United States v. Private (E-2) JEFFERY D. JOHNSON ( 2015 )

                              MULLIGAN, HERRING, and BURTON
                                  Appellate Military Judges
                                UNITED STATES, Appellee
                           Private (E-2) JEFFERY D. JOHNSON
                               United States Army, Appellant
                                        ARMY 20140480
                              Headquarters, 7th Infantry Division
                      David L. Conn and Jeffery Lippert, Military Judges
                  Lieutenant Colonel Michael S. Devine, Staff Judge Advocate
    For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Amy E. Nieman,
    JA; Captain Payum Doroodian, JA (on brief).
    For Appellee: Colonel Mark. H. Sydenham, JA; Major A.G. Courie, III, JA; Major
    John K. Choike, JA; Captain Robyn M. Chatwood, JA (on brief).
                                       16 December 2015
                                    SUMMARY DISPOSITION
    Per Curiam:
           A military judge sitting as a general court-martial convicted appellant,
    pursuant to his pleas, of one specification of robbery, one specification of assault
    consummated by a battery, one specification of assault with an unloaded firearm,
    one specification of burglary, and one specification of obstruction of justice, in
    violation of Articles 122, 128, 129, and 134 Uniform Code of Military Justice
    [hereinafter UCMJ], 10 U.S.C. §§ 922, 928, 929, 934 (2012). The military judge
    sentenced appellant to a bad-conduct discharge, seven years confinement, total
    forfeiture of pay and allowances, and reduction to the grade of E-1. In accordance
    with the pretrial agreement, the convening authority approved only so much of the
    sentence as provided for a bad-conduct discharge, confinement for five years, total
    forfeiture of all pay and allowances, and reduction to the grade of E-1.
          Appellant’s case is before the court for review pursuant to Article 66, UCMJ.
    Appellant raises two assignments of error, one of which merits discussion and
    JOHNSON—ARMY 20140480
    relief. The matters personally raised by appellant pursuant to United States v.
    12 M.J. 431
     (C.M.A. 1982), are without merit.
                        Multiplicity and Lesser-Included Offenses:
                                   Robbery and Assault
           Appellant pleaded guilty to robbery of NW by means of force and violence
    and putting him in fear with a firearm (The Specification of Charge I). Appellant
    also pleaded guilty to assault consummated by a battery by striking NW on the face
    and head with his hand and foot (Specification 1 of Charge II), and assault with an
    unloaded firearm by pointing it at NW (Specification 2 of Charge II). Appellant
    now argues the military judge should have dismissed the assault specifications for
    multiplicity as they are lesser-included offenses of the robbery as charged.
           At trial, the military judge’s solution was to “merge for sentencing” the
    assault specifications with the robbery specification, because they are “part and
    parcel” with the robbery by force and violence and with a firearm. The military
    judge made his decision sua sponte at the close of the presentencing case on the
    basis of unreasonable multiplication of charges. He did not address multiplicity.
    “Offenses are multiplicious if one is a lesser-included offense of the other.” United
    States v. Elespuru, 
    74 M.J. 326
    , 328 (C.A.A.F. 2014), quoting United States v. Leak,
    61 M.J. 234
    , 248 (C.A.A.F. 2005). “As a matter of logic and law, if an offense is
    multiplicious for sentencing it must necessarily be multiplicious for findings as
    well.” United States v. Campbell, 
    71 M.J. 19
    , 23 (C.A.A.F. 2012).
           Appellant’s pretrial agreement contained a provision that waived specific
    motions, including “defenses or objections in the charges and specifications.” “A
    waiver is an intentional relinquishment or abandonment of a known right or
    privilege.” Elespuru, 74 M.J. at 328, quoting Johnson v. Zerbst, 
    304 U.S. 458
    , 464
    (1938). “There is a presumption against the waiver of constitutional rights.”
    Elespuru, 74 M.J. at 328, quoting Brookhart v. Janis, 
    384 U.S. 1
    , 4 (1966). An
