                        UNITED STATES, Appellee

                                    v.

              Makisha I. MORTON, Private First Class
                       U.S. Army, Appellant

                              No. 09-0185

                       Crim. App. No. 20060458

       United States Court of Appeals for the Armed Forces

                       Argued November 17, 2009

                          Decided May 5, 2010

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.

                                 Counsel

For Appellant: Captain Pamela Perillo (argued); Lieutenant
Colonel Jonathan F. Potter, Lieutenant Colonel Mark Tellitocci,
and Major Grace M. Gallagher (on brief).

For Appellee: Captain Nicole L. Fish (argued); Colonel Denise
R. Lind, Lieutenant Colonel Francis C. Kiley, and Major
Christopher B. Burgess (on brief); Colonel Norman F. J. Allen
III and Major Adam S. Kazin.



Military Judge:   Debra L. Boudreau



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Morton, No. 09-0185/AR


     Judge BAKER delivered the opinion of the Court.

     Appellant was tried before a military judge sitting as a

general court-martial.   In accordance with her pleas, she was

convicted of making a false official statement, larceny, and

forgery (two specifications) in violation of Articles 107, 121,

and 123, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§

907, 921, 923 (2000) respectively.    She was also convicted,

contrary to her plea, of obstructing justice, in violation of

Article 134, UCMJ, 10 U.S.C. § 934 (2000).    The adjudged

sentence included a bad-conduct discharge, confinement for

twenty-four months, forfeiture of $750 pay per month for twenty-

four months and reduction to pay grade E-1.   Pursuant to a

pretrial agreement, the convening authority approved confinement

for eight months and forfeiture of $750 per month for eight

months, but otherwise approved the remainder of the sentence as

adjudged.    The United States Army Court of Criminal Appeals

(CCA) affirmed.    United States v. Morton, No. 20060458, 2008 CCA

LEXIS 615, at *10-*11 (A. Ct. Crim. App. Sept. 30, 2008).

However, the court found that the plea inquiry could not support

the two forgery specifications and instead affirmed two

violations of making false official statements, under Article

107, UCMJ.   Id.




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United States v. Morton, No. 09-0185/AR


     The granted issue tests the continuing vitality, of the so-

called “closely related offense” doctrine.1   In light of the

abiding principle of fair notice to an accused, we hold that

this doctrine, as currently relied upon by appellate courts in

upholding guilty pleas in the military justice system, is no

longer viable.

                           BACKGROUND

     The issue in the case revolves around Appellant’s guilty

plea to the two forgery specifications.2   Appellant’s statements


1
  On Appellant’s petition, we granted review of the
following issue:

     WHETHER, AFTER FINDING THE EVIDENCE FACTUALLY
     INSUFFICIENT TO SUPPORT A FINDING OF GUILTY TO THE
     ADDITIONAL CHARGE AND ITS SPECIFICATION (FORGERY), THE
     ARMY COURT ERRED IN FINDING APPELLANT GUILTY OF A
     LESSER INCLUDED OFFENSE ON A THEORY NOT PRESENTED TO
     THE TRIER OF FACT.

We note that the lower court in this case actually affirmed
the findings of guilty based on the closely related offense
doctrine rather than the lesser included offense doctrine.
Thus, notwithstanding Appellant’s framing of the issue, we
will address the closely related offense doctrine.
2
  The specifications at issue comprised the Additional Charge and
were set forth as follows:

     SPECIFICATION 1: In that Private First Class Makisha I.
     Morton, U.S. Army, did . . . on or about 4 January 2006,
     with intent to defraud, falsely alter a certain DD Form 689
     (“Individual Sick Slip”) dated 1-4-06 in the following
     words and figures, to wit: altering the time authorized
     for quarters in the “Remarks” section of the form from an
     uncertain number to “7,” which said DD Form 689 . . .
     would, if genuine, apparently operate to the legal harm of
     another.

