UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and CELTNIEKS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist KESHA R. CONNER
                          United States Army, Appellant

                                   ARMY 20120821

                   Combined Joint Interagency Task Force – 435
                  333d Military Police Brigade – Task Force Titan
                         Andrew C. Efaw, Military Judge


For Appellant: Eric S. Montalvo, Esq.; Captain James S. Trieschmann, Jr., JA; (on
brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Daniel M. Goldberg, JA; Captain Michael J. Frank, JA (on brief).


                                  26 November 2014

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                               SUMMARY DISPOSITION
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Per Curiam:

       A panel of enlisted and officer members convicted appellant, contrary to her
pleas, of one specification of striking a superior commissioned officer and four
specifications of willfully disobeying the lawful order of a noncommissioned officer ,
in violation of Articles 90 and 91, Uniform Code of Military Justice, 10 U.S.C. §§
890, 891 (2006) [hereinafter UCMJ], respectively. The panel sentenced appellant to
a bad-conduct discharge, confinement for one month, forfeitures of $994 per month
for two months, and reduction to the grade of E-1. The convening authority
approved the sentence as adjudged.

       This case is before us for review pursuant to Article 66, UCMJ . Appellant
raises four assignments of error, one of which merits discussion and relief.
Appellant alleges that her 6th Amendment right to assistance of counsel was violated
because the military judge abused his discretion in denying her civilian defense
counsel’s requests for continuance, thereby forcing appellant to proceed with an
CONNER—ARMY 20120821

attorney she had previously attempted to release. We agree and grant relief in our
decretal paragraph.

                                  BACKGROUND

       Appellant was represented in this special court-martial by Mr. Montalvo, a
civilian attorney practicing in Washington, D .C., and Captain (CPT) S, who was
present in Afghanistan throughout the proceedings. Charges were referred on 31
May 2012. Appellant was arraigned on 11 June 2012 and indicated she desired to be
represented by CPT S alone. It appears that the first trial date in this cas e was set
for 4 July 2012. Mr. Montalvo filed a notice of appearance on behalf of appellant on
27 June 2012. Mr. Montalvo moved for a continuance on 29 June 2012, requesting
the case be continued until 7 September 2012. Mr. Montalvo provided a schedule of
his commitments to various trials and hearings in the United States, medical
procedures between 20 – 24 August 2012, and vacation between 27 August – 3
September 2012. Mr. Montalvo stated he was available to commence travel on 4
September 2012. The military judge set the trial date for 27 August 2012, stating in
his order that if Mr. Montalvo was unable to attend on this date he would be deemed
unavailable and the trial would be set for the first available date.

       On or about 9 July 2012, Mr. Montalvo’s law partner notified the military
judge that Mr. Montalvo had emergency surgery and was hospitalized. On 17 July
2012, Mr. Montalvo was again hospitalized for complications from his earlier
surgery. The military judge and Mr. Montalvo’s law partner communicated three
times regarding Mr. Montalvo’s condition, each time resulting in the communication
of uncertainty as to Mr. Montalvo’s availability to travel. On 22 July 2012, Mr.
Montalvo sent an e-mail to the military judge explaining his not insubstantial
medical issues and explaining that the vacation time Mr. Montalvo previously listed
in his motion for continuance was actually convalescent leave. The military judge
acknowledged this e-mail and wished Mr. Montalvo to get well soon. Mr. Montalvo
then filed a motion for reconsideration of the military judge’s previous continuation
motion on 30 July 2012 and asked the court to grant a continuance until 15
September 2012.

       The military judge denied this motion on 5 August 2012 and ordered the trial
date changed from 27 August to 10 August 2013. The military judge found that Mr.
Montalvo was unresponsive to the military judge as to his availability from 17 -31
July 2012 and that Mr. Montalvo acted in bad faith in his request for a continuance,
concluding he was attempting to game the system. The military judge also noted
that according to the government, no contact or arrangements had been made
regarding Mr. Montalvo’s travel to Afghanistan for the trial. Furthermore, the
military judge found appellant’s unit was due to redeploy in October 2012 and one
key witness had already redeployed during the continuances. The military judge did
not recognize the e-mail communication of 22 July 2012 about Mr. Montalvo’s



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medical issues in his ruling. Additionally, the record reflects that Mr. Montalvo did
send an e-mail to the trial counsel on 27 June regarding clearances and movement to
which the trial counsel never responded. Mr. Montalvo subsequently filed
unsuccessful writs with this court and our superior court on this issue. On 8 August
2012 appellant attempted to sever her attorney-client relationship with CPT S by
executing a release form, although CPT S was never formally released from this case
by the military judge.

