United States v. Specialist ROBERT T. MARTINEZ ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
YOB, LIND, and KRAUSS
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist ROBERT T. MARTINEZ
United States Army, Appellant
ARMY 20120042
Headquarters, Fort Bliss
David H. Robertson, Military Judge (arraignment)
Karen W. Riddle, Military Judge (trial)
Colonel Francis P. King, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Peter Kageleiry,
Jr., JA; Major Jacob D. Bashore, JA (on brief) .
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain Samuel Gabremariam, JA (on brief).
25 November 2013
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SUMMARY DISPOSITION
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KRAUSS, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of wrongful possession of marijuana with
intent to distribute and one specification of wrongful introduction of marijuana with
intent to distribute in violation of Article 112a, Uniform Code of Military Justice,
10 U.S.C. § 912a (2006) [hereinafter UCMJ]. The convening authority approved the
adjudged sentence of a bad-conduct discharge and confinement for nine months.
This case is before the court for review under Article 66, UCMJ. Appellant
assigns three errors, all relating to his erroneous conviction of the lesser offense of
wrongful possession as well as the greater offense of wrongful introduction. He also
raises matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
We agree that appellant’s conviction for wrongful possession should be set aside and
dismissed but find no merit to those matters asserted pursuant to Grostefon.
MARTINEZ — ARMY 20120042
We find the wrongful possession offense is necessarily included in the
wrongful introduction offense as a matter of fact and law as charged in this case.
See United States v. Thomas, 65 M.J. 132, 135 (C.A.A.F. 2007); United States v.
Antonitis, 29 M.J. 217, 219 (C.M.A. 1989). As a result of the multiplicious findings
of guilt, Specification 1 of The Charge should be dismissed. See, e.g. Thomas,
65 M.J. at 135; Antonitis, 29 M.J. at 219; United States v. Britton, 47 M.J. 195, 197
(C.A.A.F. 1997), overruled on other grounds by United States v. Mil ler, 67 M.J. 385(C.A.A.F. 2009). The government does not dispute whether the possession offense
is multiplicious with the introduction offense, but, rather, argues that the appellant
waived the issue by agreeing as part of a pretrial agreement to “waive all waivable
motions,” relying on United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009).
However, as appellant correctly points out, this court is not bound to enforce such
waiver when exercising its authority and responsibility under Article 66 (c), UCMJ.
See United States v. Powell, 49 M.J. 460, 464 (C.A.A.F. 1998); United States v.
Claxton, 32 M.J. 159, 162 (C.M.A. 1991). In addition, we find this case sufficiently
distinguishable from Gladue to permit resolution of the matter in appellant’s favor
despite the waiver term at hand. The discussion between military judge and
appellant here remained sufficiently ambiguous as to the extent of the waiver to
negate what might otherwise be a knowing, intelligent, and voluntary waiver of the
multiplicity issue.
Therefore, after considering the entire record, the parties’ briefs, and those
matters personally raised by appellant pursuant to Grostefon, we set aside the
finding of guilty of Specification 1 of The Charge and dismiss the same. The
remaining finding of guilty is affirmed. Reassessing the sentence on the basis of the
error noted, the entire record, and in accordance with the principles of United States
v. Sales, 22 M.J. 305 (C.M.A. 1986), the court affirms the sentence.
Senior Judge YOB and Judge LIND concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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