UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                 MULLIGAN, LEVIN, 1 and WOLFE
                                    Appellate Military Judges

                                 UNITED STATES, Appellee
                                              v.
                                 Captain JOHN W. LONIAK
                                United States Army, Appellant

                                         ARMY 20150835

                                    Headquarters, I Corps
                       Jeffrey D. Lippert, Military Judge (arraignment)
                            Sean F. Mangan, Military Judge (trial)
                      Colonel Randall J. Bagwell, Staff Judge Advocate

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Captain Katherine L.
DePaul, JA; Captain Michael A. Gold, JA (on brief); Lieutenant Colonel Christopher
D. Carrier, JA; Captain Katherine L. DePaul, JA; Captain Michael A. Gold, JA
(Motion to Stay the Proceedings and Motion for R.C.M. 706 Inquiry).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Michael E. Korte, JA; Captain Christopher A. Clausen, JA (on brief).


                                          18 August 2017

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

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

LEVIN, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of attempted wrongful appropriation, three
specifications of wrongful appropriation, six specifications of larceny, and one
specification of conduct unbecoming an officer and a gentleman, in violation of
Articles 80, 121, and 133, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 921,
933 (2012) [hereinafter UCMJ]. The military judge sentenced appellant to be
dismissed from the service and to be confined for ten months. Although the plea
agreement limited the term of confinement to six months, the convening authority

1
    Judge Levin took final action while on active duty.
LONIAK–ARMY20150835

granted clemency, approving the findings and only so much of the sentence as
provided for a dismissal from the service and four months confinement.

      Appellant’s case is before this court for review under Article 66, UCMJ.
Appellate defense counsel raises four errors, all of which merit discussion and one
of which the government concedes merits relief. We provide relief in our decretal
paragraph. The matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), are without merit.

                                  BACKGROUND

       Over a period of five months, appellant entered numerous Army and Air Force
Exchange Service (AAFES) facilities, removed the posted price tags from high-
priced items, and substituted tags reflecting lower prices. With respect to the
larceny specifications, appellant wrongfully obtained several items of merchandise
in a total amount exceeding $10,000.00. Among the items included in his scheme
were seven Apple Mac mini computers, an Apple Airport Time Capsule, and a
shredder. In the box containing the shredder, appellant hid ten secure digital
memory cards. On one occasion, appellant attempted to purchase a camera and two
more mini computers, but abandoned his scheme on that particular day when he was
questioned by a suspicious cashier.

        After making the various purchases, appellant returned several of the items
for a full refund, which was provided to him in the form of store credit on AAFES
gift cards. Appellant would thereafter purchase Visa gift cards with the AAFES gift
cards that he could use in facilities not associated with AAFES. In an effort to avoid
detection, appellant engaged in his long-term crime spree at different AAFES
facilities on installations throughout California, Nevada, and Washington.

A. Whether a Subsequent Mental Health Diagnosis Renders the Pleas Improvident.

       Prior to appellant’s trial, he underwent a mental health evaluation pursuant to
Rule for Courts-Martial [hereinafter R.C.M.] 706. The so-called “sanity board”
determined that appellant suffered from post-traumatic stress disorder, disordered
social connectedness, and maladaptive gambling behaviors. Significantly, the board
concluded that appellant did not suffer from a severe mental defect at the time of his
crimes and he was able to appreciate fully the nature, quality, and wrongfulness of
his conduct.

      After the convening authority took action on his case, and after his release
from confinement, appellant obtained treatment from two mental health
professionals, one of whom diagnosed appellant with post-traumatic stress disorder
and schizoaffective disorder, bipolar type. Neither of the two practitioners




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LONIAK–ARMY20150835

concluded that appellant was unable to appreciate fully the nature, quality, and
wrongfulness of his conduct. 2

       Rather than raise the issue of a new trial in light of newly-discovered
evidence, which is precluded under the procedural rules, appellant contends his pleas
were improvident as a result of his subsequent mental health diagnosis. See
R.C.M. 1210(a) (“A petition for a new trial of the facts may not be submitted on the
basis of newly discovered evidence when the petitioner was found guilty of the
relevant offense pursuant to a guilty plea.”). To that end, appellant submitted
various materials for our review that were not presented to the military judge. There
is nothing that permits this court to consider these materials in the context of an
appeal of a guilty plea. Nevertheless, even considering these materials, for the
reasons stated below, we disagree with appellant’s contention.