       Trial was held on 29-30 August 2012. When the military judge explained
appellant’s right to counsel, appellant stated that she did not wish to proceed with
her military defense counsel (CPT S) but wanted to proceed with her civilian counsel
(Mr. Montalvo). The military judge stated that Mr. Montalvo is “not here” and that
appellant’s “choices today are to proceed with your appointed defense counsel, or to
proceed on your own.” The appellant then stated “I do not wish to participate.” The
appellant then became completely unresponsive to the military judge as he explained
pro se representation for four transcript pages. The military judge determined the
appellant had essentially absented herself from the proceedings “so we will continue
to proceed whether or not the accused participates or not.” The military judge then
granted assistant military defense counsel’s motion to withdraw as counsel in the
case, but denied CPT S’s motion to withdraw. When attempting to elicit a plea from
the appellant, CPT S stated on the record “Your honor, Specialist Connor is not
willing to cooperate with her defense. She requested that I not speak for her at all.
She—frankly sir, I’m not sure based on the recent events that I am prepared to go at
this point.” The military judge then entered a plea of not guilty for the appellant.
The military judge then noted that CPT S was prepared and ready to go two months
ago, and told CPT S that he would grant him additional time to talk to witnesses
before they take the stand. The trial then proceeded with CPT S acting as counsel to
the appellant.

                              LAW AND DISCUSSION

       We review a military judge’s decision to deny a continuance for abuse of
discretion. United States v. Weisbeck, 50 M.J. 461, 464 (C.A.A.F. 1999). An abuse
of discretion exists where the ruling of the trial judge is “clearly untenable and . . .
deprive[s] a party of a substantial right such as to amount to a denial of justice.”
United States v. Miller, 47 M.J. 352, 358 (C.A.A.F. 1997) (citations omit ted).
Abuse of discretion “does not imply an improper motive, willful purpose, or
intentional wrong” on the part of the military judge. Id. (quoting United States v.
Travers, 25 M.J. 61, 62 (C.M.A. 1987) (citations omitted) ). The factors used to
determine whether a military judge abused his or her discretion by denying a
continuance include “surprise, nature of any evidence involved, timeliness of the
request, substitute testimony or evidence, availability of witness or evidence
requested, length of continuance, prejudice to opponent, moving party received prior
continuances, good faith of moving party, use of reasonable diligence by moving



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party, possible impact on verdict, and prior notice.” Miller, 47 M.J. at 358
(citations and quotations omitted). See also United States v. Young, 50 M.J. 717
(Army Ct. Crim. App. 1999). Applying the Miller factors, we conclude that the
military judge abused his discretion by denying the continuance request by Mr.
Montalvo.

       First, Mr. Montalvo’s continuance was not a surprise to the military judge or
the government. Mr. Montalvo filed his notice of appearance in this case on 27 June
2012 and moved for a continuance two days later. Once Mr. Montalvo brought his
medical issues to the military judge’s attention, it was not unreasonable for the
military judge and the government to have anticipated further continuance requests.
Mr. Montalvo was in the United States and his client and the witnesses were in
Afghanistan. It is not surprising that Mr. Montalvo would be unable to adequately
prepare for a contested trial in the timeframe permitted by the military judge.
Although appellant’s case was not particularly complex, adequate preparation time
to interview witnesses and meet with appellant was certainly required. We do not
consider any of Mr. Montalvo’s requests for continuation, to include requests for
reconsideration, to be untimely.

      Second, we find Mr. Montalvo’s reasons for delay compelling. Mr. Montalvo
made it clear in his e-mail to the military judge on 22 July 2012 that he had medical
complications resulting from emergency surgery that hindered his ability to travel.
In addition, Mr. Montalvo presented the military judge with a requested trial date of
15 September 2012, a date only one week later than that proposed in his original
request for continuation. Mr. Montalvo’s request for a continuance was reasonable
under the circumstances. 1 Despite the military judge’s findings following Mr.
Montalvo’s request for reconsideration of 30 July 2012 that Mr. Montalvo’s “lack of
responsiveness to the Court and apparent failure to make transportation
arrangements into theatre indicate a lack of good faith ,” we find no basis to conclude



1
  We are not unmindful that granting such a request would have potentially obviated
the issue of appellant’s right to civilian counsel of choi ce under Article 38, UCMJ.
See United States v. Donohew, 18 U.S.C.M.A. 149, 152 39 C.M.R. 149, 152 (1969)
(holding right to civilian counsel in courts -martial “a most valuable right accorded
by law”). On the broader issue of choice of counsel, given tha t Mr. Montalvo’s
request for continuance was essentially consistent throughout the course of this case,
with the exception of requesting an additional eight days considering his medical
issues, the military judge’s ruling effectively denying counsel of cho ice was
problematic. See United States v. Gonzales-Lopez, 548 U.S. 140, 150 (2006) (“We
have little trouble concluding that erroneous deprivation of the right to counsel of
choice, with consequences that are necessarily unquantifiable and indeterminate,
unquestionably qualifies as structural error.”) (quoting Arizona v. Fulminante, 499
U.S. 279, 282 (1991) (internal quotation marks omitted)).


