United States v. Gunter

GIERKE, Judge

(concurring in part and in the result):

15. I agree with the majority’s conclusion that appellant disavowed any claim of right or honest belief that he was entitled to the stolen property. Accordingly, I join the majority’s holding that the military judge properly accepted appellant’s pleas of guilty.

16. I decline to join in what appears to be an advisory opinion regarding honest mistake of fact and claim of right as applied to larceny cases. We should not entertain appellant’s post-trial arguments about a possible defense that he expressly declined to assert at trial. We need not decide the validity of a defense which was not asserted. The mere theoretical possibility that a defense existed does not render the plea improvident. See United States v. Clark, 28 MJ 401, 407 (CMA 1989) (mere possibility of a defense does not render guilty plea improvident).