       A military judge’s acceptance of a guilty plea is reviewed for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A guilty
plea will be rejected only where the record of trial shows a substantial basis in law
or fact for questioning the plea. United States v. Hardeman, 59 M.J. 389, 391
(C.A.A.F. 2004); United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002); United
States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991). We review de novo the military
judge’s legal conclusion that appellant’s pleas were provident. Inabinette, 66 M.J.
at 322. A plea of guilty waives a number of important constitutional rights. United
States v. Care, 18 C.M.A 535, 541-42, 40 C.M.R. 247 (1969). As a result, the
waiver of these rights must be an informed one. United States v. Hansen, 59 M.J.
410, 412-13 (C.A.A.F. 2004).

      During the providence inquiry, the military judge and appellant engaged in the
following colloquy:

             MJ: I note that Appellate Exhibit I references a result of a
             706 inquiry that was conducted in this case. In addition[,]
             I would just like to discuss with you and your counsel,
             briefly, the concept of mental responsibility just so it’s
             clear on the record, okay, Captain?

             ACC: Yes, sir:

             MJ: Based on the information contained in the 706
             request and the fact that there was a 706 request raises the


2
  Lack of mental responsibility can be a valid defense in only one situation, when:
“at the time of the commission of the acts constituting the offense, the accused, as a
result of a severe mental disease or defect, was unable to appreciate the nature and
quality or the wrongfulness of his or her acts.” R.C.M. 916(k)(1).


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LONIAK–ARMY20150835

             discussion of whether or not the defense of lack of mental
             responsibility exists in this case. By that I mean whether
             there is a defense that you would be potentially able to
             raise against these crimes based on whether you were not
             mentally responsible due to a severe mental disease or
             defect.

       The military judge then proceeded to explain the term “severe mental disease
or defect” and asked appellant if he understood the term. Appellant indicated that he
did, after which time the colloquy continued as follows:

             MJ: If at the time of the offense you are not suffering
             from a mental disease or defect, then there is no defense
             of mental responsibility. Do you understand that?

             ACC: Roger, sir.

             MJ: If at the time of the offense you were suffering from
             a mental disease or defect, then I must inquire whether as
             a result of that severe mental disease or defect you were
             unable to appreciate the nature and quality of the
             wrongfulness of your conduct. Do you understand that?

             ACC: Yes, sir.

             MJ: Have you discussed this with your attorney?

             ACC: Yes[,] I have, sir.

             MJ: Defense [c]ounsel, do you believe that there is a
             defense of mental responsibility at the time of the offense
             in this case?

             DC: Sir, I do not. I have been detailed to this case since
             12 May of 2015. I have met with [appellant] numerous
             times over the course of my representation of him.
             Consulted with two different civilian attorneys and a
             number of other investigative sources in this case, sir, and
             I am confident based on the investigation that, while there
             may be mental health mitigation factors, those factors do
             not rise to the level of a defense.

             MJ: [Appellant], do you . . . understand what I’ve
             basically asked your counsel here. From his perspective,



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LONIAK–ARMY20150835

             having discussed the topic with you, and to sort of
             document that, do you agree with your counsel?

             ACC: I do, sir.

       At the conclusion of appellant’s providence inquiry, and after appellant again
indicated that he still wished to plead guilty, the military judge stated:

             I find that your plea of guilty is made voluntarily, and
             with full knowledge of its meaning and affect. I further
             find that you have knowingly, intelligently, and
             consciously waived your rights against self-incrimination,
             to a trial of the facts by a court-martial and to be
             confronted by the witnesses against you. Further, there is
             no defense applicable to the offenses based on your
             statements and the evidence presented. Accordingly,
             your plea of guilty is provident and I do accept it . . . .

       In support of his position that his pleas were improvident, appellant relies on
United States v. Harris, 61 M.J. 391, 398 (C.A.A.F. 2005) (setting aside an
accused’s guilty pleas due to the military judge’s findings that the accused suffered
from a severe mental disease or defect). There are at least two significant facts that
easily distinguish this case from Harris. First, in Harris, the military judge failed to
inquire whether the accused understood that he had the defense of lack of mental
responsibility available to him. Second, in Harris, there was some evidence that the
accused could not appreciate the nature and quality and wrongfulness of his conduct.
That is simply not the case here.

