               U NITED S TATES AIR F ORCE
              C OURT OF C RIMINAL APPEALS
                           ________________________

                                No. ACM 39135
                           ________________________

                              UNITED STATES
                                  Appellee
                                       v.
                        Anthony N. FRISCIA
           Second Lieutenant (O-1), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 14 February 2018
                           ________________________

Military Judge: Andrew Kalavanos (arraignment); J. Wesley Moore.
Approved sentence: Dismissal, confinement for 8 months, and forfeiture
of all pay and allowances. Sentence adjudged 25 May 2016 by GCM con-
vened at Robins Air Force Base, Georgia.
For Appellant: Major Patricia Encarnación Miranda, USAF.
For Appellee: Colonel Laura J. Megan-Posch, USAF; Major Mary Ellen
Payne, USAF; Major Meredith L. Steer, USAF; Gerald R. Bruce, Es-
quire.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
Judge DENNIS delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge MINK joined.
                           ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                           ________________________

DENNIS, Judge:
    In accordance with Appellant’s pleas and pursuant to a pretrial agreement
(PTA), a general court-martial composed of a military judge sitting alone con-
victed Appellant of four specifications of failure to go to his appointed place of
                       United States v. Friscia, No. ACM 39135


duty, one specification of absence without leave, three specifications of wrong-
ful use of a controlled substance (marijuana, oxycodone, and hydrocodone), one
specification of wrongful possession of marijuana, and two specifications of so-
licitation (wrongful possession and introduction of oxycodone onto a military
installation ) in violation of Articles 86, 112a and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 886, 912a, 934, respectively. Appellant’s ad-
judged and approved sentence consisted of a dismissal, confinement for eight
months, and total forfeiture of pay and allowances. Appellant received 87 days
of pretrial confinement credit.
    Appellant raises two issues on appeal. In his first assignment of error, Ap-
pellant asks us to consider whether his conviction for soliciting another to pos-
sess oxycodone is unconstitutionally multiplicious with his conviction for solic-
iting another to introduce oxycodone onto a military installation. In his second
assignment of error, Appellant asserts that his sentence to eight months of
confinement is inappropriately severe. 1 Finding no error materially prejudicial
to Appellant’s substantial rights, we affirm the findings and sentence.

                                     I. BACKGROUND
    Appellant’s short military career was fraught with misconduct. In August
2014—less than 18 months after his first day of active-duty service—Appellant
was arrested for driving under the influence of alcohol. He consequently re-
ceived a letter of reprimand and an order suspending his base driving privi-
leges. In the months that followed, Appellant began reporting to work late, if
at all, earning himself several letters of counseling and reprimand as well as
nonjudicial punishment. Appellant also received a second nonjudicial punish-
ment for disobeying the order suspending his base driving privileges. By 2015,
Appellant had begun using marijuana and hydrocodone, and was addicted to
oxycodone. When a urinalysis revealed his drug abuse, Appellant, who had
been living off base, was restricted to the limits of Robins Air Force Base, Geor-
gia.
    Appellant’s base restriction limited his access to his drug dealer, who went
by the name “Rico.” So Appellant turned to Airman First Class (A1C) AR, who
had become a friend to Appellant after they coached youth basketball together.
Over a three-month period spanning between late 2015 and early 2016, Appel-
lant coordinated at least 15 drug transactions with Rico through A1C AR. For
each transaction, Appellant instructed A1C AR to obtain the drugs from Rico
and deliver them to Appellant’s on-base residence. Appellant also permitted
A1C AR to keep a portion of the oxycodone for himself. The ongoing scheme


1   This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


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                   United States v. Friscia, No. ACM 39135


was foiled after a federal investigation into Rico revealed their transactions.
Appellant was subsequently placed into pretrial confinement pending trial.
   Prior to his court-martial, Appellant entered a PTA with the convening au-
thority whereby Appellant agreed, inter alia, to waive all waivable motions in
exchange for a confinement cap of ten months. The agreement contained no
other limitations on the sentence the convening authority could approve.

