursuant to a state writ of habeas corpus obtained by a lawyer whom the accused had retained. Ten days later the petitioner was again taken into custody, although he was not formally charged, upon the basis of statements made by a co-accused claiming that the petitioner had fired the fatal shots.

Escobedo was subjected to extensive interrogation, during the course of which he repeatedly asked to speak to his lawyer. Moreover, petitioner's counsel had proceeded to the police station and had asked to see his client. Notwithstanding the repeated requests by each, during the course of the entire investigation the petitioner and his retained lawyer were afforded no opportunity to consult.

The Supreme Court, reciting its observation in the Massiah case that an indicted defendant under interrogation by the police is entitled to the aid of counsel, noted that although the interrogation of Escobedo was conducted before he had been formally indicted, that fact made no difference in the determination of the case. The important factor was not whether the defendant had been indicted, but whether the investigation had ceased to be a general investigation of an unsolved crime.

The Court observed that the petitioner needed the advice of counsel in the delicate situation in which he had been placed. The petitioner was then at the stage where legal aid and advice were most critical, since what happened at this interrogation could affect the entire trial. The Court held that "it would exalt form over substance to make the right to counsel, under these circumstances, depend on whether at the time of the interrogation, the authorities had secured a formal indictment." "

The Court then noted its decision in Gideon v. Wainwright, wherein it held that every person accused of a crime, whether state or federal, is entitled to a lawyer at trial. The court observed that "the rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the 'right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial examination.' In re Groban, 352 U.S. 330, 344 (Black, J., dissenting)." "

7. Id. at 486.

8. 372 U.S. 335 (1963).

9. Escobedo v. Illinois, supra note 2, at 487.

The Court next disposed of the State's contention that if the right to counsel be afforded a defendant prior to indictment, the number of confessions obtained by the police would diminish significantly because most confessions are obtained during the period from arrest to indictment and a lawyer would tell the suspect to make no statement to the police under any circumstances, by observing:

No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system.10 The Court then concluded:

We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied "the Assistance of Counsel" in violation of the Sixth Amendment to the Constitution as "made obligatory upon the States by the Fourteenth Amendment," Gideon v. Wainright, 372 U.S., at 342, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial."

Thus, when a police interrogation has ceased to be a general inquiry into an unsolved crime but has focused on the accused with a view toward obtaining a confession, the accused must be allowed to consult with his lawyer if he so requests.

The decision of the Supreme Court in Escobedo calls to mind the dissenting opinion of Mr. Justice Black in In re Groban, a portion of which was quoted by the Court in Escobedo. In his dissent in the Groban case, Justice Black stated:

I believe that it violates the protections guaranteed every person by the Due Process Clause of the Fourteenth Amendment for a state to compel a person to appear alone before any law-enforcement officer and give testimony in secret against his will. Under the reasoning of the majority every state and federal lawenforcement officer in this country could constitutionally be given power to conduct such secret compulsory examinations. This would be a complete departure

10. Id. at 490. 11. Id. at 490.

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