    “unauthorized conviction has ‘potential adverse consequences that may not be
    ignored,’ and constitutes unauthorized punishment in and of itself.” United States v.
    50 M.J. 244
    , 245 (C.A.A.F. 1999), quoting Ball v. United States, 
    470 U.S. 856
    , 865 (1985).
           Without addressing whether appellant should have moved to dismiss for
    multiplicity after the military judge “merged for sentencing,” we analyze the issue of
    multiplicity for plain error. United States v. Barner, 
    56 M.J. 131
     (C.A.A.F. 2002).
    An appellant may demonstrate plain error by proving the offenses are “facially
    duplicative.” United States v. St. John, 
    72 M.J. 685
    , 687 n.1 (Army. Ct. Crim. App.
    JOHNSON—ARMY 20140480
           “Facially duplicative” means the factual components of the charged offenses
    are the same. Id. at 687 (citing Lloyd, 46 M.J. at 23). “Two offenses are not
    facially duplicative if each ‘requires proof of a fact which the other does not.’”
    United States v. Pauling, 
    60 M.J. 91
    , 94 (C.A.A.F. 2004) (quoting United States v.
    59 M.J. 357
    , 359 (C.A.A.F. 2004)). This analysis does not solely involve a
    “‘literal application of the elements test,’” but rather requires a “realistic
    comparison of the two offenses to determine whether one is rationally derivative of
    the other.” Pauling, 60 M.J. at 94, (quoting Hudson, 59 M.J. at 359). It “turns on
    both the factual conduct alleged in each specification and the providence inquiry
    conducted by the military judge at trial.” Pauling, 60 M.J. at 94 (quoting Hudson,
    59 M.J. at 359) (internal quotation marks omitted). Consequently, where after
    examination of these factors, an offense is a lesser-included offense of another, the
    offenses are facially duplicative. See St. John, 72 M.J. at 688-89; see also United
    States v. Palagar, 
    56 M.J. 294
    , 296 (C.A.A.F. 2002). “Whether an offense is a
    lesser-included offense is a matter of law” we review de novo. St. John, 72 M.J. at
           We find these offenses as charged in this case are facially duplicative because
    the conduct alleged in the assault specifications is the means by which appellant
    committed the robbery. The providence inquiry established that appellant struck
    NW in the face and head with his hands and foot on 28 January 2013, and appellant
    or his accomplice pointed the unloaded firearm at NW. Such unlawful
    persuasiveness caused NW to relinquish his property; and the military judge
    convicted appellant of robbery by means of force and violence and placing NW in
    fear with a firearm. Under the facts of this case, the assault consummated by a
    battery and the assault with an unloaded firearm were lesser-included offenses of the
    robbery as charged. “If the evidence shows that the force and violence is the means
    for perpetrating the robbery is also the means by which grievous bodily harm is
    inflicted, liability for the lesser-included offense will not lie.” United States v.
    55 M.J. 487
    , 491 (CA.A.F. 2001) citing United States v. Walker, 
    25 C.M.R. 144
    , 147 (C.M.A. 1958).
           The findings of guilty of Specifications 1 and 2 of Charge II and Charge II are
    set aside. Specification 1 and 2 of Charge II and Charge II are dismissed. The
    remaining findings of guilty are AFFIRMED.
           Reassessing the sentence on the basis of the errors noted, the entire record,
    and in accordance with the principles of United States v. Sales, 
    22 M.J. 305
    , 307-08
    (C.M.A. 1986) and United States v. Winckelmann, 
    73 M.J. 11
    , 15-16 (C.A.A.F.
    2013), we are confident the military judge would have adjudged the same sentence
    absent the errors noted as he limited appellant’s punitive expose by considering the
    three offenses as one for sentencing purposes. The approved sentence is
    JOHNSON—ARMY 20140480
    AFFIRMED. All rights, privileges, and property, of which appellant has been
    deprived by virtue of that portion of the findings set aside by this decision, are
    ordered restored.
                                           FOR  THECOURT:
                                                            SQUIRES JR.

Document Info

DocketNumber: ARMY 20140480

Filed Date: 12/16/2015

Precedential Status: Non-Precedential

Modified Date: 12/17/2015