UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                          TOZZI, CAMPANELLA, and CELTNIEKS
                                 Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                             Captain WALTER J. MATHIS
                             United States Army, Appellant

                                      ARMY 20140473

                            Headquarters, Fort Stewart
                  John T. Rothwell, Military Judge (arraignment)
                   Charles A. Kuhfahl, Jr., Military Judge (trial)
             Colonel Francisco A. Vila, Staff Judge Advocate (pretrial)
       Lieutenant Colonel Peter R. Hayden, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Joshua G. Grubaugh, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA;
Captain Nathan S. Mammen, JA (on brief).

                                        13 April 2016
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

TOZZI, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of conspiracy to wrongfully possess a
controlled substance, three specifications of wrongfully possessing a controlled
substance, two specifications of larceny, two specifications of conduct unbecoming
an officer, and two specifications of solicitation to distribute a controlled substance,
in violation of Articles 81, 112a, 121, 133, and 134 Uniform Code of Military
Justice, 10 U.S.C. §§ 881, 912a, 921, 933, and 934 (2012) [hereinafter UCMJ].
The military judge sentenced appellant to a dismissal. The convening authority
approved the sentence as adjudged.

      We now review appellant’s case under Article 66, UCMJ. Appellant raises
two assignments of error, both meriting discussion and relief. We find the matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
MATHIS—ARMY 20140473

(C.M.A. 1982), do not warrant relief. In one assignment of error, appellant alleges
that the finding of guilty for conduct unbecoming an officer (Specification 1 of
Charge IV) is multiplicious with the finding of guilty for solicitation to distribute
oxycodone (Specification 1 of Charge V). Additionally, appellant alleges the
findings of guilty for wrongful possession of morphine (Specification 13 of Charge
II), larceny of morphine (Specification 1 of Charge III), and conduct unbecoming an
officer (Specification 2 of Charge IV) are multiplicious. In a second assignment of
error, appellant argues in the alternative, that the charges and specifications should
be dismissed on the basis of unreasonable multiplication of charges. We find
Specification 1 of Charge IV and Specification 1 of Charge V are multiplicious. We
also find Specification 13 of Charge II and Specification 1 of Charge III constitute
an unreasonable multiplication of charges. We provide relief in our decretal
paragraph.

                                 BACKGROUND

      Appellant, a physician’s assistant, was found guilty, inter alia, of the
following violations of the UCMJ:

             CHARGE II: Article 112a, UCMJ

             SPECIFICATION 13: In that [appellant], U.S. Army, did,
             at or near Kandahar Airfield, Afghanistan, between on or
             about 6 December 2012 and on or about 24 June 2013,
             wrongfully possess some amount of Morphine, a Schedule
             II controlled substance.

             CHARGE III: Article 121, UCMJ

             SPECIFICATION 1: In that [appellant], U.S. Army, did,
             at or near Kandahar Airfield, Afghanistan, between on or
             about 6 December 2012 and on or about 24 June 2013,
             steal some amount of Morphine, military property, of a
             value of less than $500.00, the property of the U.S. Army.

             CHARGE IV: Article 133, UCMJ

             SPECIFICATION 1: In that [appellant], U.S. Army, did,
             at or near Kandahar Airfield, Afghanistan, on divers
             occasions between on or about 15 May 2013 and on or
             about 17 June 2013, wrongfully ask subordinates to
             wrongfully distribute Oxycodone, a Schedule II controlled
             substance, such conduct being unbecoming of an officer
             and a gentleman.

                                           2
MATHIS—ARMY 20140473

            SPECIFICATION 2: In that [appellant], U.S. Army, did,
            at or near Kandahar Airfield, Afghanistan, between on or
            about 6 December 2012 and on or about 24 June 2013,
            wrongfully steal Morphine intended for convoy missions
            and replace it with an unknown substance, such conduct
            being unbecoming an officer and a gentleman.

            CHARGE V: Article 134, UCMJ

            SPECIFICATION 1 : In that [appellant], U.S. Army, did,
            at or near Kandahar Airfield, Afghanistan, on divers
            occasions, between on or about 15 May 2013 and on or
            about 17 June 2013, wrongfully solicit Specialist B.S.,
            Specialist E.R., Specialist S.C., Specialist N.H., Specialist
            B.A., and Specialist H.F., to wrongfully distribute some
            amount of Oxycodone, a Schedule II controlled substance,
            by requesting that Specialist S., Specialist R., Specialist
            C., Specialist H., Specialist A., and Specialist F. give him
            some of their prescribed Oxycodone, and that said conduct
            was to the prejudice of good order and discipline in the
            armed forces.

                                Multiplicity

      Regarding multiplicity, the conduct alleged in Specification 1 of Charge IV
(conduct unbecoming an officer) is the same conduct alleged in Specification 1 of
Charge V (solicitation to distribute oxycodone). When a specific offense alleges
criminal conduct that is also charged as conduct unbecoming an officer under Article
133, UCMJ, the specific offense is multiplicious with the Article 133 offense.
United States v. Palagar, 56 M.J 294 (C.A.A.F. 2002); United States v. Frelix-Vann,
55 M.J. 329 (C.A.A.F. 2001); United States v. Cherukuri, 53 M.J. 68 (C.A.A.F.
2000). In the past, our superior court has allowed the government to elect which
conviction to retain. Palagar, 56 M.J. at 296-97; Frelix-Vann, 55 M.J. at 333,
Cherukuri, 53 M.J. at 74. The government has requested this court to set aside and
dismiss appellant’s conviction of solicitation to wrongfully distribute oxycodone
(Specification 1 of Charge V). We will do so in our decretal paragraph.