       In this case, the military judge raised the issue of a potential defense of
mental responsibility and discussed that issue in some detail with appellant.
Appellant, along with his counsel, acknowledged that they were aware of the
potential defense and that it did not apply. Moreover, neither of the two mental
health professionals retained by appellant indicated that he was unable to appreciate
the wrongfulness of his conduct. Given that appellant went to some length to avoid
detection during his crime spree, this is not surprising. At most, appellant now has
some evidence post-trial that his diagnosis is different than his diagnosis before
trial. This subsequent diagnosis, however, does not “undermine the adequacy of the
plea.” Inabinette, 66 M.J. at 323. See also United States v. Shaw, 64 M.J. 460, 462-
64 (C.A.A.F. 2007). Unless the condition is severe enough to cause the appellant to
not “appreciate the nature and quality or the wrongfulness of the acts[,]” it “does not
otherwise constitute a defense.” UCMJ art. 50a(a). There is no evidence before us
that appellant did not appreciate the nature and quality or the wrongfulness of his
acts. Thus, we conclude that the military judge did not abuse his discretion and
there is not a substantial basis in law or fact to question appellant’s pleas of guilty.



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              B. Whether Theft of “Store Credit” Amounts to Larceny.

       In his second assigned error, appellant argues that the specifications alleging
larceny failed to state an offense because “store credit” is intangible and cannot be
stolen. We review whether a specification states an offense de novo. United States
v. Schloff, 74 M.J. 312, 313 (C.A.A.F. 2015). Failure to state an offense is a non-
waivable ground for dismissal of a charge. R.C.M. 907(b)(1)(B). 3

       To determine if a specification states an offense, we employ a three-prong test
in which the specification must: 1) allege the essential elements of the offense,
either expressly or by necessary implication; 2) provide notice to the accused of the
offense so he can defend against it; and 3) give sufficient facts to protect against
double jeopardy. United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994); United
States v. Sell, 3 U.S.C.M.A. 202, 206, 11 C.M.R. 202, 206 (C.M.A. 1953). There is
no question that the specifications for larceny alleged all of the essential elements of
larceny. Each specification alleged a specific date range and location. Each
specification alleged that appellant stole property with the intent permanently to
deprive the owner of its use, that is, store credit, and that the credit was a thing of
value.

       During his providence inquiry below, appellant acknowledged that store credit
was a thing of value as he could use it to purchase other items. On appeal, however,
appellant contends that AAFES “store credit” cannot be stolen because it is
“intangible” and therefore not capable of being possessed, citing to United States v.
Mervine, 26 M.J. 482, 483 (C.M.A. 1988). In that case, our superior court held that
extinguishing a debt through fraud did not constitute larceny because a debt is not
the proper subject of a larceny charge. In reaching its decision, the court noted
“[P]ossession cannot be taken of a debt or of the obligation to pay it, as tangible
property might be taken possession of” and a debt is “simply not the equivalent of
money for purposes of Article 121[, UCMJ].” Id. at 483-84 (quotation marks and
citation omitted). Appellant’s fraudulent acquisition of store credit is not analogous
to the fraud perpetrated in Mervine.

      As stated by our sister court in United States v. Perrine:

             The offense of larceny requires the appellant to have
             wrongfully taken or obtained “money, personal property,


3
 We note that R.C.M. 907 changed after trial and no longer includes subsection
(b)(1)(B). Compare R.C.M. 907(b)(1) (2012), with R.C.M. 907(b)(1) (2016). We
assume, without deciding, that the 2012 version of the rule applies to this appeal.
See United States v. Thomas, ARMY 20150205, 2016 CCA LEXIS 551, at *4-11
(Army Ct. Crim. App. 9 Sept. 2016) (mem. op.) (discussing changes to R.C.M. 907).


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LONIAK–ARMY20150835

             or [an] article of value of any kind,” from its owner with
             the requisite intent. Additionally, “[w]rongfully engaging
             in credit, debit, or electronic transaction to obtain goods
             . . . is usually a larceny of those goods from the merchant
             offering them.”

ACM S31972, 2013 CCA LEXIS 234, at *10 (A.F. Ct. Crim. App. 18 Mar. 2013)
(internal citations omitted).

