UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            CONN, HOFFMAN, and GIFFORD
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                       Private E1 JOCELYN R. FRANKLIN
                          United States Army, Appellant

                                   ARMY 20090035

                              Headquarters, Fort Drum
                  Andrew Glass and Michael Hargis, Military Judges
              Lieutenant Colonel Steven P. Hester, Staff Judge Advocate

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller,
JA; Major Grace M. Gallagher, JA; Lieutenant Colonel Jonathan F. Potter JA (on
brief).

For Appellee: Colonel Norman F. J. Allen, III, JA; Lieutenant Colonel Martha L.
Foss, JA; Major Christopher B. Burgess, JA (on brief).

                                   20 January 2010

                              ----------------------------------
                               OPINION OF THE COURT
                              ----------------------------------

Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
consistent with her pleas, of making, drawing, uttering, or delivering a check, draft,
or order and thereafter wrongfully and dishonorably failing to maintain sufficient
funds (three specifications), in violation of Article 134, Uniform Code of Military
Justice, 10 U.S.C. §934 [hereinafter UCMJ]. The military judge sentenced appellant
to a bad-conduct discharge and confinement for six months. Pursuant to a pretrial
agreement, the convening authority limited confinement to sixty days and otherwise
approved the adjudged sentence. This case is before the court for review pursuant to
Article 66, UCMJ.

       Appellant was charged, inter alia, with 26 specifications of making and
uttering checks with intent to defraud, in violation of Article 123a, UCMJ. In a
pretrial agreement with the convening authority, appellant agreed to plead guilty to
the above stated lesser-included Article 134 offense for Specifications 24, 25, and
26 of Charge I. Consistent with that agreement, appellant signed a stipulation of
FRANKLIN – ARMY 20090035


fact detailing the circumstances surrounding those offenses. On her behalf, her
defense counsel entered pleas of guilty to the lesser-included offense for
Specifications 24, 25, and 26 of Charge I, but inadvertently failed to enter a plea of
guilty to the Charge itself. The military judge conducted a thorough inquiry
establishing the factual basis for appellant’s plea. At the conclusion of the military
judge’s providence inquiry on the plea, in accordance with the pretrial agreement,
the government moved to conform the Charge and Specifications to appellant’s plea
and dismiss the remaining offenses. The military judge granted the government’s
motion and subsequently found appellant guilty of all Specifications of the Charge
and the Charge.

       On appeal, appellant contends the findings and sentence in her case must be
set aside, because she never entered a plea of guilty to any charge, but only pled
guilty to the specifications thereunder. Counsel for appellant cite to Article 45(a)
for the proposition that if an accused fails to plead, “a plea of not guilty shall be
entered in the record, and the court shall proceed as though he has pleaded not
guilty.” See also Rule for Court-Martial [hereinafter R.C.M.] 910(b). 1 However, the
entry of a plea is not an objective in itself. See United States v. Taft, 44 C.M.R.
122, 123 (C.M.A. 1971). Rather, the intent behind Article 45(a) is to ensure a trial
on the merits when an accused fails to enter a plea on his own behalf, not to force a
trial on the merits when an accused inadvertently omits the words “to the Charge:
Guilty.” Id.

       A charge amounts to a statement of the Article of the Code or other law
allegedly violated. R.C.M. 307(c)(2). A specification is a concise statement of the
essential facts constituting the offense charged. R.C.M. 307(c)(3). We agree with
appellant that failure to enter a plea to both the charge and its specifications
amounts to an irregular plea; however we find this procedural irregularity harmless.
Failure to enter a plea does not, in itself, amount to a denial of due process.
Garland v. Washington, 232 U.S. 642, 645 (1914).

       Our sister courts have held pleading guilty to a charge without pleading to an
underlying specification is not reversible error where the record clearly reflects an
appellant’s intended plea. United States v. Green, 64 M.J. 625, 628-29 (C.G. Ct.
Crim. App. 2007); United States v. Williams, 47 M.J. 593, 594-95 (N.M. Ct. Crim.
App. 1997). It is also well settled that the failure to make findings as to a charge is
immaterial because an accused's criminality is determined by the findings as to the
specification, not the charge. See United States v. Perkins, 56 M.J. 825, 827 (Army
Ct. Crim. App. 2001); United States v. Dilday, 47 C.M.R. 172 (A.C.M.R. 1973).



1
  The discussion to R.C.M. 910(b) amplifies the rule by explaining that an explicit
plea which negates criminality or is internally inconsistent (such as a plea of guilty
to a charge but not guilty to all underlying specifications) must be clarified or a plea
of not guilty entered on an accused’s behalf.



                                           2
FRANKLIN – ARMY 20090035


       On facts nearly identical to appellant’s case, the Air Force Court held failure
to enter a plea to the charge does not affect the pleas of guilty to the specifications
thereunder. United States v. Logan, 15 M.J. 1084, 1085 (A.F.C.M.R. 1983). We
specifically adopt this holding. 2 Further, we find the law clearly reflects failure to
enter a plea or finding to either a charge or a specification must result in an
ambiguity as to a plea or finding in order to constitute prejudicial error.
 
       Appellant’s plea did not result in an ambiguity and therefore does not
constitute prejudicial error. Appellant signed a pretrial agreement with the
convening authority, which identified both the charge and specifications to which
appellant plead guilty. Consistent with that agreement, appellant signed a
stipulation of fact detailing the factual elements of the offenses. Both appellant and
her counsel were fully aware of the offense charged. See United States v. Reyes, 48
C.M.R. 832, 833 (A.C.M.R. 1974) (Failure to arraign the accused was neither
jurisdictional nor prejudicial error where intended pleas are clear from record).
Appellant was present throughout the trial. Id. Additionally, the military judge
defined and discussed each offense with appellant, and she indicated her
understanding of the elements of each offense as part of her plea colloquy. See
United States v. Napier, 43 C.M.R. 262, 267 (C.M.A. 1971) (Omissions from
arraignment did not require overturning conviction). Appellant knew and
understood each of the offenses to which she pled guilty. Id. Thus, appellant’s
omission of a plea to the Charge after she entered her pleas of guilty to the
Specifications of the Charge did not violate her due process rights. 3

                                    CONCLUSION

       We have examined the record of trial and have concluded that the findings
and sentence are correct in law and fact. The omission of a plea of guilty to the
Charge did not amount to a due process violation, did not deprive the court of
jurisdiction to try the case, and we find no prejudice as a result. See Taft, 44 C.M.R.
at 124. Accordingly, the findings of guilty and the sentence are affirmed.
                                         FOR THE COURT:
                                         FOR THE COURT:



                                         MALCOLM H. SQUIRES, JR.
                                         Clerk of CourtH. SQUIRES, JR.
                                         MALCOLM


2
 This appears to have been the conclusion of our court in United States v. Lanier, 50
M.J. 772, 773-774 n.2 (Army Ct. Crim App. 1999). By this opinion, we make this
holding the clear precedent of this court.
3
 Practitioners should not understand our holding to condone a lack of attention to
detail. By properly and completely entering pleas and findings for both the charge
and specification(s) for each offense, any potential for ambiguity is foreclosed.


                                           3
