United States v. Specialist CASEY A. PHILLIPS ( 2017 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist CASEY A. PHILLIPS
United States Army, Appellant
ARMY 20150373
Headquarters, Fort Carson
Douglas K. Watkins, Military Judge
Colonel Paul J. Perrone, Jr., Staff Judge Advocate (pretrial)
Colonel Gregg A. Engler, Staff Judge Advocate (post-trial)
For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Cody D. Cheek, JA (on brief); Major Christopher D. Coleman, JA; Captain
Cody D. Cheek, JA (on reply brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Melissa Dasgupta Smith, JA; Captain Christopher A. Clausen, JA (on
brief).
1 March 2017
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MEMORANDUM OPINION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
WOLFE, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of attempting to sell military property;
one specification of conspiracy to commit larceny of military property; four
specifications of making a false official statement; two specifications of willfully
destroying military property; seven specifications of larceny of military, private, and
Army and Air Force Exchange Service (AAFES) property; and one specification of
forging and uttering four checks; in violation of Articles 80, 81, 107, 108, 121, and
123 of the Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 880,
881, 907, 908, 921, 923 (2012). The military judge sentenced appellant to a bad-
conduct discharge and confinement for thirty months. Pursuant to a pretrial
PHILLIPS—ARMY 20150373
agreement, the convening authority approved only so much of the sentence that
provided for a bad-conduct discharge and fifteen months confinement.
This case is before the court for review pursuant to Article 66, UCMJ.
Appellant raises, for the first time on appeal, Specifications 1 and 2, 3 and 4, and 5
and 6 of Charge II should be consolidated since the “larceny of military and non-
military property [was] at substantially the same time and place,” and therefore
Specifications 2, 4, and 6 should be set aside and dismissed. Appellant alleges
without consolidation of the specifications there was an unreasonable multiplication
of charges since the larceny offenses were committed at substantially the same time
and place. The six specifications appellant challenges as an unreasonable
multiplication of charges involve multiple items of military and non-military owned
property stolen at Fort Carson on three different dates—between on or about 1
November 2012 on or about 6 January 2013, 23 April 2014, and 30 April 2014.
After review of the entire record, we find that appellant’s unconditional guilty plea
waived this issue, and, in any event, the charges were not unreasonably multiplied. 1
LAW AND DISCUSSION
Our superior court, in United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F.
2009), addressed the effect of “waiver” and “forfeiture” of an issue on appeal.
“Waiver” is the “intentional relinquishment or abandonment of a known right,”
which would preclude appellate review of an issue. Id. On the other hand,
“forfeiture” is “the failure to make the timely assertion of a right,” which requires a
review for plain error on appeal. Id. (quoting United States v. Olano, 507 U.S. 725,
733 (1993) (internal quotation marks omitted); see also, United States v. Sweeney,
70 M.J. 296 (C.A.A.F. 2011).
In the instant case, appellant entered into an unconditional guilty plea. “By
pleading guilty, an accused does more than admit that he did the various acts alleged
in a specification; ‘he is admitting guilt of a substantive crime.’” United States v.
Campbell, 68 M.J. 217, 219 (C.A.A.F. 2009) (citing Unites States v. Broce, 488 U.S.
563, 570 (1989)). “An unconditional guilty plea generally waives all pre-trial and
trial defects that are not jurisdictional nor a deprivation of due process of law.”
United States v. Jones, 69 M.J. 294, 299 (C.A.A.F. 2011) (citing United States v.
Schweitzer, 68 M.J. 133, 136 (C.A.A.F. 2009). As Schweitzer was decided shortly
after Gladue, the court’s use of “waiver” in Schweitzer was clearly intentional.
Unless offenses are “facially duplicative” a guilty plea waives any claim that the
offenses are unreasonably multiplied. Schweitzer, 68 M.J. at 136. (citing United
States v. Pauling, 60 M.J. 91, 94 (C.A.A.F. 2004).
1
We have considered those matters personally raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit.
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PHILLIPS—ARMY 20150373
Before entering his guilty plea, the military judge specifically asked appellant
if there were any motions to dismiss 2 or to grant other appropriate relief.
Appellant’s defense counsel did not ask the court for any relief or allege
unreasonable multiplication of charges. We find that appellant pleaded guilty
unconditionally and waived the issue of unreasonable multiplication of charges.
