UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                               HAIGHT, PENLAND, and ALMANZA 1
                                   Appellate Military Judges

                               UNITED STATES, Appellee
                                             v.
                         Private First Class ZACHARY TORO III
                              United States Army, Appellant

                                         ARMY 20130441

                               Headquarters, Fort Carson
                           Timothy Grammel, Military Judge
                Colonel John S.T. Irgens, Staff Judge Advocate (pretrial)
      Lieutenant Colonel Stephanie D. Sanderson, Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Amy E. Nieman,
JA; Captain Payum Doroodian, JA (on brief).

For Appellee: Major A.G. Courie III, JA; Major John K. Choike, JA; Captain Jihan
Walker, JA (on brief).


                                         23 October 2015

                                    ----------------------------------
                                     MEMORANDUM OPINION
                                    ----------------------------------

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

ALMANZA, Judge:

       A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of two specifications of rape, four specifications of
aggravated sexual contact, two specifications of forcible sodomy, one specification
of aggravated assault, and three specifications of assault consummated by a battery,
in violation of Articles 120, 125, and 128, Uniform Code of Military Justice, 10
U.S.C. §§ 920, 925, and 928 (2006 & Supp. V) [hereinafter UCMJ]. The military
judge sentenced appellant to a dishonorable discharge, confinement for nine years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved only so much of the adjudged sentence as provided for


1
    Judge ALMANZA took final action in this case while on active duty.
TORO — ARMY 20130441

a dishonorable discharge, confinement for five years, forfeiture of all pay and
allowances, and reduction to the grade of E-1.

      This case is before us pursuant to Article 66, UCMJ. Appellant raises five
assignments of error, two of which merit discussion, and one of which merits relief.
Appellant also raises three matters pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), none of which merits discussion or relief.

                                     BACKGROUND

       In the early morning hours of 27 February 2012, appellant raped JF, a woman
he had met the previous evening at a bar in Colorado Springs, in his barracks room.
Appellant stated that he first had consensual sex with JF, but that once she had
dressed and was ready to leave, he grabbed her upper left arm with both hands and
pulled her towards him, causing her to fall on her back on his bed. 2 He then pinned
her down, pulled her shirt and bra down, and licked JF’s breasts while she was
trying to get away. 3

       Appellant then pulled down JF’s pants and digitally penetrated her genital
opening while he was holding her down with one arm wrapped around her leg. JF
was still trying to get away and was saying, “no” and “stop.” 4 During this time
(appellant did not recall the exact order of events), appellant also digitally
penetrated JF’s anus, 5 licked her vulva, 6 spat on her genitals, 7 and licked her anus. 8




2
  This assault consummated by a battery is the basis for Specification 2 of Charge
III.
3
    This aggravated sexual contact is the basis for Specification 6 of Charge I.
4
    This rape is the basis for Specification 2 of Charge I.
5
    This aggravated sexual contact is the basis for Specification 4 of Charge I.
6
    This aggravated sexual contact is the basis for Specification 3 of Charge I.
7
  This assault consummated by a battery is the basis for Specification 4 of Charge
III.
8
    This aggravated sexual contact is the basis for Specification 5 of Charge I.




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      Appellant then turned JF over, penetrated her vagina with his penis from
behind 9 and grabbed her hair from behind with his hand, pulling her head back. 10
Appellant then penetrated JF’s anus with his penis, while she continued to say “no”
and was trying to get away (he was holding her hips so she could not get away). 11

        Appellant then turned JF over again, penetrated her vagina with his penis
while she was on her back, 12 and then used one hand to choke JF on her neck for ten
to thirty seconds 13 while he continued to penetrate her vagina with his penis.
Appellant then told JF he wanted her on top, and rolled over, holding JF tightly
across her upper torso while she was saying “stop” and trying to get away. 14 Finally,
when JF was laying on her side facing away from appellant, he went to her side of
the bed, put his penis in front of her face, and his hand on the back of her head. JF
tried to move away from appellant’s penis, at which point he told her to put his penis
in her mouth. She did so, and when she started to pull away he put his hand on her
head and forced her to put more of his penis in her mouth. 15

       In his offer to plead guilty, appellant offered to “waive all waivable motions,
with the exception of a motion for continuance,” and further stated his belief that
there was a factual basis for a motion alleging unreasonable multiplication of
charges for sentencing purposes. At trial, the military judge covered in detail the
relief appellant could obtain if a motion for unreasonable multiplication of charges
for sentencing purposes were granted. The military judge also confirmed that
appellant wanted to give up this motion, among others, to get the benefit of his
pretrial agreement.