                   Unreasonable Multiplication of Charges

       Appellant pleaded guilty to one specification of stealing morphine from
carpujects located in his unit’s medical safe, one specification of possessing the
same morphine stolen from the carpujects, and one specification of engaging in
conduct unbecoming an officer by wrongfully stealing that same morphine intended
for convoy missions and replacing it with an unknown substance.

                                          3
MATHIS—ARMY 20140473

      “What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” Rule for Courts-Martial
307(c)(4). We consider five factors to determine whether charges have been
unreasonably multiplied:

             (1) Did the accused object at trial that there was an unreasonable
                 multiplication of charges and/or specifications?;

             (2) Is each charge and specification aimed at distinctly separate
                 criminal acts?;

             (3) Does the number of charges and specifications misrepresent or
                 exaggerate the appellant's criminality?;

             (4) Does the number of charges and specifications [unreasonably]
                 increase [the] appellant's punitive exposure?;

             (5) Is there any evidence of prosecutorial overreaching or
                 abuse in the drafting of the charges?

United States v. Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001) (internal citation and
quotation marks omitted) (internal alteration reflects the holding in Quiroz that
“unreasonably” was the appropriate legal standard).

       Here, the Quiroz factors on balance weigh in favor of appellant. First,
defense counsel did object prior to trial to the unreasonable multiplication of
charges, but then asked the military judge to delay ruling on the motion, and then
never brought the motion up again. This factor weighs neither in favor of appellant
nor the government. Regarding the second Quiroz factor, it appears the possession
of morphine and larceny of morphine stemmed from the same act. This factor
weighs in favor of appellant. Regarding the third factor, findings of guilty against
appellant for these two specifications does exaggerate appellant’s criminality. This
factor weighs in favor of appellant. Regarding the fourth factor, appellant’s punitive
exposure is unreasonably increased for this conduct. The maximum punishment for
both of the specifications combined is a dismissal, six years confinement, and total
forfeitures. Possession of morphine carries a maximum of five years confinement;
larceny of morphine, military property, under $500.00 in value, carries a maximum
of one year confinement. The multiplication of these charges could result in an
unreasonable increase in appellant’s criminal exposure. This factor weighs in favor
of appellant. Finally, there is no evidence of prosecution overreaching or abuse in
the drafting of the charges, so the fifth factor weighs in favor of the government.
On balance, we find the Quiroz factors weigh in favor of appellant.

      Accordingly, Specification 13 of Charge II (possession of morphine) is
dismissed.

                                          4
MATHIS—ARMY 20140473

       We do not find the conduct unbecoming charge to be multiplicious or
unreasonably multiplied with the larceny charge because appellant’s conduct in
stealing morphine from carpujects and replacing it with an unknown substance was a
separate, subsequent act. The conduct unbecoming charge was aimed primarily at
appellant’s conduct that potentially put members of his unit at risk during
subsequent operations where morphine may have been medically required.

                                Sentence Reassessment

       This court has “broad discretion” when reassessing sentences. United States
v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). Our superior court has repeatedly
held that if we “can determine to [our] satisfaction that, absent any error, the
sentence adjudged would have been of at least a certain severity, then a sentence of
that severity or less will be free of the prejudicial effects of error.” United States v.
Sales, 22 M.J. 305, 308 (C.A.A.F. 1986). This analysis is based on a totality of the
circumstances with the following as illustrative factors:

             (1) Dramatic changes in the penalty landscape and exposure.

             (2) Whether an appellant chose sentencing by members or a
             military judge alone. As a matter of logic, judges of the
             courts of criminal appeals are more likely to be certain of
             what a military judge would have done as opposed to
             members. This factor could become more relevant where
             charges address service custom, service discrediting conduct
             or conduct unbecoming.

             (3) Whether the nature of the remaining offenses capture the
             gravamen of criminal conduct included within the original
             offenses and, in related manner, whether significant or
             aggravating circumstances addressed at the court-martial
             remain admissible and relevant to the remaining offenses.

             (4) Whether the remaining offenses are of the type that
             judges of the courts of criminal appeals should have the
             experience and familiarity with to reliably determine what
             sentence would have been imposed at trial.

United States v. Winckelmann, 73 M.J. at 15-16 (internal citations omitted).

       Applying these factors to this case, we are confident that reassessment is
appropriate. First we look to the penalty landscape. The maximum punishment in
this case drops from a dismissal, total forfeiture of pay and allowances, and thirty-
eight years confinement, to a dismissal, total forfeiture of pay and allowances, and

                                            5
MATHIS—ARMY 20140473

twenty-eight years confinement. Second, appellant was sentenced by a military
judge. We are confident we can discern what punishment a military judge would
adjudge in this case. Third, appellant remains convicted of one specification of
conspiracy to wrongfully possess a controlled substance, two specifications of
wrongfully possessing a controlled substance, two specifications of larceny, two
specifications of conduct unbecoming an officer, and one specification of
solicitation to distribute a controlled substance. Thus, neither the penalty landscape
nor the admissible aggravation evidence has significantly changed. Lastly, we have
familiarity and experience with the remaining offenses to reliably determine what
sentence would have been imposed at trial.

                                   CONCLUSION

      After consideration of the entire record of trial, the findings of guilty of
Specification 13 of Charge II and Specification 1 of Charge V are set aside and
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 Winckelmann, 73 M.J. at 15-16, we
AFFIRM the sentence. All rights, privileges, and property, of which appellant has
been deprived by virtue of that portion of his findings set aside by this decision, are
ordered restored.

      Judge CAMPANELLA and Judge CELTNIEKS concur.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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




                                           6
