United States v. Kepner ( 2015 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, K.M. MCDONALD, D.C. KING
Appellate Military Judges
UNITED STATES OF AMERICA
v.
JEREMY J. KEPNER
MISSILE TECHNICIAN SECOND CLASS (E-5), U.S. NAVY
NMCCA 201500019
SPECIAL COURT-MARTIAL
Sentence Adjudged: 7 November 2014.
Military Judge: CAPT Bethany Payton-O’Brien, JAGC, USN.
Convening Authority: Commanding Officer, Naval Submarine
Support Center Bangor, Silverdale, WA.
Staff Judge Advocate's Recommendation: LT N.T. Staring,
JAGC, USN.
For Appellant: CDR Gregory Dimler, JAGC, USN.
For Appellee: LCDR Catheryne E. Pully, JAGC, USN; LT Ann E.
Dingle, JAGC, USN.
30 April 2015
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as a special court-martial,
convicted the appellant, consistent with his pleas, of two
specifications of assault consummated by a battery in violation
of Article 128 Uniform Code of Military Justice, 10 U.S.C. §
928. The court sentenced the appellant to be reduced to pay
grade E-1, to forfeit $750.00 pay per month for 11 months,
confinement for 11 months, and a bad-conduct discharge. The
convening authority approved the sentence as adjudged but
suspended confinement in excess of 270 days, in accordance with
the pretrial agreement.
On appeal, the appellant alleges that his separate
convictions for assault consummated by a battery constitute an
unreasonable multiplication of charges. After carefully
considering the record of trial and the parties briefs, we
conclude that that the findings and sentence are correct in law
and fact and that no error materially prejudicial to the
substantial rights of the appellant was committed. Arts. 59(a)
and 66(c), UCMJ.
Background
The appellant hosted a party at which he and his fellow
Sailors became inebriated. Later that night, the victim, Petty
Officer CK, fell asleep on the appellant’s couch. The appellant
approached the sleeping CK, and removed his pants. After
removing his pants, the appellant touched CK’s penis with his
fingers and mouth. CK woke up, resisted, and immediately left
the appellant’s home. CK then filed a complaint with his
command, resulting in charges being referred to a special court
martial. Although the appellant claims to have no memory of the
events of the evening, he nonetheless entered into an agreement
with the convening authority to plead guilty in exchange for the
sentence limitation discussed above.
In the memorandum of his pretrial agreement, the appellant
agreed to waive motions regarding unreasonable multiplication of
charges. 1 In addition, while summarizing a RULE FOR COURTS-MARTIAL
802, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) conference, the
military judge stated:
[t]he court just expressed some concern about the two
specifications as to the timing. The court was
concerned about an unreasonable multiplication of
charges based on just the stipulation of fact I had.
1
The applicable provision states: “I reserve the right to raise motions
regarding my right to due process, the right to challenge the jurisdiction of
the court martial, the right to a speedy trial, the right to raise the issue
of unlawful command influence, or any other motion that cannot be waived
under R.C.M. 705. I agree to waive my right to raise any other motion not
explicitly reserved by this paragraph.” Appellate Exhibit I at ¶ 18(f).
2
The parties gave me sufficient factual information, and
the court is, at this time, not concerned about an
unreasonable multiplication of charges. 2
The trial defense counsel concurred with the court’s
summation. Moreover, during her closing argument, trial defense
counsel stated, “I don’t want to be misconstrued, Your Honor.
I’m not asking for some sort of unreasonable multiplication of
charges or--or having you merge these things for sentencing, but
the reality is these did not occur on two separate nights.” 3 The
court then stated, “In light of your argument . . . [t]he court
just wants to make clear for the record that the court does not
find an unreasonable multiplication of charges under the Quiroz
factors.” 4
Discussion
It is settled law that an accused can waive the issue of
unreasonable multiplication of charges. United States v.
Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009) (“Although the
President has prohibited the waiver of certain fundamental
rights in a PTA, neither multiplicity nor the unreasonable
multiplication of charges is among them.”). “Waiver is the
intentional relinquishment or abandonment of a known right.” Id.
at 313 (citations and internal quotation marks omitted). Based
upon the specific facts and circumstances of this case, we are
convinced that the appellant waived the issue of which he now
complains and “extinguished his right” to raise the issue on
appeal. Id. at 314.
Conclusion
The findings and the sentence as approved by the CA are
affirmed.
For the Court
R.H. TROIDL
Clerk of Court
2
Record at 7.
3
Id. at 70.
4
Id. at 71.
3