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United States v. Morton, No. 09-0185/AR


during the plea inquiry and a stipulation of fact established

that on January 4, 2006, Appellant reported to sick call for

medical care due to her pregnancy.3    Her superiors had instructed

her to return to the unit with whatever instructions the doctor

provided.     A nurse issued Appellant a DD Form 689 (Individual

Sick Slip) indicating that she should be placed “on quarters for

72 hours.”4    However, before turning the slip in to her unit,

Appellant altered the slip by changing the “72” to “7” and then

falsely represented that she had been assigned “7 days of

quarters.”    Appellant admitted to the military judge that she

altered the slip with the intent to defraud her unit into giving

her an additional four days on quarters, which she received.

Morton, 2008 CCA LEXIS 615, at *8.

     Seven days later on January 11, 2006, Appellant’s squad

leader ordered her to report to sick call to determine whether

she was fit to return to duty.    She was again directed to bring



     SPECIFICATION 2: In that Private First Class Makisha I.
     Morton, U.S. Army, did . . . on or about 11 January 2006,
     with intent to defraud, falsely alter a certain DD Form 689
     (“Individual Sick Slip”) dated 1-11-06 in the following
     words and figures, to wit: altering the date from “1-4-06”
     to “1-11-06,” which said DD Form 689 . . . would, if
     genuine, apparently operate to the legal harm of another.
3
  The brief factual recitation used here is taken in relevant
part from the lower court’s opinion.
4
  Appellant’s chain of command relied on the sick slip to excuse
her from official duties that she otherwise would have had to
perform.

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United States v. Morton, No. 09-0185/AR


what documentation she was given back to her squad leader.    The

same nurse Appellant saw previously gave her a sick slip

indicating that she should be placed on quarters for the next

twenty-four hours.   Appellant returned to her quarters, made a

copy of the slip she was given on January 4 and changed the date

to January 11, 2006.   She submitted this altered slip to her

unit, ostensibly authorizing an additional seven days on

quarters as opposed to the actual authorized twenty-four hours.

Id.

       The CCA concluded that the factual basis described above

could not support a conviction for the two forgery

specifications under Article 123, UCMJ.    Id. at *2-*3.

Nonetheless, citing United States v. Epps, 25 M.J. 319, 323

(C.M.A. 1987), and United States v. Hubbard, 28 M.J. 203, 205-06

(C.M.A. 1989), the lower court affirmed two violations of making

false official statements under Article 107, UCMJ, under the

closely related offense doctrine.     2008 CCA LEXIS 615, at *3-

*11.   The court stated, “We are satisfied that the two

specifications alleging violations of Article 123, UCMJ, put the

appellant on notice that she could be convicted under Article

107, UCMJ, because the elements of both are substantially the




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United States v. Morton, No. 09-0185/AR


same, with only minor technical variance.”5    Id. at *5 (footnotes

omitted).6

                                   I

       The underlying question presented in this case is whether

or not Appellant’s plea is provident in light of the fact that

the CCA affirmed Appellant’s conviction based on the closely

related offense doctrine.    Heretofore, the closely related

offense doctrine, as applied to guilty pleas, has allowed an


5
    The elements of Article 107, UCMJ, are:

       (1)   That the accused signed a certain official document or
             made a certain official statement;
       (2)   That the document or statement was false in certain
             particulars;
       (3)   That the accused knew it to be false at the time of
             signing it or making it; and
       (4)   That the false document or statement was made with the
             intent to deceive.

Manual for Courts-Martial, United States pt. IV, para. 31(b)
(2005 ed.) (MCM). The elements of Article 123, UCMJ –- Forgery,
making or altering -- are:

       (a)   That the accused falsely made or altered a certain
             signature or writing;
       (b)   That the signature or writing was of a nature which
             would, if genuine, apparently impose a legal liability
             on another or change another’s legal rights or
             liabilities to that person’s prejudice; and
       (c)   That the false making or altering was with the intent
             to defraud.

