United States v. Arrington

concurring;

Because I have to date consistently dissented in cases in which the trial judge failed to ask the so-called comportment question1 “required” by United States v. Green, 1 M.J. 453 (C.M.A. 1976), and United States v. King, 3 M.J. 458 (C.M.A. 1977), but am concurring under similar circumstances in the case sub judice, I feel an explanation is in order. My volte-face is occasioned primarily by a uniform pattern of denials of petitions by the United States Court of Military Appeals in cases which involve this precise omission.2 While Chief Judge Fletcher has admonished us not to engage in such speculations,3 I nevertheless feel that, under the totality of the post-King decision situation, ignoring such repetitive and undeviating conduct by our Supreme *753Court would be tantamount to closing my eyes to an onrushing front-end-loader. Plainly, as to this facet of our law, which was metagrobolized by the Green/King decisions, the moving finger has writ.4

, I do not regret surrendering this redoubt as I have considered it to be of dubious tactical value from the outset.5 Now that it appears our judicial superiors have decided that whenever a record of trial establishes that an accused fully understands the terms of his pretrial agreement it matters nought that counsel has not expressed on the record their accord with the trial judge’s interpretation of that agreement, I am delighted to join that Court and my fellow judges on this Court in that view.

OPINION OF THE COURT

Appellant was convicted, pursuant to his pleas, of two specifications of possession and two specifications of transfer of marihuana, in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934, and one absence without leave, in violation of Article 86, UCMJ, 10 U.S.C. § 886. Appellant contends that the inquiry into the providence of his pleas did not satisfy the requirements of United States v. Care1 and United States v. Green.2

The pretrial agreement provided that appellant could withdraw his pleas anytime prior to pronouncement of the sentence. This provision was explained by the military judge, who determined that appellant understood the meaning and effect of the provision. This inquiry satisfied the requirements of Green, but the provision inaccurately states the right to withdraw a plea of guilty. See paragraph 70b, Manual for Courts-Martial, United States, 1969 (Revised edition). The military judge subsequently advised appellant correctly that he could request to withdraw the pleas after findings for good cause. We find the providence of the pleas was unaffected by the imprecise language contained in the agreement. Despite the lack of a specific comportment inquiry of counsel, we find that the mandate of the Court of Military Appeals has been met. United States v. Eas*752ley, 4 M.J. 768 (A.C.M.R. 1977), pet. denied, 5 M.J. 132 (C.M.A. 1978).

In conducting the Care inquiry, the military judge thoroughly discussed all the elements of each offense and then elicited a detailed factual basis for every specification. With regard to the Article 134 offenses, the appellant acknowledged, inter alia, the illegality of his acts, that he had no legal justification, and that his acts were to the prejudice of good order and discipline in the service. Under the facts and circumstances developed on this record, we do not believe that the military judge had any additional duty to determine how, in the appellant’s opinion, his acts were prejudicial to good order and discipline. That is not the type of factual inquiry envisioned by Care, and the complete factual development in this case makes it clearly inapposite to United States v. Terry, 21 U.S.C.M.A. 442, 45 C.M.R. 216 (1972), relied upon by appellant in support of his contention.

The additional assignment of error has been considered and found to be without merit or nonprejudicial to appellant’s substantial rights.

Based upon the rationale in United States v. Williams, 18 U.S.C.M.A. 78, 39 C.M.R. 78 (1968), however, we hold that the multiplicious offenses of possession should be dismissed. For the reasons stated in United States v. Walters, 47 C.M.R. 93 (C.M.A. 1973), no sentence relief is warranted.

The findings of guilty of Specifications 1 and 3 of Charge I are set aside and those charges are dismissed. The remaining findings of guilty and sentence are AFFIRMED.

concurring in the result:

I concur in Senior Judge Carne’s analysis of the assigned errors and in the affirmance of the sentence. I disassociate myself from the dismissal of Specifications 1 and 3 of Charge I.