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Tim Bilecki

Proceeding in Revision

Jul 18, 2012
In United States v. Boie, ACM 37546 (A.F. Ct. Cim. App. 011) (slip op.) the Appellant was convicted by officer and enlisted members, in accordance with his pleas, among other things, of one specification of the attempted killing of an unborn child and assault consummated by a battery. The appellant was upset that his girlfriend got pregnant and researched ways to induce an abortion. He eventually bought a drug known to cause abortions and secretly put it in his girlfriend’s food and drink, which she allegedly consumed at least once. The girlfriend miscarried at eight weeks. The accused was initially charged with the intentional killing of an unborn child in violation of Article 119a. After losing various motions related to the constitutionality of Article 119a, the accused entered a pretrial agreement in which he pled guilty to the attempted killing of an unborn child and assaulting his girlfriend. The plea agreement for the assault consummated by a battery charge excepted the words “to induce a miscarriage” and substituted the words “in an effort to induce a miscarriage.” Boie at 12. When the military judge announced the findings, however, he mistakenly found the appellant not guilty of the substituted words. No member of the court noticed this mistake until after the court adjourned. Before the record was authenticated, the military judge held an R.C.M. 1102 hearing to determine if he could correct the error. The military judge found it was the appellant’s intent to plead guilty to the substituted words and only the military judge’s mistake prevented that from happening. The military judge also determined there would be no prejudice to the appellant if the finding was corrected because the specification only carried a six-month maximum punishment and the adjudged sentence was substantially less than the maximum punishment for all the guilty offenses. The military judge re-announced the findings.

The AFCCA had to decide whether the military judge was prohibited by R.C.M. 1102(c)(1) from holding a proceeding in revision to correct a finding in a guilty plea where the judge mistakenly announced the appellant not guilty of a specification the appellant pied guilty to?

The AFCCA held that here was no error in the proceeding in revision because the military judge did not hold the proceeding in revision to reconsider a finding of not guilty. Id. at 13. A proceeding in revision cannot be held to reconsider a finding of not guilty, or any ruling that amounts to a finding of not guilty. R.C.M. 1102(c)(1). If the findings are erroneously announced by a court-martial, they may be corrected, but only before final adjournment of the case. R.C.M. 922(d) (referring to R.C.M. 1102 for erroneous findings discovered after adjournment). Despite these clear rules, the court found no error in the R.C.M. 1102 hearing. The court avoids the clear mandate of R.C.M. 1102 by focusing on the fact the appellant “providently pled .. . with the intent of being found guilty of assaulting his wife with the intent of inducing a miscarriage . . . supported by a pretrial agreement, the stipulation of fact, and his colloquy with the military judge.” Boie at 13. The proceeding in revision “was not accomplished for the purpose of reconsidering the military judge’s inadvertent finding of not guilty to the substituted words, but to rectify a mistake that had been made during the announcement of findings and to reflect the judge’s intent to find the appellant guilty ” The court said the error should be corrected because “[fairness and common sense, not technicalities, should rule the law.” Id. at 13 (citation omitted). The court rejected “a doctrine which permits an error in expression to mean immunity for a person who has judicially admitted his guilt.” Id. at 14 (citing United States v. Downs, 15 C.M.R. 8,11 (C.M.A. 1954). The court also held that even if the proceeding in revision was held in error, such error was harmless. The court found the words “in an effort to induce a miscarriage” irrelevant. Id.

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