United States v. Sergeant NICHOLAS A. PATLA

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before CONN, HOFFMAN, and GIFFORD Appellate Military Judges UNITED STATES, Appellee v. Sergeant NICHOLAS A. PATLA United States Army, Appellant ARMY 20100809 Headquarters, Fort Campbell Timothy Grammel, Military Judge Lieutenant Colonel Joseph B. Morse, Staff Judge Advocate For Appellant: Major Laura R. Kesler, JA; Captain Jennifer A. Parker, JA. For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed. 22 March 2011 ----------------------------------- SUMMARY DISPOSITION ----------------------------------- Per Curiam: A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of false official statement, forgery, two specifications of larceny, and false swearing, in violation of Articles 107, 121, 123, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 907 , 921, 923 and 934 [hereinafter UCMJ]. The military judge sentenced appellant to reduction to the grade of E1, forfeiture of $964 pay for 10 months, confinement for 10 months, and a bad conduct discharge. In accordance with a pretrial agreement, the convening authority approved the sentence as adjudged but reduced the confinement to 6 months. The convening authority also deferred and waived the adjudged and automatic forfeitures for a period of not more than 6 months, in accordance with Article 58b, UCMJ. This case is before this court on review pursuant to Article 66(c), UCMJ. While no assignment of error was raised on appeal, we determined that appellant’s plea to forgery is legally deficient. Consequently, we set aside appellant’s conviction for forgery reflected in the specification of Charge II. FACTS Appellant’s charged offenses of false official statement and forgery arose when he created in whole a letter to present to his chain of command. While not part of the record, the letter was purportedly signed by a doctor from Vanderbilt Institute for Medical and Public Health. The letter indicated the doctor was treating appellant’s newborn son for a lifethreatening lung condition and recommended an extension of appellant’s leave. In fact, appellant’s newborn was perfectly healthy and had not been treated by either the named doctor or the hospital. In pertinent part, the specification of forgery stated, “said letter would, if genuine, apparently operate to the legal harm of another and which could be used to the legal harm of Dr. B.C. and Vanderbilt, The Institute for Medical and Public Health, in that the letter creates a doctor patient relationship.” During providency, the judge sought to establish how the letter established a legal harm. In response, appellant stated, “[the letter] made [the Doctor] liable for any care that was to happen.” In explaining how the hospital could be harmed, appellant stated, “it would make not only the doctor but the hospital liable for any care that was given; anything that went wrong, it would make them liable for as well.” Finally, the judge asked, “So if something happened where your son had complications with his lungs, respiratory problems, would this document, could that be used to the legal harm of both [the doctor] and Vanderbilt?” Appellant replied, “Yes, it would, sir.” Law and DISCUSSION Article 123, UCMJ, subjects to punishment any soldier who, with intent to defraud- (1) falsely makes or alters any signature to, or any part of, any writing which would, if genuine, apparently impose a legal liability on another or change his legal right or liability to his prejudice; or (2) utters, offers, issues, or transfers such a writing, known by him to be so made or altered ... The Manual discussion of the offense explains: “With respect to the apparent legal efficacy of the writing falsely made or altered, the writing must appear either on its face or from extrinsic facts to impose a legal liability on another, or to change a legal right or liability to the prejudice of another.” Para. 48c(4), Part IV, Manual for Courts-Martial, United States, 2008 (emphasis added). However, it is the document itself, and not extrinsic facts, which must apparently impose the liability. United States v. Hopwood, 30 M.J. 147, 147 (C.M.A. 1990); See generally, Legal Efficacy in a Guilty Plea Case, The Army Lawyer, May 1991, 36, 37. “The mere making of a false signature or other entry on a document is not, in itself, sufficient to constitute forgery; the apparent nature of the document is also critical.” United States v. Thomas, 25 M.J. 396, 398 (CMA 1988). In Thomas, a faked letter of reference in support of a loan application was insufficient to constitute forgery. The Thomas court likewise provided several examples of cases in which documents containing false and apparently fraudulent information were nonetheless found not to impose the requisite legal liability or harm required to constitute the offense of forgery. See, e.g., United States v. Strand, 6 U.S.C.M.A. 297 , 20 C.M.R. 13 (1955) (false letter using Naval messaging system telling accused's spouse he had been killed in an automobile accident); United States v. Farley, 11 U.S.C.M.A. 730, 732 , 29 C.M.R. 546 (1960) (fraudulent application for life insurance); United States v. Phillips, 34 C.M.R. 400 (1964) (a copy of an allotment authorization). Thomas, 25 M.J. at 399-400 . In light of these legal standards, in the present case we find that, while appellant made a factually supportable guilty plea to the offense of forgery, there still exists a substantial basis in law for questioning the legal sufficiency of appellant’s plea. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.2008); United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991). That is because neither appellant’s providency nor the stipulation of fact in support of appellant’s plea establish as a matter of law how the letter itself imposes a legal liability on either the doctor or the hospital identified in the specification. Because neither the letter itself nor the extrinsic facts about the letter’s contents (as opposed to its potential legal impact) on their own impose liability or change a legal right, appellant’s plea to forgery is legally deficient. CONCLUSION Consequently, we set aside the findings of guilty to the offense of forgery in Charge II and its specification in appellant’s case. The remaining findings are affirmed. Because the military judge sua sponte found the offense of false official statement and forgery to constitute a single offense for sentencing under Rule for Court-Martial 1003(c)(1)(C), we are confident the sentencing landscape has not changed. United States v. Sales, 22 M.J. 305 (C.M.A. 1986); United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006). Therefore, we also affirm appellant’s sentence. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court