                               II. DISCUSSION
A. Multiplicity
    Appellant asserts that the specifications in Additional Charge III are un-
constitutionally multiplicious. Because Appellant raises the issue for the first
time on appeal, we must first clarify, yet again, the meaning of waiver in the
context of the PTA provision to “waive all waivable motions.” The oft-used pro-
vision was squarely addressed by the Court of Appeals for the Armed Forces
(CAAF) in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009). In fact, the
court specifically addressed whether such a provision waived, versus forfeited,
issues of multiplicity and unreasonable multiplication of charges raised for the
first time on appeal. The court held,
       Although the President has prohibited the waiver of certain fun-
       damental rights in a PTA, neither multiplicity nor the unreason-
       able multiplication of charges is among them. R.C.M.
       705(c)(1)(B). Appellant’s express waiver of any waivable motions
       waived claims of multiplicity and unreasonable multiplication of
       charges, and extinguished his right to raise these issues on ap-
       peal. This being the case, we need not reach the issue of whether
       the specifications were in fact facially duplicative.
Id. at 314.
    Here, as in Gladue, Appellant agreed to waive all waivable motions in his
PTA. Likewise, although he did not expressly identify multiplicity as an issue
he considered raising at trial, he did establish that his decision to “waive all
waivable motions” was knowing and voluntary. Appellant later engaged in an
extensive colloquy with the military judge and acknowledged that, in addition
to a motion to suppress the defense considered filing, he was also waiving any




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                    United States v. Friscia, No. ACM 39135


motion that could be waived pursuant to a guilty plea. Appellant therefore ex-
tinguished his right to raise these issues on appeal and we need not reach the
issue of whether the specifications were in fact facially duplicative. 2
B. Sentence Appropriateness
   Appellant next alleges that his sentence to eight months of confinement is
inappropriately severe. We disagree.
    We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we find] correct in law and
fact and determine[ ], on the basis of the entire record, should be approved.”
Article 66(c), UCMJ, 10 U.S.C. § 866(c) (alteration in original). “We assess sen-
tence appropriateness by considering the particular appellant, the nature and
seriousness of the offense[s], the appellant’s record of service, and all matters
contained in the record of trial.” United States v. Anderson, 67 M.J. 703, 705
(A.F. Ct. Crim. App. 2009) (alteration in original) (citations omitted). While we
have great discretion in determining whether a particular sentence is appro-
priate, we are not authorized to engage in exercises of clemency. United States
v. Nerad, 69 M.J. 138, 148 (C.A.A.F. 2010).
    Appellant bases his sentence severity claim on two factors. First, he alleges
that the four specifications for failure to go to his appointed place of duty
greatly exaggerate his misconduct. Appellant does not contest that he commit-
ted these offenses, but simply restates the extenuating circumstances he
shared with the military judge when pleading guilty. Appellant also told the
military judge that, notwithstanding the circumstances surrounding his mis-
conduct, he was not justified in committing any of the offenses to which he
pleaded guilty. Second, Appellant asserts that the two solicitation specifica-
tions should have been only one specification because “[b]y asking [A1C AR] to
bring the oxycodone onto the military installation it necessarily included [A1C
AR] possessing such oxycodone.” In making this argument, Appellant essen-
tially raises an issue of unreasonable multiplication of charges. Based on our
earlier finding that Appellant waived appellate review of this issue, we need
not further address it.
    Based solely on the charges to which he pleaded guilty, Appellant faced a
maximum term of confinement of 27 years and 5 months; he was sentenced to
eight months, or less than two and a half percent of that amount. Despite mul-
tiple efforts to address Appellant’s misconduct through less punitive means,


2 We have also considered whether we should exercise our authority to consider Appel-
lant’s claim under Article 66(c), UCMJ, 10 U.S.C. § 866(c), in spite of Appellant’s
waiver. See United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016). We decline to do so.


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                    United States v. Friscia, No. ACM 39135


Appellant continued to engage in misconduct, engaged in more serious crimes
involving drugs, and eventually recruited a junior Airman to join him. After
giving individualized consideration to Appellant, his record of service, the na-
ture and severity of the offenses, and all other matters contained in the record
of trial, we do not find Appellant’s sentence to be inappropriately severe.

                                 III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. 3 Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.


                  FOR THE COURT



                  JULIE L. ADAMS
                  Acting Deputy Clerk of the Court




3We note that the staff judge advocate recommendation (SJAR) identifies a report of
result of trial dated 25 May 2016 but the report attached is dated 29 August 2016,
which is after the date of action. However, the report attached to the addendum to the
SJAR is dated 25 May 2016 and is otherwise identical to the report dated 29 August
2016.


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