       In this case, appellant did “take possession” of “tangible property” that had
“value.” He walked away from the AAFES customer service counter carrying a gift
card that had been credited with the value of the item he had just fraudulently
returned to AAFES. In addition to its literal value as a piece of plastic, that card
had a further tangible and actual value—the dollar amount contained on it.
Appellant took that tangible value (which was equivalent to money) and converted it
to the goods he received from AAFES by using those gift cards to buy additional
items valued at over $500.00.

       This court has also addressed whether a gift card has value and could be the
subject of a larceny charge in the context of a guilty plea. In United States v.
Manriquez, we rejected appellant’s claim that a gift card had no tangible value other
than the plastic itself. ARMY 20140893, 2016 CCA LEXIS 347, at *9 (Army Ct.
Crim. App. 20 May 2016) (noting that “[a]n activated gift card, like a movie ticket,
sports ticket, or lottery ticket, is an object with value”).

       In this case, appellant pled guilty and acknowledged during his providence
inquiry that the gift cards had value in that he “could use [them] to buy other
things[.]” Value is a question of fact, not law. Manual for Courts-Martial, United
States (2012 ed.), pt. IV, ¶ 46.c.(1)(g)(i). As this was a guilty plea, appellant’s
admissions that the card had value is conclusive. Thus, appellant’s conduct
amounted to larceny, and the charge sheet properly stated an offense.

   C. Whether Larceny and Conduct Unbecoming an Officer and Gentleman are
                               Multiplicious.

       Appellant alleges, and the government concedes, that one specification
alleging larceny and one specification alleging conduct unbecoming an officer and
gentleman are multiplicious. See United States v. Frelix-Vann, 55 M.J. 329
(C.A.A.F. 2001). We agree.

       Claims of multiplicity are reviewed de novo. United States v. Anderson, 68
M.J. 378, 385 (C.A.A.F. 2010) (citing United States v. Roderick, 62 M.J. 425, 431
(C.A.A.F. 2006)). In United States v. Campbell, our superior court discussed the
distinction between multiplicity, unreasonable multiplication of charges for findings,



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LONIAK–ARMY20150835

and unreasonable multiplication of charges for sentencing. 71 M.J. 19, 22 (C.A.A.F.
2012). The court clarified that “there is only one form of multiplicity, that which is
aimed at the protection against double jeopardy as determined using the
Blockburger/Teters analysis.” Id. at 23 (referring to Blockburger v. United States,
284 U.S. 299 (1932), and United States v. Teters, 37 M.J. 370 (C.M.A. 1993)).
Blockburger provides that when “the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision requires proof of a fact
which the other does not.” Blockburger, 284 U.S. at 304.

       In this case, Specification 1 of Charge II charged appellant with the theft of
an Apple Mac Mini on divers occasions, between 20 August 2014 and 8 September
2014. The Specification of Charge III charged appellant with conduct unbecoming
an officer and a gentleman in that he obtained an Apple Mac Mini on divers
occasions, between 20 August 2014 and 8 September 2014, through false pretenses.
As the government acknowledges, the only difference in the specifications is the
unbecoming nature of the conduct alleged in the Specification of Charge III. Thus,
one of the specifications must be dismissed. See Frelix-Vann, 55 M.J. at 331
(explaining, under Teters analysis, “since only one offense (conduct unbecoming by
committing larceny) has a different element than the other (larceny), these offenses
were not separate”).

      Appellant acknowledges that it is the government’s prerogative to decide
which specification should be dismissed. United States v. Palagar, 56 M.J. 294, 296
(C.A.A.F. 2002). The government seeks to dismiss the Specification of Charge III
and Charge III, which we do below.

  D. Whether Failure to Call Certain Witnesses in the Presentencing Phase of the
          Court-Martial Amounts to Ineffective Assistance of Counsel.

       Although appellant praised his defense team in his unsworn statement,
asserting they had done a “champion’s job,” appellant now complains that his
defense counsel were ineffective during the presentencing phase of the court-martial
by failing to present testimonial evidence in extenuation and mitigation regarding
the following: 1) appellant’s mental health and medical conditions; and 2) his
previous good duty performance. We disagree.

       To prevail on a claim of ineffective assistance of counsel, “an appellant must
demonstrate both (1) that his counsel’s performance was deficient, and (2) that this
deficiency resulted in prejudice.” United States v. Green, 68 M.J. 360, 361-62
(C.A.A.F. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984))
(additional citation omitted). “We review ineffective assistance of counsel claims
de novo.” Id. at 362.




