United States v. Leslie

United States Court of Military Appeals

United States v. Leslie

11 M.J. 131, 1981 CMA LEXIS 14584

CourtUnited States Court of Military Appeals

DecidedJune 8, 1981

DocketNo. 39,148; NCM 79-0262

StatusPublished

Cited by8 cases

This text of 11 M.J. 131 (United States v. Leslie) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Leslie, 11 M.J. 131, 1981 CMA LEXIS 14584 (cma 1981).

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OPINION OF THE COURT

COOK, Judge:

By divided vote, the United States Navy Court of Military Review terminated accused’s case by setting aside findings of guilty of five specifications of larceny and dismissing the charge under which they were lodged. United States v. Leslie, 9 M.J. 646. Pursuant to Article 67(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2), the Acting Judge Advocate General of the Navy certified the decision to this Court for review of a specified question.¹ Relying upon United States v. McGlothing, 14 U.S.C.M.A. 392, 34 C.M.R. 172 (1964), the accused has moved to dismiss the certificate on the ground that the specified question presents no justiciable issue. Upon consideration of the pleadings and the oral arguments of counsel, we deny the motion.

In McGlothing, two members of the Board of Review (now Court of Military Review) acted on the accused’s case; the third member was absent and did not participate. On his pleas of guilty, the accused had been convicted of, among other offenses, 34 specifications of forgery and 1 specification of wrongful possession of an identification card. Except as to the wrongful possession offense, the board affirmed all the findings of guilty. As to the excepted offense, one member wrote an opinion setting out his determination that the specification did not state facts sufficient to allege the offense charged; and he stated that the findings of guilty thereon were “invalid.” The concluding paragraph of the opinion approved the other findings of guilty and the sentence. The second member of the board concurred only in the [132]*132result. The Acting Judge Advocate General of the Navy asked this Court to determine whether “the Board of Review [was] correct in holding that the specification .. . failed to allege an offense.” Remarking on the character of the special concurrence of the second member, the Court said: “There is, therefore, no holding by the board that the specification ... did not allege an offense,” and, therefore, the certificate for review presented “no certifiable issue.” Id. at 393, 34 C.M.R. at 173. In support of this summary assessment of the issue, the Court cited United States v. Leggio, 12 U.S.C. M.A. 319, 30 C.M.R. 319 (1961).

Leggio elucidates the McGlothing holding. As in McGlothing, two members of the board of review joined in the disposition.² Also, as in McGlothing, one member wrote an opinion, while the other concurred only in the result expressed in that opinion. When the decision was certified to this Court for review, the Court divided as to the meaning of the concurrence in result by the second member of the board of review whose vote was necessary to the validity of the board’s disposition of the case.

Judge Latimer maintained that when only a single legal issue is before the tribunal, a concurrence in result represents agreement with the legal determination expressed in the written opinion of the other member.³ A majority of the Court, however, held that a concurrence in result in respect to the written opinion of another member of the tribunal does not necessarily constitute agreement with “the expression of ... views” in that opinion. The Court went on to point out that, “aside from the question of legal error,” the disposition directed by the board could simply have been “the practical result” of the board’s authority to reassess a sentence for “appropriateness.” As this Court may not “only with respect to matters of law”⁴ and a decision on the appropriateness of a sentence does not normally represent a matter of law, the Court concluded that the certificate for review presented no “question ... [the Court was] empowered to review.” Id. at 320, 30 C.M.R. at 320.

What transpired here is different from what occurred in McGlothing and Leggio. In the latter cases, one of the two judges who joined in the disposition of the case gave no reason for concurring in the result. Here, the second judge particularized the predicate for his vote; his predicate was a perceived legal error different from that found by the first judge. United States v. Leslie, 9 M.J. 646 (N.C.M.R.1980). Further, the joinder of the two perceived legal errors produced dismissal of all the offenses of which the accused had been convicted, not simply an agreement on an appropriate sentence.

A Court of Military Review cannot dismiss all charges against an accused for reasons unsupported by the record of trial. United States v. Waymire, 9 U.S.C. M.A. 252, 26 C.M.R. 32 (1958). Here, each of the two judges who agreed on dismissal of the charges did so for a different legal reason. As both votes were essential to attainment of a majority decision, the incorrectness, as a matter of law, of either reason vitiates the majority. The Acting Judge Advocate General has asked review of the legal correctness of the first member’s determination “that a fatal variance” exists but not that of the second judge, who determined that “reversal [was] mandated for failure of the evidence” to support the findings of guilty. United States v. Leslie, supra at 655. The complexities inherent in review of factual determinations by a Court of Military Review may have dissuaded the Acting Judge Advocate General from including the second issue.⁵ Whatever the reason, however, the omission does not [133]*133change the fact that if this Court determines that no fatal variance exists between pleading and proof that ruling will have a material effect on the decision of the Court of Military Review. Compare United States v. Clay, 10 M.J. 269 (C.M.A.1981), with United States v. Gilley, 14 U.S.C.M.A. 226, 34 C.M.R. 6 (1963). We conclude, therefore, that a justiciable issue is present, and we deny the motion to dismiss.

