UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
KRIMBILL, BROOKHART, and WALKER
Appellate Military Judges

UNITED STATES, Appellee
v.
Private EZ MIKAEL E. GRULLON
United States Army, Appellant

ARMY 20180647

Headquarters, 25th Infantry Division
Kenneth W. Shahan, Military Judge
Colonel Terri J. Erisman, Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Angela D. Swilley,
JA; Major Patrick A. Crocker, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Craig J. Schapira, JA (on brief).

30 June 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BROOKHART, Senior Judge:

On December 3, 2018, a military judge sitting as general court-martial
convicted appellant, consistent with his pleas, of one specification of violating a
lawful general regulation, two specifications of wrongful distribution of a controlled
substance, two specifications of wrongful possession of a controlled substance, and
one specification of wrongful use of a controlled substance, in violation of Articles
92 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 912a [UCMJ].!
The military judge sentenced appellant to a bad-conduct discharge, confinement for

 

' The military judge sua sponte dismissed one specification of wrongful possession
of a controlled substance and one specification of wrongful introduction of a
controlled substance onto a military installation. Additionally, the military judge
granted a government motion, made pursuant to a pretrial agreement, to dismiss one
specification of wrongful use of a controlled substance.
GRULLON—ARMY 20180647

thirteen months, and reduction to the grade of E-1. Pursuant to a pretrial agreement,
the convening authority approved only six months of the sentence to confinement,
and otherwise approved appellant’s sentence as adjudged.

Relevant to this appeal, appellant agreed to plead guilty to Specification 2 of
Charge I, wrongful distribution of Xanax, and Specification 3 of Charge I, wrongful
possession with the intent to distribute Xanax. Each specification alleged that the
offense took place “at or near Schofield Barracks, Hawaii, on or about 8 June 2018.”
During the providence inquiry into the possession with intent to distribute
specification, appellant indicated that he possessed the Xanax over the course of two
days and ultimately sold it on the second day, which was the date alleged in both
specifications.

The military judge sua sponte inquired as to whether counsel believed the
distribution specification coupled with the possession with intent to distribute
specification created a multiplicity issue. After hearing from counsel, the military
judge, in reliance on United States v. Savage, 50 M.J. 244 (C.A.A.F. 1999), resolved
the issue by dismissing the “with the intent to distribute” language from
Specification 3 of Charge I, thereby converting it to simple possession of Xanax.
Although trial defense counsel advocated for dismissing the entire specification, he
did not lodge any formal objection after the specification was amended. Appellant
then proceeded with the remainder of the providence inquiry.

Following the providence inquiry, appellant expressly agreed to the maximum
punishment for the remaining charges and specifications, which reflected the
amendment to Specification 3 of Charge I. The military judge then went over each
of the terms of appellant’s pretrial agreement, including a lengthy discussion of the
term in which appellant agreed to “waive all waivable motions.” Appellant agreed
that he understood all the terms of his pretrial agreement and expressed his desire to
be bound by those terms. Finally, after one last consultation with his trial defense
counsel, appellant indicated to the military judge that he still desired to plead guilty.
The military judge then found appellant guilty of the remaining charges and
specifications.

Appellant now alleges that the military judge erred by failing to dismiss
Specification 3 of Charge I, in its entirety, because it is multiplicious with
Specification 2 of Charge I, the specification alleging distribution of the same
controlled substance. We disagree with appellant, and find appellant expressly
waived any multiplicity issue.
GRULLON—ARMY 20180647
LAW AND DISCUSSION

An unconditional guilty plea typically forfeits any claims of multiplicity
unless there is plain error. United States v Lloyd, 46 M.J. 19, 22 (C.A.A.F. 1997);
United States v. Heryford, 52 M.J. 265, 266, (C.A.A.F, 2000); see also United States
vy. Coleman, 79 M.J. 100, 102 (C.A.A.F, 2019). In such cases, appellate courts
determine plain error by analyzing whether the specifications in question are facially
duplicative. Jd. at 20; United States v. St. John, 72 M.J. 685, 687 (Army Ct. Crim.
App. 2013). However, where an appellant pleads guilty and agrees to waive all
waivable motions, multiplicity claims are expressly waived and thereby foreclosed
from even plain error review. See United States v. Gladue, 67 M.J. 311, 314
(C.A.A.F. 2009).

In this case, after the military judge sua sponte addressed the multiplicity
issue by amending Specification 3 of Charge I, appellant did not lodge an objection.
To the contrary, he continued with his providence inquiry, ultimately agreeing to the
maximum punishment calculated in light of the amended specification. Finally, after
a thorough exchange with the military judge, appellant acknowledged that he
understood and agreed to the provision in his pretrial agreement waiving all
waivable motions. Under these circumstances, we find that appellant expressly
waived any claim of multiplicity, and “a valid waiver leaves no error for us to
correct on appeal.” United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009)
(citation omitted).*

CONCLUSION

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

Chief Judge KRIMBILL and Judge WALKER concur.

FOR THE COURT:

bak atigenk

MALCOLM H. SQUIRES, JR.
Clerk of Court

 

2 We are cognizant that our Article 66(d), UCMJ, authority allows us to pierce a
valid waiver and consider the merits of an otherwise waived legal issue. See United
States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001). However, we elect not to
exercise that authority in this case.
