United States v. Petrosian

13 M.J. 695, 1982 CMR LEXIS 1014
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedApril 20, 1982
DocketNMCM 81 3605
StatusPublished
Cited by1 cases

This text of 13 M.J. 695 (United States v. Petrosian) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Petrosian, 13 M.J. 695, 1982 CMR LEXIS 1014 (usnmcmilrev 1982).

Opinion

MAY, Judge:

Api>ellant was convicted pursuant to his pleas, by special court-martial, military judge sitting alone, of one specification of unauthorized absence of approximately four months, in violation of Article 86, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886; nine specifications of bad check offenses in violation of Article 123a, UCMJ, 10 U.S.C. § 923a; one specification of wrongful possession of an altered military identification card with the intent to defraud, in violation of Article 134, UCMJ, 10 U.S.C. § 934; and one specification of breaking restriction, also in violation of Article 134, UCMJ. He was sentenced to a bad-conduct discharge, confinement at hard labor for 6 months, and forfeiture of $330.00 per month for 6 months.

The sentence as ultimately approved by the supervisory authority, suspended confinement at hard labor in excess of 115 days and total forfeitures in excess of $800.00 for [696]*696a period of 1 year from the date of trial, 7 May 1981.

Appellant was confined for a total of 65 days prior to trial and was released after serving 36 days in post-trial confinement. As his remaining unsuspended confinement sentence was not deferred, he has completed the serving of the 115 days of unsuspended confinement. Article 57, UCMJ, 10 U.S.C. § 857. A period of 65 days remains suspended for the duration of the suspension period.

Appellant now assigns two errors:

I
APPELLANT’S GUILTY PLEA TO CHARGE III AND THE SPECIFICATION THEREUNDER WAS IMPROVIDENT.
II
SINCE THE COMBINATION OF PRETRIAL CONFINEMENT AND CONFINEMENT ADJUDGED IS GREATER THAN THE MAXIMUM CONFINEMENT AUTHORIZED AS PUNISHMENT AT A SPECIAL COURT-MARTIAL, THE CONVENING AUTHORITY AND SUPERVISORY AUTHORITY, IN VIEW OF THEIR DUTY TO APPROVE ONLY AN APPROPRIATE SENTENCE, ERRED TO THE PREJUDICE OF APPELLANT’S SUBSTANTIAL RIGHTS BY NOT TAKING CORRECTIVE ACTION.

We find no merit in either assignment and will address each assignment in turn.

I

Appellant was specifically charged at trial with the wrongful possession of an altered military identification card with the intent to defraud in violation of Article 134, UCMJ. The identification card in question was apparently properly issued to appellant and did represent initially a valid DD Form 2N (Active) identification card in the name of the appellant with the correct social security number of appellant appearing on the card.

The specific nature of the alleged alteration involved the placing of a pin hole in the last digit (zero) of appellant’s social security number on the card. This alteration allegedly obscured the correct ending digit in order to facilitate cashing of personal checks utilizing fraudulent social security numbers.

Appellant now asserts that his plea to the charged offense was improvident in that he was charged with the wrongful possession of a “false” identification card and his statements presented during the providency inquiry only admitted the alteration of his own, valid, and properly issued military identification card, which under appellant’s definition, could not then, be “false.”

We do not agree. Our examination of the trial record, including the preferred charges, indicates that appellant was charged with the wrongful possession of an altered identification card. The trial record indicates that the military judge in explaining the elements of proof necessary to be established, stated, in part, that two of the five elements to be established were that the card was “false”; and that appellant had knowledge of the falsity of the card. Appellant acknowledged his understanding of those elements and during the subsequent providency inquiry stated, in regards to the alleged “falsity” of the card, that he altered the card by placing a pinhole in the center of the last zero in the social security number of the card. Appellant further stated that his purpose in so altering the card was to make it difficult to read the last digit of his social security number in order to facilitate the use of various invalid identification numbers in the cashing of checks which were the subject of the charges under Article 123a, UCMJ. Appellant further acknowledged that the identification card, so altered, bore a “false representation.”

The providency inquiry related to this specific charge encompassed two and a half pages of the trial record. We find the appellant was clearly not misled as to the charged offenses by either the written spec[697]*697ification or the advice related to the charged offense given by the trial judge. Those offenses commonly referred to as “pass offenses” under Article 134, UCMJ, are derived from federal statute, 18 U.S.C. § 499 (1970). See United States v. Warthen, 11 U.S.C.M.A. 93, 28 C.M.R. 317 (1959). Appellant’s now proferred interpretation of the term “false” is too limited. We find that the valid identification card of appellant, as altered, and as acknowledged by appellant, for purposes of fraud, clearly assumed the character of falsity recognized by the law. North American Accident Ins. Co. v. Tebbs, 107 F.2d 853, 855 (10th Cir. 1939); Sentinel Life Ins. Co. v. Blackmer, 77 F.2d 347, 351-52 (10th Cir. 1935). See also Gilbert v. United States, 370 U.S. 650, 82 S.Ct. 1399, 8 L.Ed.2d 750 (1962). Therefore, we find no merit in appellant’s first assignment of error.

II

Appellate defense counsel has submitted a comprehensive and informative brief on the issue of maximum authorized confinement. Whatever may be the subsequent resolution of this issue in other cases apparently now before the Court of Military Appeals, we find here that the issue is moot.

We are aware that the concept of mootness is inapplicable as a blanket cloak against appellate review when the demands of justice or the allegation of collateral consequences is asserted by an appellant who has completed service of a criminal sentence. See Levy v. Parker, 396 U.S. 1204, 90 S.Ct. 1, 24 L.Ed.2d 25 (1969); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Here, however, no assertion of collateral consequences has been raised by appellant. Instead, we are asked to apply policies applicable heretofore solely in federal civilian penal institutions. Appellant cites no persuasive authority to equate the sentence of a military court-martial and the attendant demands and needs of a military justice system to the far different needs and policies applicable in the civilian society. We reject appellant’s second assignment of error as moot. St. Pierre v.

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Bluebook (online)
13 M.J. 695, 1982 CMR LEXIS 1014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-petrosian-usnmcmilrev-1982.