Notwithstanding appellant’s waiver, after assessing the entire record we are
required to determine whether under Article 66(c), UCMJ, we should leave
appellant’s waiver intact, or “notice” the error for the first time on appeal. United
States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016); see also United States v. Gilchrist,
61 M.J. 785, 789 (Army Ct. Crim. App. 2005). It is in the exercise of this
discretionary authority with regards to one pair of specifications that we disagree
with our dissenting colleague, and therefore explain our reasoning at some length.
Specification 1 and 2 of Charge II
Appellant pleaded guilty to stealing an assault pack valued at less than
$500.00 (Specification 1) and stealing four blank checks that had some value
(Specification 2). Appellant found the checks inside the assault pack several weeks
later. It is undisputed when appellant took the assault pack he also took the blank
checks—there is but one “taking.” However, because the offense of larceny involves
an element of specific intent, it does not always follow that when appellant stole the
assault pack he also stole the checks.
Here appellant established during his providence inquiry that he formed the
intent to permanently deprive the owner of the value of the assault pack when he
took the assault pack. He stipulated, however, that he did not have the intent to
permanently deprive the owner of the value of the checks until he found the checks
several days later. In the context of a guilty plea, appellant cannot be guilty of
stealing the checks until he formed the specific intent to deprive the owner
permanently of their use. Since the parties stipulated that this did not occur when
appellant stole the assault pack, there cannot be only one larceny. 3
2
Motions to dismiss under Rule for Courts-Martial [hereinafter R.C.M.] 907, include
nonwaivable grounds, waivable grounds, and permissible grounds for dismissal.
Permissible grounds for dismissal include if a specification is mulitiplicous with
another specification. After United States v. Campbell, 71 M.J. 19 (C.A.A.F 2012),
“unreasonable multiplication of charges” encompasses what has previously been
described as “multiplicity in sentencing.” Id. at 26.
3
Put differently, if appellant had told the military judge that he had no intent to steal
the checks until he found them, and upon finding the checks he decided to return
them to their owner, we would surely say that he was improvident to stealing the
checks.
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PHILLIPS—ARMY 20150373
We would agree with our dissenting colleague that “[w]hen a larceny of
several articles is committed at substantially the same time and place, it is a single
larceny even though the articles belong to different persons.” Manual for Courts-
Martial, United States (2012 ed.) [hereinafter MCM], pt. IV, ¶ 46(c)(1)(i)(ii).
However, the key to us in understanding that provision is that there must be a
larceny of several articles at the same time. In other words, the accused must intend
to permanently deprive the owner of all the articles taken. Without the requisite
intent, there is no larceny. If appellant did not have the requisite intent to steal the
checks when he stole the assault pack, then there was not a “larceny of several
items.”
We would also agree that it is a permissible inference that when an accused
takes one item with an intent to permanently deprive the owner of the item, it is a
permissible inference that he intends to steal any items contained within. Thus,
when one steals a purse, one can infer the thief intended to also steal the wallet
within. See United States v. Dicario, 8 U.S.C.M.A. 353, 361, 24 C.M.R. 163, 171
(1957) (“It is also the general rule that only a single theft is committed when the
thief takes one article which contains other articles within it, as in the case of a
purse containing a wallet, which in turn contains a sum of money.").
Here, however, appellant specifically stipulated that he did not have the intent
to steal the checks until he found them. Appellant stipulated that only upon finding
the checks did “he then form[] the intent” to permanently deprive the owner of the
value of the checks. He further stated in his providence inquiry that he was unaware
the assault pack contained blank checks when he stole the assault pack. It was only
“[a]fter finding these checks, I had no intention of returning them to the rightful
owner. . . . At that point, my sole intent was to deprive [the owner] of his checks.”
Therefore, we find Specifications 1 and 2 of Charge II, at least as stipulated
by the parties and as described during appellant’s providence inquiry, constituted
separate larcenies; we do not find the specifications to be unreasonably multiplied.
To the extent the record is unclear or undeveloped, it is the natural consequence of
appellant entering an unconditional guilty plea to both specifications, and weighs in
favor of leaving appellant’s waiver of the issue intact.
CONCLUSION
The findings and sentence are AFFIRMED.
Senior Judge MULLIGAN concurs.
FEBBO, Judge, concurring in part and dissenting in part.
