UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
ALDYKIEWCZ, SALUSSOLIA, and WALKER
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Private E2 DANIEL J. MAS
United States Army, Appellant

ARMY 20190084

Headquarters, United States Army Alaska
Timothy P. Hayes, Jr., Military Judge
Colonel James A. Barkei, Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Angela D. Swilley,
JA; Captain Paul T. Shirk, JA (on brief); Major Angela D. Swilley, JA; Captain Paul
T. Shirk, JA (on reply brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Dustin B. Myrie, JA; Captain Austin I. Price, JA (on brief).

27 February 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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

Appellant and two other soldiers, a Specialist and a Sergeant, sexually
violated a fellow service member, Airman First Class (A1C) AL while she was too
intoxicated to consent to the sexual activity that appellant and others performed on
her. In addition to sexually violating AlC AL, and encouraging others to do the
same, appellant videotaped the sexual acts without AlC AL’s consent and shared the
nonconsensual recording with at least one other person. !

 

1 As a result, appellant was charged with four specifications of sexual assault, one
specification of abusive sexual contact, one specification of indecent recording, and
one specification of indecent viewing, in violation of Articles 120 and 120c,

(continued .. .)
MAS—ARMY 20190084

Appellant’s sole assignment of error is that his convictions for abusive sexual
contact, Specification 4 of Charge I, and sexual assault, Specification 5 of Charge I,
are an unreasonable multiplication of charges (UMC). Appellant raises this claim
for the first time on appeal. Appellant acknowledges his failure to raise the issue at
trial, but argues that, “[w]hile such inaction likely constitutes waiver, waiver does
not affect this court’s plenary power under Article 66(c), UCMJ to ensure just
results in courts-martial.” Essentially, appellant requests this court “use its
‘awesome, plenary, de novo power’ under Article 66(c)” to dismiss Specification 4
of Charge I.

Whether to Notice a Waived Issue

An unconditional guilty plea waives an unpreserved UMC objection. See
United States v. Hardy, 77 M.J. 438, 443 (C.A.A.F. 2018).? A valid waiver leaves
no error to correct on appeal. See United States vy. Ahern, 76 M.J. 194, 197
(C.A.A.F. 2017) (citations omitted). As our superior court noted in Hardy, “a [Court
of Criminal Appeals] may choose to use its Article 66(c), UCMJ, power to address a
UMC objection that has been waived.” 77 M.J. at 443 (citing United States v.
Quiroz, 55 M.J. 334 (C.A.A.F. 2001)).

 

(. . . continued)

Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 920 and 920c. A military
judge sitting as a general court-martial convicted appellant pursuant to his pleas of
one specification of sexual assault, one specification of abusive sexual contact, one
specification of indecent recording, and one specification of indecent viewing, in
violation of Articles 120 and 120c, UCMJ. The military judge sentenced appellant
to a dishonorable discharge, twenty-two months of confinement, and reduction to the
grade of E-1. Consistent with appellant’s pretrial agreement and his substantial
assistance in the prosecutions of his co-accuseds, the convening authority approved
only so much of the sentence as provided for a bad-conduct discharge, twelve
months of confinement, and reduction to the grade of E-1. Also pursuant to the
pretrial agreement, the convening authority dismissed the three remaining
specifications of sexual assault.

2 Appellant’s case was referred on 25 October 2018. As such, our review is through
the lens of Rule for Courts-Martial (R.C.M.) 905(b)(2) and 905(e) in effect before
the President’s amendments to the Manual for Courts-Martial implemented through
Executive Order No. 13,825, 83 Fed. Reg. 9889 (8 Mar. 2018) (effective Jan. 1,
2019), the same provisions at issue in Hardy. In other words, the amendment to
R.C.M. 905(b), which states a failure to raise an objection under the rule “forfeits”
the objection “absent an affirmative waiver,” “does not apply to cases in which
charges were referred to trial prior to [1 January 2019].” Hardy, 77 M.J. 438, n. 2
(citations omitted).
MAS—ARMY 20190084

Most recently, this court addressed whether to notice an unpreserved claim of
UMC, raised for the first time on appeal, following an unconditional guilty plea.
See United States v. Conley, 78 M.J. 747, 751 (Army Ct. Crim. App. 2019)
(analyzing and providing a framework for noticing waived issues in light of a
service court’s obligation under Article 66, UCMJ to “determine whether the
findings and sentence of a case are: (1) correct in law; (2) correct in fact; and (3)
should be approved”).

Having considered this court’s Article 66, UCMJ obligation and Conley’s
analytical framework for noticing waived issues, we decline appellant’s invitation to
notice his UMC claim. In Conley this court noted that:

Nearly all pretrial agreements involve compromise by the
accused and government .... The government usually
agrees to reduce the sentence exposure of the accused and
often agrees to dismiss some of the charges that the

accused is facing. The accused gives up, most

importantly, the obligation for the government to prove

guilt. -
Id. at 752.

Appellant’s case is no different. The government agreed to dismiss three
sexual assault specifications, reducing appellant’s exposure by ninety years and, in
return, appellant gave up his right to have the government prove the allegations to
which he pleaded guilty. In addition to dramatically reducing appellant’s total
exposure, the government agreed to a confinement cap of twenty-four months, less
than five percent of his exposure when considering the offense for which appellant
pleaded guilty. Appellant was only sentenced to twenty-two months of confinement
and the convening authority reduced that period of confinement by ten months.

Lastly, our review of the entire record reveals the absence of any impropriety
by the government, government overreach or excess, or any factor, compelling or
otherwise, that would weigh in favor of noticing the waived UMC issue.

As we noted in Conley, there will be cases where noticing a waived issue is
warranted and appropriate. 78 M.J. at 753. This is not that case.

 

3 Appellant’s guilty plea exposed him to a maximum period of confinement of forty-
three years.
MAS—ARMY 20190084
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court
UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
ALDYKIEWICZ, SALUSSOLIA, and WALKER
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Private EZ DANIEL J. MAS
United States Army, Appellant

ARMY 20190084

IT IS ORDERED THAT, to reflect the true proceedings at the trial of the
above-captioned case,

GENERAL COURT-MARTIAL ORDER NUMBER 3, HEADQUARTERS,
UNITED STATES ARMY ALASKA, 724 POSTAL SERVICE LOOP #5700, JOINT
BASE ELMENDORF-RICHARDSON, ALASKA 99505-5700, dated 30 May 2019,

IS CORRECTED AS FOLLOWS:

BY deleting the word “contact” in line two, Specification
1, Charge I, and substituting therefor the word “act.”

DATE: 27 February 2020

FOR THE COURT:

Leb,

MALCOLM H. SQUIRES, J
Clerk of Court

   