MCM, pt. IV, para. 48(b).
6
  The court purported to amend the two forgery specifications
charged under Article 123, UCMJ, to allege violations of Article
107, UCMJ, and then affirmed the amended specifications. 2008
CCA LEXIS 615, at *10-*11.

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United States v. Morton, No. 09-0185/AR


appellate court to “uphold a conviction when the providence

inquiry clearly establishes guilt of an offense different from

but closely related to the crime to which the accused has

pleaded guilty.”    United States v. Wright, 22 M.J. 25, 27

(C.M.A. 1986) (citing United States v. Graves, 20 M.J. 344, 346

(C.M.A. 1985); United States v. Felty, 12 M.J. 438 (C.M.A.

1982)).    Felty, the apparent genesis of the doctrine, involved a

plea of guilty to escape from custody.      12 M.J. at 439.    Felty,

a Marine, was in pretrial confinement at the time of the

offense.    Id.   He was escorted by another Marine to his

magistrate’s hearing for review of the decision ordering him

into pretrial confinement.    Id.    The military magistrate

determined that Felty should remain in confinement and ordered

him returned to the brig.    Id.    When the escort asked Felty

whether he had been ordered returned to the unit or back to the

brig, Felty falsely replied that he had been ordered returned to

the unit.   Id.    En route to the unit area, the two stopped at

the dining facility for lunch.      Id.   While the two were at the

dining facility, Felty departed without proper authority and

entered a period of unauthorized absence.      Id. at 440.

     The Court of Military Appeals concluded that Felty’s

statements during the plea inquiry established that he had

escaped from confinement rather than custody.      Id. at 442.

Although both offenses are proscribed under Article 95, UCMJ, 10


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United States v. Morton, No. 09-0185/AR


U.S.C. § 895, the Court concluded that escape from confinement

and escape from custody are different offenses because they

require proof of distinct elements.     Id. at 440.   Nonetheless,

because the offenses were proscribed by the same article, and

carried the same maximum punishments, in the view of the Court,

this amounted to a “technical variance” without resulting in

material prejudice to the accused under Article 59, UCMJ, 10

U.S.C. § 859.   Id. at 442.   The Court upheld the conviction for

escape from custody since the accused’s admissions indicated he

was guilty of escape from confinement notwithstanding the fact

that the accused was apparently not guilty of the charged

offense and had neither pleaded to nor had he been charged with

escape from confinement.   Id.

                                   II

     This closely related reasoning in Felty was applied in

subsequent appellate contexts.     In Graves, for example, the

accused pleaded guilty to receipt of stolen property under

Article 134, UCMJ.   20 M.J. at 344.    After some discussion as to

whether the accused had in fact “received” the stolen property,

the Court upheld the plea based on the accused’s interpretation

of the situation.    Id. at 346.   Suggesting an alternative theory

for upholding the plea, however, the Court stated that the

accused “probably was an accessory after the fact to the crime

of larceny” under Article 78, UCMJ, 10 U.S.C. § 878, a


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United States v. Morton, No. 09-0185/AR


completely different statutory offense.    Id.     The Court

concluded that “Graves has little cause for complaint, even

though his accuser might better have charged him as an accessory

after the fact -- or might even have preferred separate charges

against him as a receiver and as an accessory in order to

prepare for possible exigencies of proof.”    Id.

     The Court applied a similar analysis in Epps.       There the

accused pleaded guilty to larceny.   25 M.J. at 319.     On appeal,

this Court found “an additional basis for upholding the pleas”

by concluding that the accused’s statements during the plea

inquiry indicated that he was guilty of the closely related

offense of receipt of stolen property, again a completely

different statutory offense.   Id. at 323.    The Court then stated

the essence of the closely related offense doctrine:      “Felty and

its progeny establish that, if an accused pleads guilty and then

at the providence inquiry, he gives sworn testimony which

clearly establishes his guilt of a different but closely-related

offense having the same maximum punishment, we may treat that

accused’s pleas of guilty as provident.”     Id.    In Hubbard, this

Court appeared to move the doctrine yet a step further.        This

Court characterized its holding in Wright, 22 M.J. at 27, as

having “affirmed findings of guilty for ‘closely-related’ crimes

when the authorized sentence was substantially similar to that




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United States v. Morton, No. 09-0185/AR

which an accused could receive had he been found guilty of the

proper crime.”   28 M.J. at 206 (emphasis added).