Chief Judge EVERETT concurs.

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OPINION OF THE COURT

COOK, Judge:

By divided vote, the United States Navy Court of Military Review terminated accused’s case by setting aside findings of guilty of five specifications of larceny and dismissing the charge under which they were lodged. United States v. Leslie, 9 M.J. 646. Pursuant to Article 67(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2), the Acting Judge Advocate General of the Navy certified the decision to this Court for review of a specified question.¹ Relying upon United States v. McGlothing, 14 U.S.C.M.A. 392, 34 C.M.R. 172 (1964), the accused has moved to dismiss the certificate on the ground that the specified question presents no justiciable issue. Upon consideration of the pleadings and the oral arguments of counsel, we deny the motion.

In McGlothing, two members of the Board of Review (now Court of Military Review) acted on the accused’s case; the third member was absent and did not participate. On his pleas of guilty, the accused had been convicted of, among other offenses, 34 specifications of forgery and 1 specification of wrongful possession of an identification card. Except as to the wrongful possession offense, the board affirmed all the findings of guilty. As to the excepted offense, one member wrote an opinion setting out his determination that the specification did not state facts sufficient to allege the offense charged; and he stated that the findings of guilty thereon were “invalid.” The concluding paragraph of the opinion approved the other findings of guilty and the sentence. The second member of the board concurred only in the [132]*132result. The Acting Judge Advocate General of the Navy asked this Court to determine whether “the Board of Review [was] correct in holding that the specification .. . failed to allege an offense.” Remarking on the character of the special concurrence of the second member, the Court said: “There is, therefore, no holding by the board that the specification ... did not allege an offense,” and, therefore, the certificate for review presented “no certifiable issue.” Id. at 393, 34 C.M.R. at 173. In support of this summary assessment of the issue, the Court cited United States v. Leggio, 12 U.S.C. M.A. 319, 30 C.M.R. 319 (1961).

Leggio elucidates the McGlothing holding. As in McGlothing, two members of the board of review joined in the disposition.² Also, as in McGlothing, one member wrote an opinion, while the other concurred only in the result expressed in that opinion. When the decision was certified to this Court for review, the Court divided as to the meaning of the concurrence in result by the second member of the board of review whose vote was necessary to the validity of the board’s disposition of the case.

Judge Latimer maintained that when only a single legal issue is before the tribunal, a concurrence in result represents agreement with the legal determination expressed in the written opinion of the other member.³ A majority of the Court, however, held that a concurrence in result in respect to the written opinion of another member of the tribunal does not necessarily constitute agreement with “the expression of ... views” in that opinion. The Court went on to point out that, “aside from the question of legal error,” the disposition directed by the board could simply have been “the practical result” of the board’s authority to reassess a sentence for “appropriateness.” As this Court may not “only with respect to matters of law”⁴ and a decision on the appropriateness of a sentence does not normally represent a matter of law, the Court concluded that the certificate for review presented no “question ... [the Court was] empowered to review.” Id. at 320, 30 C.M.R. at 320.

What transpired here is different from what occurred in McGlothing and Leggio. In the latter cases, one of the two judges who joined in the disposition of the case gave no reason for concurring in the result. Here, the second judge particularized the predicate for his vote; his predicate was a perceived legal error different from that found by the first judge. United States v. Leslie, 9 M.J. 646 (N.C.M.R.1980). Further, the joinder of the two perceived legal errors produced dismissal of all the offenses of which the accused had been convicted, not simply an agreement on an appropriate sentence.

A Court of Military Review cannot dismiss all charges against an accused for reasons unsupported by the record of trial. United States v. Waymire, 9 U.S.C. M.A. 252, 26 C.M.R. 32 (1958). Here, each of the two judges who agreed on dismissal of the charges did so for a different legal reason. As both votes were essential to attainment of a majority decision, the incorrectness, as a matter of law, of either reason vitiates the majority. The Acting Judge Advocate General has asked review of the legal correctness of the first member’s determination “that a fatal variance” exists but not that of the second judge, who determined that “reversal [was] mandated for failure of the evidence” to support the findings of guilty. United States v. Leslie, supra at 655. The complexities inherent in review of factual determinations by a Court of Military Review may have dissuaded the Acting Judge Advocate General from including the second issue.⁵ Whatever the reason, however, the omission does not [133]*133change the fact that if this Court determines that no fatal variance exists between pleading and proof that ruling will have a material effect on the decision of the Court of Military Review. Compare United States v. Clay, 10 M.J. 269 (C.M.A.1981), with United States v. Gilley, 14 U.S.C.M.A. 226, 34 C.M.R. 6 (1963). We conclude, therefore, that a justiciable issue is present, and we deny the motion to dismiss.

Chief Judge EVERETT concurs.

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