concurring:
My colleagues resolve the question whether a court-martial conviction can be a “felony,” within the meaning of D.C.Code 1973, § 22-3204, by considering “whether appellant’s conviction for assaulting a superior commissioned officer is sufficiently close to a District of Columbia felony to permit its use, as the trial court did, for enhancing his sentence.” I agree with this test — and with the conclusion that appellant’s court-martial conviction can be analogized properly to felonious assault under D.C.Code 1973, § 22-505. I disagree, however, with my colleagues’ statement that they need not “go so far as to adopt a rule requiring an equivalent or congruent District of Columbia felony before a court-martial conviction can be used to enhance punishment under § 22-3204.” Given our basis for decision, that statement is a nonse-quitur.
All of us agree that military offenses, as such, are not classified as felonies or misdemeanors; thus, if court-martial convictions are to be used at all under § 22-3204, we must look to a definitional test for a “felony” derived from civilian offenses. We also agree that the length of a previously served sentence, as such, cannot be used to define “felony,” not only because certain statutes cited by the government do not apply, see D.C.Code 1973, § 22-104a; 18 U.S.C. § 1 *9(1970), but also because the minimum periods of imprisonment vary from felony to felony; there is no discernible “felony” norm. Thus, there is only one principled basis left for using a court-martial conviction as a prior “felony”: its elements must be virtually congruent with the elements of a District of Columbia felony. This decision, accordingly, should be read to adopt such a rule — the rule followed in California and New York. See People v. Calderon, 205 Cal.App.2d 566, 23 Cal.Rptr. 62 (1962); People v. Benjamin, 7 A.D.2d 410, 184 N.Y.S.2d 1 (1959), aff’d, 8 N.Y.2d 812, 202 N.Y.S.2d 320, 168 N.E. 389, cert. denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960). I see no room for an argument (nor is there supportive precedent or legislative history) that a “felony” under § 22-3204 could be a purely military offense.*
D.C.Code 1973, § 22-3204, provides that the prior conviction for enhancement purposes can be one for a crime which is a felony “either in the District of Columbia or in another jurisdiction,” literally creating the possibility of enhancing a sentence on the basis of a foreign-state felony that constitutes a misdemeanor under the District of Columbia Code. Even if such a foreign felony-D.C. misdemeanor could be used for enhancement of penalties under § 22-3204 (a question we do not decide here), that possibility is irrelevant to considering whether particular military offenses are felonies, for military offenses do not use the felony label. Thus, if military offenses are to be used at all under § 22-3204, we must evaluate them, as a matter of necessity, by reference to the law of the District of Columbia forum. It is interesting to note that the Supreme Court of Kansas has taken an approach opposite to ours. See State v. Paxton, 201 Kan. 353, 201 Kan. 607, 440 P.2d 650, cert, denied, 393 U.S. 849, 89 S.Ct. 137, 21 L.Ed.2d 120 (1968). In construing a statute similar to § 22-3204 permitting enhancement based on a “felony” as defined by another jurisdiction, the court declined to permit the use of court-martial convictions at all, rather than limit their use to those defined by reference to forum-state felonies. The Kansas court, in effect, saw military offenses as being wholly outside the enhancement scheme of the statute. While I would not go that far, I find that statutory construction far more reasonable than one which not only would use military offenses for enhancement if virtually congruent with forum-state felonies but also would leave open the possibility of enhancement based on purely military offenses.