UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
KRIMBILL, BROOKHART, and BURTON
Appellate Military Judges

UNITED STATES, Appellee
v.
Private E2 BRANDON A. GLASSCOCK
United States Army, Appellant

ARMY 20190227

Headquarters, 7th Infantry Division
James P. Arguelles and Lanny Acosta, Jr., Military Judges
Lieutenant Colonel Elizabeth A. Walker, Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Jack D. Einhorn, JA;
Captain Benjamin A. Accinelli, JA; Captain Steven J. Dray, JA (on brief).

For Appellant: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Hannah E. Kaufman, JA; Captain Anthony A. Contrada, JA (on

brief).

27 May 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BROOKHART, Senior Judge:

Before this court, appellant argues that he is entitled to relief because the
“waive all waivable motions” clause in his pretrial agreement did not waive the
multiplicious nature of two of his convictions.! Specifically, appellant asserts that

 

' A military judge sitting as a general court-martial convicted appellant, pursuant to
his pleas, of one specification of making a false official statement, two
specifications of rape of a child, and five specifications of sexual abuse of a child, in
violation of Articles 107 and 120b, Uniform Code of Military Justice, 10 U.S.C. §§
907 and 920b [UCMJ]. The convening authority approved the adjudged sentence of

(continued .. .)
GLASSCOCK—ARMY 20190227

because multiplicity is a “constitutional claim” rooted in the Fifth Amendment, the
“waive all waivable motions” clause of his pretrial agreement did not extinguish his
ability to raise a multiplicity issue on appeal. We disagree. Applying our Superior
Court’s binding precedent, appellant’s multiplicity claim was unquestionably waived
by the “waive all waivable motions” clause i in his pretiia’ agreement. Additionally,

resardless of waiver annellant’s canvi
SVQ 4¥svsvew wa yvruery wy Wks eppwites Wa

BACKGROUND

Appellant pleaded guilty to seven specifications of raping and sexually
abusing his six-year-old stepdaughter, HM. All seven specifications arose from one
chain of events that occurred on the evening of 22 June 2018. Appellant described
the seven specifications as “the same incident.” Two of the specifications are
relevant to this appeal. First, appellant pleaded guilty to one specification of raping
HM by penetrating her vulva with his tongue. Second, appellant pleaded guilty to
one specification of sexually abusing HM by touching her vulva with his mouth.

During the portion of the providence inquiry related to those two
specifications, appellant told the military judge that he “kissed and licked” HM’s
vulva, later clarifying that he “kissed it first and then penetrated it [with his
tongue].” The penetration with the tongue formed the basis for Specification 1 of
Charge I, rape of a child, and the kissing formed the basis for Specification 2 of
Charge I, sexual abuse of a child.

As part of his pretrial agreement with the convening authority, appellant
agreed to “waive all waivable motions.” While discussing the pretrial agreement,
the parties agreed that the “waive all waivable motions” clause did not include an
unreasonable multiplication of charges (UMC) motion for purposes of sentencing.
However, neither the pretrial agreement nor the parties on the record discussed
multiplicity or UMC for findings.

LAW AND DISCUSSION

Unpreserved multiplicity claims are reviewed for plain error “in the absence
of an express waiver or consent.” United States v. Lloyd, 46 M.J. 19, 22 (C.A.A.F.
1997) (citations omitted); see also United States v. Coleman, 79 M.J. 100, 102
(C.A.A.F. 2019). However, a “waive all waivable motions” clause in a pretrial
agreement expressly waives an unpreserved multiplicity objection. See United

 

(.. . continued)
a dishonorable discharge, confinement for eighteen years, and reduction to the grade

of E-1.
GLASSCOCK—ARMY 20190227

States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009). “When... an appellant
intentionally waives a known right at trial, it is extinguished and may not be raised
on appeal.” Jd. at 313.

Applying our Superior Court’s controlling precedent, it is clear appellant
waived any claim-of multiplicity via the “waive all waivable motions” clause in-his
pretrial agreement—a provision trial defense counsel acknowledged originated with
the defense team. Even setting aside waiver, appellant’s claim that Specifications 1
and 2 of Charge I are facially duplicative is unavailing.

“To determine whether two charges are multiplicious, we engage in a three-
step inquiry. First, we determine whether the charges are based on separate acts. If
so, the charges are not multiplicious because separate acts may be charged and
punished separately.” Coleman, 79 M.J. at 103 (citations omitted). Put another
way, if an appellant fails step one of the three-step inquiry, his multiplicity claim
fails and there is no need to reach steps two and three. That is precisely the case
here.

Appellant made clear during his providence inquiry with the military judge
that he “kissed and licked” HM’s vulva. (emphasis added). In fact, appellant later
clarified that he “kissed it first and then penetrated it [with his tongue].”? (emphasis
added). These statements demonstrate the separate and distinct nature of the two
acts. As the two acts were separate and distinct, Charges 1 and 2 of Charge | “are
not multiplicious because separate acts may be charged and punished separately.”
Coleman, 79 M.J. at 103.