9
 This penetration, which appellant described in his providence inquiry, is not
separately charged.
10
  This assault consummated by a battery is the basis for Specification 3 of Charge
III.
11
     This forcible sodomy is the basis for Specification 1 of Charge II.
12
     This rape is the basis for Specification 1 of Charge I.
13
     This aggravated assault is the basis for Specification 1 of Charge III.
14
  As appellant described in the providence inquiry, he continued to penetrate JF’s
vagina with his penis while he rolled over, forcing JF on top of him. Accordingly,
this rape is the same as that described in the text accompanying footnote 11 above.
15
     This forcible sodomy is the basis for Specification 2 of Charge II.
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                               LAW AND ANALYSIS

                                   1.   Multiplicity

       “[A]ppellate consideration of multiplicity claims is effectively waived by
unconditional guilty pleas, except where the record shows that the challenged
offenses are ‘facially duplicative.’” United States v. Lloyd, 46 M.J. 19, 20
(C.A.A.F. 1997); see also United States v. Pauling, 60 M.J. 91, 94 (C.A.A.F. 2004);
United States v. St. John, 72 M.J. 685, 687 (Army Ct. Crim. App. 2013). Our court
and our superior court have interpreted this “waiver” to mean that, in the absence of
an affirmative waiver, an unconditional guilty plea “forfeits” consideration of
multiplicity issues on appeal absent plain error. St. John, 72 M.J. at 687 n.1; see
also Gladue, 67 M.J. at 314. An appellant may demonstrate plain error by showing
the offenses are “facially duplicative,” in other words, that the factual components
of the charged offenses are the same. St. John, 72 M.J. at 687 and 687 n.1 (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.’” Pauling, 60 M.J. at 94 (quoting United
States v. Hudson, 59 M.J. 357, 359 (C.A.A.F. 2004)). Even if the language of two
specifications is identical, those specifications are not multiplicious if they allege
separate crimes. United States v. Smith, ARMY 20110418, 2013 CCA LEXIS 586 at
*11 (Army Ct. Crim. App. 30 July 2013) (unpub.) (two rape specifications with
identical language not multiplicious because “[a]ppellant, on the same date, at the
same place, and using the same type of force, twice raped [the victim]”).

       In one of his assignments of error, appellant argues that Specification 1 of
Charge III (choking JF on her neck with his hand), Specification 2 of Charge III
(pulling JF on the bed), and Specification 3 of Charge III (pulling JF’s hair) are
multiplicious with the elements of force in Specification 1 of Charge I (penetrating
JF’s vulva with his penis) and Specification 6 of Charge I (licking JF’s breasts). We
disagree, because a review of the specifications and the facts in the record
demonstrates that the acts constituting the force elements of the crimes alleged in
Specifications 1 and 6 of Charge I are different than the assaults charged in
Specifications 1, 2, and 3 of Charge III.

       Specifically, the assault charged in Specification 1 of Charge III (choking JF
on the neck with his hand) was different than the force used in Specification 1 of
Charge I (penetrating JF’s vulva with his penis). Appellant testified that the force
used to commit the rape was holding JF tight across her upper torso while she was
on top of him: “[appellant] used force to compel her submission by using physical
violence and strength by bear hugging her around her upper torso.” While we
recognize that the record reflects that the rape charged in Specification 1 of Charge I
began while JF was on her back, and during the time appellant choked JF, appellant
continued to penetrate JF’s vulva with his penis when he flipped her over and used
the force described above – holding her tight across her upper torso – to force her to

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TORO — ARMY 20130441

compel her submission. As the record does not indicate that the choking charged in
Specification 1 of Charge III was the force used to commit the rape charged in
Specification 1 of Charge I, we decline to find the offenses are multiplicious.

        The record also shows that the choking charged in Specification 1 of Charge
III occurred after the aggravated sexual contact charged in Specification 6 of Charge
I (licking JF’s breasts). Accordingly, we find that these two offenses are not
multiplicious.

        Similarly, the assault charged in Specification 2 of Charge III (pulling JF onto
the bed) was not the force used to commit either the rape charged in Specification 1
of Charge I (penetrating JF’s vulva with his penis) or the aggravated sexual contact
charged in Specification 6 of Charge I (licking JF’s breasts). As appellant testified,
the force he used to commit the rape was “bear hugging her around her upper torso,”
and the force he used to commit the aggravated sexual contact was also different
than the act of pulling her to the bed: “[a]fter . . . [JF] landed on the bed . . .
[appellant] straddled her waist using . . . [his] body weight to pin her down. She
was unable to move or escape. . . . [Appellant] . . . used . . . [his] weight and . . .
[his] hands to pin her . . . to the bed.” We thus find that Specification 2 of Charge
III is not multiplicious with Specifications 1 or 6 of Charge I.

       The assault charged in Specification 3 of Charge III (pulling JF’s hair with his
hand) occurred when appellant was penetrating her vagina with his penis, a
penetration that was not separately charged. See footnotes 9-10 above and
accompanying text. As a result, this assault was not the force used to commit the
rape charged in Specification 1 of Charge I. Moreover, as the record shows this
assault occurred after the aggravated sexual contact charged in Specification 6 of
Charge I, this assault was not the force used to commit that aggravated sexual
contact. Therefore, we find that Specification 3 of Charge III is not multiplicious
with Specifications 1 or 6 of Charge I.