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LONIAK–ARMY20150835

       When assessing Strickland’s first prong, we “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance[.]” 466 U.S. at 689. To demonstrate prejudice, “‘the
[appellant] must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’” Green, 68 M.J. at 362 (quoting Strickland, 466 U.S. at 698). “If we
conclude that any error would not have been prejudicial under the second prong of
Strickland, we need not ascertain the validity of the allegations or grade the quality
of counsel’s performance under the first prong.” United States v. Saintaude, 61 M.J.
175, 179-80 (C.A.A.F. 2005) (citing Strickland, 466 U.S. at 697).

       During the presentencing phase of appellant’s court-martial, defense counsel
presented a three-page list of thirty-six prescribed medications that had been
dispensed to appellant over the years. Appellant contends, however, that he received
ineffective assistance of counsel because his defense counsel failed to introduce the
medical and mental health history that necessitated those prescriptions. Appellant
further claims that his counsel were ineffective by failing to call witnesses who
could testify about his accomplishments during his stints in the Navy, Marine Corps,
and his enlisted time in the Army.

       The record of this guilty plea compellingly demonstrates defense counsel were
not ineffective at sentencing. In addition to presenting a memorandum of expected
retirement benefits that showed a potential financial loss of $1.6 million to appellant
and his family, counsel moved into evidence a comprehensive 27-page Good Soldier
Book. This latter exhibit included Officer Evaluation Reports, Noncommissioned
Officer Evaluation Reports, along with several training documents. Appellant’s wife
and a former neighbor also testified, both of whom described the appellant as a
supportive parent. Rather than highlight appellant’s medical issues and military
service through witness testimony, counsel emphasized the financial harm to
appellant should he be dismissed from the Army and the impact that harm would
have on his family. Still, as discussed supra, they did not ignore the mental health
issues. Earlier, the military judge had been presented with the findings of the
R.C.M. 706 sanity board, which reflected that appellant suffered from post-traumatic
stress disorder, disordered social connectedness, and maladaptive gambling
behaviors. In his closing argument, defense counsel reminded the judge of the
results of that board, urging him to also “consider the medical history, the numerous
drugs that [appellant] has been prescribed throughout his time in the Army for a
variety of things, . . . from things then related to health issues that have come up out
of the Army, sir.”

       The record of trial convincingly demonstrates that defense counsel had sound
and reasonable tactical reasons for the course of action they chose. See United
States v. Perez, 64 M.J. 239, 243-44 (C.A.A.F. 2006). For instance, had defense



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counsel highlighted the mental health issues to any greater extent through witness
testimony, government counsel would have likely emphasized the premeditation and
care that went into appellant’s crimes, such as: 1) their planning and subsequent
execution which involved purchasing lower priced items, switching price tags,
returning the items for a full refund, and obtaining gift cards; 2) the fact that this
course of conduct continued for several months; 3) appellant’s concealment of a
number of digital memory cards in a box containing a shredder; 4) appellant’s
decision to leave the store prior to purchasing a camera and two computers when he
was questioned by a suspicious employee; and 5) appellant’s additional efforts to
avoid detection by traveling to different installations in three different states. These
deliberate actions, which would have likely been elicited through cross-examination
of witnesses, might very well have shifted the focus from appellant’s family and
financial hardship to his calculating conduct.

       We therefore find that appellant has failed to meet his burden of
demonstrating that his counsel’s conduct was deficient. Even if we were to assume a
flawed strategy, appellant has not met his burden to show any prejudice in this case
where, among other things, he was facing a dismissal and nineteen years of
confinement and was sentenced only to a dismissal and ten months of incarceration.
Furthermore, with the benefit of his counsel’s efforts in securing a pretrial
agreement and post-trial clemency, only the dismissal and four months of
confinement were approved. Appellant has “not surmounted” the “very high hurdle”
required to successfully claim ineffective assistance of counsel. United States v.
Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997).

                                   CONCLUSION

       The findings of guilty of the Specification of Charge III and Charge III are set
aside and dismissed. The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), and
United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986). We are confident that
based on the entire record and appellant’s course of conduct, the military judge
would have imposed a sentence of at least that which was adjudged, and accordingly
we AFFIRM the sentence.

      We find this reassessed sentence is not only purged of any error but is also
appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.




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LONIAK–ARMY20150835

    Senior Judge MULLIGAN and Judge WOLFE concur.

                                  FOR THE COURT:
                                  FOR THE  COURT:




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




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