CONCLUSION

Upon consideration of the entire record, the finding of guilty and the sentence
are AFFIRMED.

Chief Judge KRIMBILL concurs.

 

* Appellant acknowledged that the sequence of the kiss and lick could have been
reversed. Regardless of which act occurred first, appellant’s explanation to the

military judge demonstrates that the kiss and lick were two distinct and separate
acts.
GLASSCOCK—ARMY 20190227
Senior Judge BURTON, dissenting:

While I agree with the majority in their analysis of waiver and multiplicity, I
would exercise our Article 66(d), UCMJ, authority and dismiss Specification 2 of
Charge I as an unreasonable multiplication of charges.

“What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” Rule for Courts-Martial
[R.C.M.] 307(c)(4). While multiple charges addressing substantially one transaction
may avoid constitutional double jeopardy concerns, “the prohibition against
unreasonable multiplication of charges has long provided . . . a traditional legal
standard—reasonableness—to address the consequences of an abuse of prosecutorial
discretion.” United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001).
“Reasonableness, like sentence appropriateness, is a concept that the Courts of
Criminal Appeals are fully capable of applying under the broad authority granted by
Congress under Article 66.” Jd. at 339 (citations omitted). This is true “with
respect to both the findings and the sentence.” United States v. Forrester, 76 M.J.
389, 394 (C.A.A.F. 2017) (citation omitted).

“[O]bjections based on defects in the charges and specifications” must be
raised before the entry of a plea. R.C.M. 905(b)(2). “A UMC objection is such an
objection because the accused is asserting that the charges and specifications violate
R.C.M. 307(c).” United States v. Hardy, 77 M.J. 438, 441 (C.A.A.F. 2018).
“Failure by a party to raise [a UMC objection] . . . before pleas are entered...
forfeits [the UMC objection] absent an affirmative waiver.” R.C.M. 905(e)(1). A
waive all waivable motions clause in a pretrial agreement constitutes express waiver
of a UMC objection. See United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F.
2009).

Here, while appellant’s pretrial agreement expressly preserved his right to
move for the merger of charges and their specifications “for purposes of
sentencing,” it contains no mention of a UMC motion on findings. As such, the
“waive all waivable motions” clause of appellant’s pretrial agreement expressly
waived his ability to object to UMC for purposes of findings.* See Gladue, 67 M.J.
at 314.

 

7 It is also feasible that appellant ultimately waived his ability to object to UMC for
sentencing purposes after the military judge discussed such a motion with trial
defense counsel on the record, but trial defense counsel never made a UMC motion.
See generally United States v. Rich, _M.J. __, 2020 CAAF LEXIS 240, at *10-12
(C.A.A.F. 28 Apr. 2020) (finding waiver where the military judge and trial defense

(continued .. .)
GLASSCOCK—ARMY 20190227

Regardless of any waiver of a UMC objection, this court may still, in its
discretion, consider the issue and provide appropriate relief pursuant to Article
66(d)(1), UCMJ. See Hardy, 77 M.J. at 443. When considering whether the charges
and specifications are unreasonably multiplied, this court analyzes the factors laid
out by our Superior Court in Quiroz:

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

Quiroz, 55 M.J. at 338 (citation omitted). Those five factors are not intended to be
all-inclusive, and one factor may be sufficiently compelling to warrant relief without
more. United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012). Essentially, “the
application of the Quiroz factors involves a reasonableness determination.”
Forrester, 76 M.J. at 394. When charges are unreasonably multiplied, dismissal of
the relevant charges is an available remedy. United States v. Roderick, 62 M.J. 425,
433 (C.A.A.F. 2006).

Here, I would find the government’s charging appellant with both the
penetration by licking and the kissing of HM’s vulva to be unreasonable. The two
acts, while separate and distinct, occurred within seconds of each other, and
appellant could not even recall which act occurred first. After reviewing the entire
record, it appears the government charged every touch and contact that occurred,
even though it appears the entire encounter lasted only a period of minutes. While
this charging decision does not create a multiplicity issue as contemplated by the
Fifth Amendment’s protection against double jeopardy, under the specific facts of
this case, I would find the charging decision unreasonable and dismiss Specification

 

(. . . continued)
counsel discussed a findings instruction on the record, but trial defense counsel
failed to request the discussed instruction).
GLASSCOCK—ARMY 20190227

2 of Charge I.* Nonetheless, after conducting a sentence reassessment, I would
affirm the sentence as adjudged. See United States v. Sales, 22 M.J. 305, 308
(C.M.A. 1986); United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013).

FOR THE COURT:

    

OHN P. TAITT
Chief Deputy Clerk of Court

 

* In evaluation the Quiroz factors, I note that four of the five factors weigh in favor
of the government. Specifically, appellant did not object at trial, the kissing and
licking are distinctly separate criminal acts, appellant’s punitive exposure remained
unchanged as the maximum punishment was confinement for life, and there is no
evidence of prosecutorial overreaching. Nonetheless, given the totality of the facts
and circumstances surrounding appellant’s sexual abuse of HM, I would find that
charging both the kissing and licking of the vulva exaggerates appellant’s
criminality.