I concur that an unconditional guilty plea generally waives the issue of
unreasonable multiplication of charges on appeal. Similarly, to allow the trial court
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PHILLIPS—ARMY 20150373
to resolve challenges based on an alleged unreasonable multiplication of charges and
develop a more clear record on appeal, appellant should have raised the issue before
the military judge. I concur there was no unreasonable multiplication for
Specification 3 and 4 and Specifications 5 and 6 of Charge II. For those
specifications, appellant had to cut locks to doors and wall lockers, cut locks to
shipping containers, enter separate motor pools, enter separate offices and different
areas in the motor pool building, and steal items contained within separate wall
lockers and a locked desk. Appellant’s actions for those specifications involved
distinctly separate acts and, therefore, these larcenies did not occur at substantially
the same time and place.
In contrast, I find Specifications 1 and 2 of Charge II constitute an
unreasonable multiplication of charges because of the long-standing policy 4 in the
MCM and precedence in case law on how to charge larcenies involving the contents
of a single item stolen. The two specifications to which appellant pleaded guilty
were not aimed as distinctly separate criminal acts.
I understand that several weeks 5 after stealing the assault pack, appellant
looked inside and found a check book containing four blank checks that belonged to
SPC MH. 6 Upon discovery of the checks, appellant formed the intent to steal the
checks. Although the intent to steal the checks occurred several weeks later, the
actions to steal the assault pack and blank checks inside occurred at substantially the
same time and place. The MCM provides guidance on appellant’s non-concurrent
4
This policy is firmly rooted in the MCM. The 1949 edition of the MCM discussion
of charging larceny under Article of War 93, stated:
“When a larceny of several articles is committed at substantially the
same time and place it is a single larceny even though the articles
belong to different persons. Thus, if a thief steals a suitcase
containing the property of several persons or goes into a room and
takes property belonging to various persons, there is but one
larceny, which should alleged in but one specification.”
MCM, 1949, ¶ 180g at 240.
5
Appellant stipulated between on or about 1 November 2012 and on or about 6
January 2013, he contacted another soldier for assistance in cashing the checks.
6
There was no rank on the blank checks and the larceny of the blank checks was
charged as the property of Mr. MH. Appellant later, with intent to defraud, signed
the four blank checks with Mr. MH’s name and through another soldier attempted to
cash them in the total amount of $4,620. The checks bounced. Appellant pleaded
guilty to this separate offense, Article 123, UCMJ.
5
PHILLIPS—ARMY 20150373
intent to steal the checks that he later found in the assault pack he stole. Para.
46c(1)(f)(i), Part IV, Manual for Courts-Martial, United States (2012 ed.)("Although
a person gets property by a taking or obtaining which . . . was without a concurrent
intent to steal, a larceny is nevertheless committed if an intent to steal is formed
after the taking or obtaining and the property is wrongfully withheld with that
intent."). See United States v. Helms, 47 M.J. 1 (C.A.A.F. 1997) (citing United
States v. Aldridge, 2 U.S.C.M.A. 330, 8 C.M.R. 130 (1953); United States v. Cox, 37
M.J. 543 (N-M. Ct. Crim. App. 1993)(when an article is taken without consent it is
immaterial if an appellant did not decide to retain the article until a later time); see
also State v. Langford, 467 So. 2d 41 (La. Ct. App. 1985); United States v.
Suthanaviroj, NMCM 200000763, 2002 CCA LEXIS 159 at *12 (N-M. Ct. Crim.
App. 22 July 2002). "It is clear that larceny is committed when an intent to
permanently deprive the owner of property of its use and benefit is formed at any
time after the event, even when the original taking . . . was done with the intent to
return it . . . ." United States v. Lee, 37 M.J. 1020, 1021 (A.F.C.M.R. 1993) (citing
United States v. Vardiman, 35 M.J. 132 (C.M.A. 1992)).
In Helms, our superior court concluded that “this latter larceny relies on the
‘fictional notion of continuing trespass’ to find the concurrent existence of the
taking element and the requisite intent.” Helms, 47 M.J. at 3 (citing LaFave &
Scott, Substantive Criminal Law, § 8.5(f) at 366 (1986). Although Helms was
considering the application of MCM, pt IV. ¶ 46c(1)(f)(i) to fraud involving Basic
Allowance for Housing (BAH), the same rational applies to appellant’s later intent
to steal checks that he did not know were inside the assault pack he stole. In fact,
the rationale of finding a single larceny is even stronger when a soldier steals an
item that would normally be used to store items inside, such as a wallets, purses,
duffel bags, and assault packs. See Dicario, 8 U.S.C.M.A. at 361.