                            2. Dilatory Post-Trial Processing

        In another assignment of error, appellant seeks relief for dilatory post-trial
processing. In United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), our superior
court established timeliness standards for various stages of the post-trial and
appellate process. Id. at 136-43. The Moreno standard applicable in this case is that
a convening authority should take action within 120 days after the trial is completed.
Id. at 142. 16 Failure to satisfy any of these standards creates a “presumption of
unreasonable delay,” prompting this court to apply and balance the four factors set


16
  Moreno’s second and third timeliness standards, which apply to docketing a case
with this court after action is taken and appellate review before this court, are not
relevant in this case. Moreno, 63 M.J. at 142.
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out in Barker v. Wingo, 407 U.S. 514, 530 (1972), in order to determine whether
appellant’s due process rights were violated by the delays in processing. See
Moreno, 63 M.J. at 135-36, 142.

       Here, taking 301 days to process appellant’s case from trial completion to
action is presumptively unreasonable. In the face of this lengthy delay, we now
apply and balance the four factors set out in Barker. Id.

       As to the first factor, length of delay from trial to action, it took 113 days to
complete record transcription and authentication for a 176-page record and an
additional 16 days for the staff judge advocate (SJA) to sign the recommendation
(SJAR). Appellant received copies of the record of trial and the recommendation 11
days later. The longest single delay was the 141 days it took for appellant’s trial
defense counsel to submit his request for clemency. Twenty days after appellant’s
request for clemency was submitted, the SJA signed the addendum to the SJAR and
the convening authority took action. Recognizing that R.C.M. 1106(f)(5) provides
defense counsel 10 days to submit clemency matters, we find that the defense is
responsible for 131 days of post-trial delay. 17 Even subtracting the 131 days of
defense delay from the 301 days it took to process this matter from trial to action,
the delay would still be 170 days, far in excess of Moreno’s 120-day standard.

       As to the second factor, reasons for the delay, we examined the explanations
offered in the government’s brief and in a memorandum from the senior court
reporter (Government Appellate Exhibit 1) for these delays and found them
unpersuasive. Id. at 143; see United States v. Arriaga, 70 M.J. 51, 57 (C.A.A.F.
2011) (“[P]ersonnel and administrative issues . . . are not legitimate reasons
justifying otherwise unreasonable post-trial delay.”). This factor thus favors
appellant.




17
   The government argues that the defense is responsible for 142 days of delay,
including an additional eleven days of delay in reviewing the record of trial. The
authentication page of the record of trial indicates that trial defense counsel received
the record of trial on 9 August 2013 and completed his review on 14 August 2013.
This is five days, not eleven. Moreover, the errata sheets indicate that they were
sent to both trial counsel and to trial defense counsel on 9 August 2013. The errata
sheets also indicate that trial counsel completed his review on 12 August 2013 and
that trial defense counsel completed his review on 14 August 2013. On these facts,
we decline to find that the time it took trial defense counsel to review the record of
trial should be counted as defense delay.




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       The third factor does not favor appellant because he did not raise the issue of
dilatory post-trial processing until this appeal.

       Finally, considering the fourth factor, we find appellant has not established
prejudice as a result of this delay. Moreno, 63 M.J. at 138-41. Appellant has
alleged no prejudice and we find no prejudice after specifically reviewing each of
the three sub-factors 18 identified in Moreno. Id. Nor do we find the post-trial
processing was “so egregious that tolerating it would adversely affect the public’s
perception of the fairness and integrity of the military justice system.” United
States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).

       Nonetheless, pursuant to Article 66(c), UCMJ, we have the authority to grant
appropriate relief in cases where we have not found actual prejudice to appellant,
but “unreasonable and unexplained post-trial delays” are present. United States v.
Tardif, 57 M.J. 219, 220 (C.A.A.F. 2002); see United States v. Ney, 68 M.J. 613, 617
(Army Ct. Crim. App. 2010); United States v. Collazo, 53 M.J. 721, 727 (Army Ct.
Crim. App. 2000).

      In finding the 301-day delay associated with this case to be unreasonable, we
recognize the government has attempted to explain the delay in transcribing and
authenticating the record of trial. We also recognize that a significant portion of the
delay was caused by trial defense counsel’s untimely submission of appellant’s
clemency petition. Even considering these facts, however, we find the
approximately ten-month delay still warrants relief and will grant such relief in our
decretal paragraph.

                                   CONCLUSION
 
      The findings of guilty of guilty are AFFIRMED.

       After considering the entire record, to include the delays in post-trial
processing, we AFFIRM only so much of the sentence as provides for confinement
for four years and eleven months, a dishonorable discharge, forfeiture of all pay and
allowances, and reduction to the grade of E-1. All rights, privileges, and property,
of which appellant has been deprived by virtue of that portion of the findings and
sentence set aside by this decision are ordered restored. See UCMJ arts. 58b(c) and
75(a).




18
  (1) Oppressive incarceration pending appeal; (2) particularized anxiety and
concern; and (3) impairment of ability to present a defense at rehearing. Moreno, 63
M.J. at 138-41.
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    Senior Judge HAIGHT and Judge PENLAND concur.

                               FOR THE
                               FOR THE COURT:
                                       COURT:




                               MALCOLM
                               MALCOLM H.  H. SQUIRES,
                                              SQUIRES, JR.
                                                        JR.
                               Clerk of Court
                               Clerk of Court




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