(concurring):
I concur in the rationale and conclusion of the majority that the appellants’ convictions of conspiracy to commit robbery have become final by virtue of the action of the Court of Military Appeals and that it is unnecessary for this Court to address the issue of the providency of the appellants’ pleas of guilty to this offense. United States v. Field, 5 U.S.C.M.A. 379, 18 C.M.R. 3 (1955), and United States v. Yelverton, 26 C.M.R. 586 (A.B.R.1958), pet. withdrawn, 9 U.S.C.M.A. 836, 26 C.M.R. 516 (1958). Also see generally United States v. Kepperling, 11 U.S.C.M.A. 280, 29 C.M.R. 96 (1960). In view of the discussion concerning providency in the dissenting opinion, however, I consider it appropriate to set forth my own views as to why the appellants’ pleas should not be held improvident even if we were to have found this a legitimate area of concern.
Upon remand, the appellants point out the substantial difference in the maximum sentence had they been prosecuted only for the offense for which there proved to be court-martial jurisdiction. At the time of trial, the appellants believed they were subject to possible life imprisonment in light of the alleged kidnapping offense, charged as a violation of the California Penal Code. The conspiracy charge which remains in these cases authorizes confinement at hard labor for only 10 years. There can be little argument that this is a substantial difference. I do not believe, however, it necessarily follows that the pleas of guilty were improvident.
As noted in the principal opinion, the appellants have based their arguments on United States v. Harden, 1 M.J. 258 (1976), and the cases cited therein, which stand for the general proposition that a plea of guilty may be improvident if predicated upon a substantial misunderstanding as to the maximum sentence to which an accused is subject. See generally United States v. Towns, 22 U.S.C.M.A. 600, 48 C.M.R. 224 (1974); United States v. Turner, 18 U.S.C.M.A. 55, 39 C.M.R. 55 (1968); United States v. Windham, 15 U.S.C.M.A. 523, 36 C.M.R. 21 (1965). In my opinion, however a significant difference exists between these cases and those of our two appellants. Harden and its predecessors all involved questions of multiplicity or other errors as to the maximum sentence which were not handled correctly by the military judge and which misled the accused at the trial level. None of the cases cited by appellants have involved reversal of a finding of guilty on jurisdictional or other grounds.
*1120In the instant cases, appellants were apparently correctly advised at trial as to the aggregate maximum punishment for the offenses to which they were then pleading guilty. As noted in the Hedlund opinion, the bulk of military precedent supported almost automatic court-martial jurisdiction where the victim was a service member, regardless of all other factual circumstances. See United States v. Hedlund, 2 M.J. 11, 13 (1976). This view proved to be incorrect, however, when the facts of appellants’ cases were subsequently reviewed by the Court of Military Appeals within the guidelines set forth in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971). There is certainly no evidence in these cases of any misrepresentation or other impermissible conduct on the part of the government in an attempt to secure appellants’ guilty pleas.
We would be obligated to rule the appellants’ pleas improvident were we to find a fair risk that they did not understand the consequences of their pleas at the time they entered the pleas. Article 45, Uniform Code of Military Justice. The records of trial indicate otherwise, however. At trial, counsel for each accused moved to dismiss the robbery and kidnapping offenses on jurisdictional grounds, but their motions were not successful at that level. With this in mind, the appellants entered their pleas of guilty. The military judge then conducted a thorough inquiry into these guilty pleas, United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969), and both appellants advised the military judge that they understood the effect of their pleas and that no one had applied any pressure on them to enter into their pretrial agreements and to plead guilty. [Hedlund, R. 43; Reed, R. 30]. They readily acknowledged their guilt to all offenses, including the alleged conspiracy.
Under these circumstances, I consider it inappropriate to establish a precedent that may indicate a providency issue is present in all guilty plea cases where some of the findings are later reversed on jurisdictional or other grounds (e. g., an inadequate Care inquiry). Such a procedure, resulting in retrials long after the fact when memories are hazy and government and defense witnesses may no longer be available, does not appear likely to meet the ends of justice.
I believe the situation we find confronting us in these cases is analogous to that which faced the United States Supreme Court in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), a case in which the appellant claimed he had entered a plea of guilty to kidnapping in 1959 in the belief he could have been subject to a possible death penalty if tried by a jury. In 1968 this death penalty provision was found to be unconstitutional, and Brady thereupon attacked the providency of his guilty plea. In holding that it was not required that Brady’s conviction be set aside, Mr. Justice White, writing for the Court, stated:
Often the decision to plead guilty is heavily influenced by the defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, cf. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the *1121plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant’s lawyer correctly advised him with respect to then existing law as to possible penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.
The fact that Brady did not anticipate United States v. Jackson [390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)], does not impugn the truth or reliability of his plea. We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions. [Id. 397 U.S. at 756-7, 90 S.Ct. at 1474].
See also McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); United States v. Dusenberry, 23 U.S.C.M.A. 287, 49 C.M.R. 536 (1975); United States v. Tinley, 2 M.J. 694 (A.F.C.M.R.1976).
The reasoning of Brady is considered equally applicable to the situation existing in the cases of our two appellants. A guilty plea, voluntarily and intelligently made and in which the accused has clearly acknowledged the actions forming the basis for his plea, should not be set aside merely because subsequent judicial decisions which cause reversal of some of the findings render the maximum penalty then assumed applicable to be so no longer. Action may be appropriate with respect to the sentence, but not with respect to the findings.
In summary, I am convinced that the appellants’ pleas of guilty to the conspiracy charge were voluntarily and intelligently made, and, if required, I would specifically find no improvidence in the pleas to this charge.