This guidance is consistent with how the government charged the larceny of
the assault pack and checks. In reviewing Specification 1 and 2, the date range of
when appellant formed the intent to steal the assault pack and the checks is exactly
the same. The government charged appellant and he pleaded guilty to stealing the
assault pack and four checks between “1 November 2012 and on or about 6 January
2013.”
Specifications constitute an unreasonable multiplication of charges when what
is substantially one transaction is unnecessarily broken down into component parts
and charged separately. See R.C.M. 307(c)(4) discussion; United States v. Quiroz, 55
M.J. 334, 336-38 (C.A.A.F. 2001). Likewise, the explanatory text of Article 121,
UCMJ, in the Manual for Courts-Martial provides guidance on what the government
should consider when charging a “multiple article larceny”:
When a larceny of several articles is committed at
substantially the same time and place, it is a single larceny
even though the articles belong to different persons. Thus,
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PHILLIPS—ARMY 20150373
if a thief steals a suitcase containing the property of
several persons or goes into a room and takes property
belonging to various persons, there is but one larceny,
which should alleged in but one specification.
MCM, pt. IV, ¶ 46(c)(1)(i)(ii). 7
“When determining the separateness of two or more larceny specifications,
therefore, the pivotal consideration is not what was stolen, nor from whom it was
stolen, but whether the thefts occurred ‘at substantially the same time and place;’ or,
in essence, whether they ‘arose from the same act or transaction.’" United States v.
Jobes, 20 M.J. 506, 508, (A.F. Ct. Crim. App. 1985) (citing United States v. Hall, 6
U.S.C.M.A. 562, 20 C.M.R. 278 (C.M.A. 1955)).
The larcenies did not require distinct and separate acts to complete
the larceny of the assault pack and checks. These two specifications
should be merged as a single larceny. This court in addressing similar
facts and circumstances has held that charging them separately was an
unreasonable multiplication of charges. See United States v. Flinner,
ARMY 20140704, 2015 CCA LEXIS 126, *3 (Army Ct. Crim, App. 23 March
2015) (summ. disp.). See also, United States v. Sharp, ARMY 20130998,
2014 CCA LEXIS 856,(Army Ct. Crim, App. 25 November 2014) (“The
moment appellant stole the trailer, he came into unlawful possession of the
tools inside of the trailer.”); United States v. Box, ARMY 20071166, 2009
CCA LEXIS 198, (Army Ct. Crim, App. 27 February 2009) (affirming
consolidation of separate larceny specifications involving “the same victim, at
the same time, from the same gym locker.”)(United States v. Vandenberg,
ARMY 20020991, 2005 CCA LEXIS 562, *3 (Army Ct. Crim, App. 16
August 2005) (affirming consolidation of separate larceny specifications
involving the theft of checkbooks belonging to two different soldiers in the
same barracks room); United States v. Coffman, 45 M.J. 669, 671 (Army Ct.
7
The explanatory text of MCM, pt. IV, ¶ 46c(1)(i)(ii) applies “even when personal
property belonging to an individual and military property belonging to the United
States government (although issued to the individual) are stolen at the same time and
place.” United States v. Flinner, ARMY 20140704, 2015 CCA LEXIS 126, at *3-4
(Army Ct. Crim, App. 23 March 2015) (sum. disp.). “The fact that the President has
prescribed enhanced penalties when military property is the subject of a larceny does
not transform a single larceny of military and non-military property at the same time
and place into two separate larcenies. See MCM, pt. IV, ¶ 46.c(1)(i)(ii), 46.e(1)(a)-
(b).” Id.; see also, United States v. McLaurin, 2001 CCA LEXIS 484 (Army Ct.
Crim, App. 18 April 2001) (“The President, exercising his statutory authority under
Article 56, UCMJ, to prescribe maximum punishments for offenses, chose to provide
a greater penalty for larcenies of military property than for private property, but his
actions did not create two separate statutory violations.”). Flinner at *4.
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PHILLIPS—ARMY 20150373
Crim. App. 1997) (affirming consolidation of separate larceny specifications
involving theft of a wallet and theft of a military identification card contained
within). The facts and circumstances of this larceny fit squarely within the
MCM, pt. IV, ¶46(c)(1)(i) (ii) example of charging a larceny of several
articles as a single larceny.
Therefore, I find Specifications 1 and 2 of Charge II constitute an
unreasonable multiplication of charges because the larcenies arose from the
same act and occurred at substantially the same time and place. For these
reasons, I respectfully dissent.
FOR THE COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of
Clerk of Court
Court
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