     Notably, the Court’s analysis in this line of cases is

based on neither the text of the UCMJ, nor the MCM.      It is also

inconsistent with more recent cases stressing the importance of

fair notice in the context of guilty pleas and an accused’s

right to understand to what he is pleading guilty and on what

basis.    See, e.g., United States v. Medina, 66 M.J. 21, 26

(C.A.A.F. 2008); United States v. Lubasky, 68 M.J. 260, 265

(C.A.A.F. 2010).   Furthermore, the doctrine does not appear to

be supported by particularized consideration of any

congressional or presidential authority under Article I or

Article II of the Constitution regarding regulation of the armed

forces.

                                 III

     The problem with the “closely related offense” doctrine is

that it suggests that appellate courts can affirm a plea of

guilty on the basis that the accused’s admissions during the

plea colloquy establish his guilt to a different uncharged,

albeit closely related, offense.      “[A]n accused has a right to

know to what offense and under what legal theory he or she is

pleading guilty.   This fair notice resides at the heart of the

plea inquiry.”   Medina, 66 M.J. at 26.     Allowing an appellate

court to affirm guilt based on an offense with which the accused


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United States v. Morton, No. 09-0185/AR

has not been charged, which is not a lesser included offense of

the charged offense, or to which he has not entered a plea of

guilty is inconsistent with the principle iterated in Medina and

other recent decisions of this Court concerning the issue of

fair notice.   See, e.g., United States v. Miller, 67 M.J. 385,

389 (C.A.A.F. 2009) (overruling on notice and due process

grounds United States v. Foster, 40 M.J. 140 (C.M.A. 1994),

which held that clauses 1 and 2 of Article 134, UCMJ, were per

se included in every enumerated offense).   That said, an accused

may choose, with convening authority approval, to plead guilty

to any amended specification as long as the plea inquiry

establishes that such a plea is knowing and voluntary and the

plea is accepted by the military judge.7

     It is the Government’s responsibility to determine what

offense to bring against an accused.   Aware of the evidence in

its possession, the Government is presumably cognizant of which

offenses are supported by the evidence and which are not.   In

some instances there may be a genuine question as to whether one

offense as opposed to another is sustainable.   In such a case,

the prosecution may properly charge both offenses for exigencies

of proof, a long accepted practice in military law.   United

7
  We have held that the convening authority’s entry into a
pretrial agreement that calls for pleas of guilty to offenses
different from those charged is the “functional equivalent” to
an order referring those offenses to the court-martial. United
States v. Wilkins, 29 M.J. 421, 424 (C.M.A. 1990).

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United States v. Morton, No. 09-0185/AR

States v. Villareal, 52 M.J. 27, 31 (C.A.A.F. 1999); United

States v. Medley, 33 M.J. 75, 76 (C.M.A. 1991); United States v.

Heyward, 22 M.J. 35, 37 (C.M.A. 1986).    In cases where offenses

are pleaded for exigencies of proof, depending on what the plea

inquiry reveals or of which offense the accused is ultimately

found guilty, the military judge may properly accept the plea

and dismiss the remaining offense.

                             CONCLUSION

     Affirming a guilty plea based on admissions to an offense

to which an accused has not in fact pleaded guilty and which is

not a lesser included offense of the charged offense is

inconsistent with traditional due process notions of fair

notice.

     The decision of the United States Army Court of Criminal

Appeals is reversed as to specifications 1 and 2 of the

Additional Charge and those specifications and the charge are

dismissed.   The decision as to the remaining findings is

affirmed.    The record of trial is returned to the Judge Advocate

General of the Army for remand to that court for reassessment of

the sentence.




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