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Mr. Montalvo failed to act with due diligence, failed to act in good faith, or
requested or benefited from any prior continuance. 2

       There was some evidence of prejudice to the government of the type
anticipated by Miller, 47 M.J. at 358-59, considering one witness had left the theater
of operation, and the fact that Appellant’s unit was scheduled to redeploy in October
2012. Recognizing the government’s interest in the fair, orderly, and effective
administration of justice in a deployed environment, we are convinced the military
judge abused his discretion in this case finding that said government interest
outweighed the appellant’s valuable right to choose counsel. “It ought to be an
extremely unusual case when a man is forced to forego civilian counsel and go to
trial with assigned military counsel rejected by him.” Id. at 358 (quoting Kinard, 21
U.S.C.M.A. at 303, 45 C.M.R. at 77. Although “the right to civilian counsel is not
absolute,” both our superior court and the Supreme Court have noted “an
unreasoning arbitrary insistence upon expeditiousness in the face of a justifiable
request for delay violates the right to the assistance of counsel.” United States v.
Thomas, 22 M.J. 57, 59 (quoting Morris v. Slappy, 461 U.S. 1,11-12 (1983)). While
we do not diminish the government’s concerns, the totality of circumstances
presented by the facts available to the military judge lead to the conclusion that he
abused his discretion in the balancing of applicable interests.

        Where a military judge denies a continuance request made for the purpose of
obtaining civilian counsel, prejudice to the accused is likely. Miller, 47 M.J. at 359.
It is difficult to imagine that prejudice would not be presen t in a case where the
appellant insists upon the representation of civilian counsel, and appellant is forced
to participate in a trial with assigned military counsel she has attempted to release
and with whom she refuses to communicate. Such are the facts in the case here.

       We are cognizant that the military judge was attempting to ensure the
“prompt, fair administration of justice.” Young, 50 M.J. at 721. We further
understand the inherent difficulties he faced as a trial judge in Afghanistan
coordinating this court-martial in a combat zone involving activated reserve
component units, civilian counsel in the United States, and a delay of over sixty
days from referral at the time of the 5 August 2012 ruling denying a continuance.

2
  Likewise, there is nothing to suggest appellant sought to “vex the government with
needless delay.” United States v. Kinard, 21 U.S.C.M.A. 300, 304, 45 C.M.R. 74,
78 (1972). She timely retained civilian counsel well before the scheduled trial date.
See United States v. Alicea-Baez, 7 M.J. 989 (A.C.M.R. 1979) (denial of appellant’s
request for unspecified delay to obtain civilian counsel on day of trial after ample
pretrial delay and opportunity not an abuse of discretion.); see also United States v.
Phillips, 37 M.J. 532 (A.C.M.R. 1993) (no abuse of discretion to deny further
continuance after appellant’s repeated d elays to obtain civilian counsel,
demonstrating an intent to avoid trial).


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Nonetheless, we are compelled to conclude, and the facts compellingly demonstrate,
that the military judge abused his discretion by forcing appellant to proceed to trial
with CPT S, thereby materially prejudicing appellant’s substantial rights. In light of
that, we do not find it necessary to reach appellant’s additional allegations of error. 3

                                    CONCLUSION

      Accordingly, the approved findings of guilty and sentence are set aside. A
rehearing may be ordered by the same or a different convening authority.


                                          FOR THE
                                         FOR  THE COURT:
                                                  COURT:




                                         MALCOLM H. SQUIRES, JR.
                                         MALCOLM H. SQUIRES, JR.
                                         Clerk of
                                                of Court
                                                   Court
                                         Clerk




3
 Mr. Montalvo continues to represent appellant on appeal and alleged before this
court that CPT S provided ineffective assistance of counsel. Captain S filed an
affidavit in response, to which he appended an email from Mr. Montalvo evidencing
Mr. Montalvo’s plan to “create such a record of ridiculous [sic] that the case will
have to be overturned if it proceeds.” Further, Mr. Montalvo ordered CPT S to do
nothing but address his detailing in this case: “he will not argue motions, present
evidence, make objections, nothing [sic].” Captain S, however, upon receiving
advice from Trial Defense Services and his state bar, defended appellant at trial.
Nothing in this decision condones Mr. Montalvo counseling his client in a manner to
encourage creating reversible error in t he trial. In addition, nothing in this decision
should be read to intimate that CPT S provided anything other than effective,
professional representation under extremely difficult circumstances. The rights of
appellant, not the conduct of counsel, were t he paramount considerations in this
decision.


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