          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                          _________________________

                              No. 201600118
                          _________________________

                  UNITED STATES OF AMERICA
                                   Appellee
                                       v.
                         JEREMY E. HASSETT
                    Chief Petty Officer (E-7), U.S. Navy
                                 Appellant
                          _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

     Military Judge: Captain Charles N. Purnell, JAGC, USN .
     For Appellant: Commander R.D Evans, JR., JAGC, USN.
For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,
          USN; Lieutenant Jetti L. Gibson, JAGC, USN.
                     _________________________

                         Decided 6 December 2016
                          _________________________

Before C AMPBELL , R UGH , and G ROHARING , Appellate Military Judges
                       _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

RUGH, Judge:

   A military judge sitting as a special court-martial convicted the
appellant pursuant to his pleas of three specifications of failure to obey
a lawful order in violation of Article 92, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 892; one specification of damaging non-
military property in violation of Article 109, UCMJ, 10 U.S.C. § 909;
and two specifications of assault consummated by a battery in
violation of Article 128, UCMJ, 10 U.S.C. § 928.1 The military judge

   1 The appellant was charged with, and pleaded guilty to, four specifications of
assault consummated by battery. However, prior to the announcement of sentence,
sentenced the appellant to 85 days’ confinement, reduction to pay
grade E-5, and a bad-conduct discharge.
   The convening authority (CA) approved the sentence and, pursuant
to a pretrial agreement (PTA), suspended the bad-conduct discharge
until the end of the appellant’s obligated service at which time, unless
sooner vacated, it was to be remitted without further action.2
   Subsequently, the cognizant special court-martial convening
authority (SPCMCA) convened a vacation hearing pursuant to RULE
FOR COURTS-MARTIAL (R.C.M.) 1109, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.). On 11 May 2016, the general court-martial
convening authority (GCMCA) vacated the suspended bad-conduct
discharge.
   The appellant now raises three assignments of error (AOE): (1)
that the court-martial order (CMO) failed to correctly reflect the
consolidation of three specifications of assault consummated by battery
into one specification; (2) that the vacation hearing denied the
appellant due process under the law; and (3) that the military judge
committed plain error when he admitted prosecution exhibits
containing uncharged misconduct during the presentencing phase of
the court-martial.
   We agree with the appellant’s first and second AOE and will direct
and take corrective action in our decretal paragraph. Otherwise, we
conclude the findings and sentence are correct in law and fact, and we
find no other error materially prejudicial to the appellant’s substantial
rights. Arts. 59(a) and 66(c), UCMJ.
                               I. BACKGROUND
   The appellant, assigned to Navy Recruiting District Philadelphia,
had a tumultuous and abusive relationship with his domestic partner,
K.R. On 14 March 2015, while staying at a cabin with K.R. and her
four children, the appellant assaulted K.R., grabbing her hair,
dragging her across the ground, striking her with an empty softball
bag, and slapping her with his open palm.


the military judge consolidated three of the specifications into one as an
unreasonable multiplication of charges, finding that the three specifications
unreasonably exaggerated the appellant’s criminality. Record at 142.
   2   Pursuant to the PTA, the CA also remitted any automatic reduction in grade
below the pay grade of E-5. The appellant received 139 days pretrial confinement
credit and was released from the confinement facility following his December 2015
trial.

                                       2
   Two months later on 7 and 8 May 2015, the appellant violated a
military protective order (MPO)—issued after the cabin altercation—
by meeting with K.R., first at a casino and then again outside her
home near Bethlehem, Pennsylvania, resulting in the appellant
angrily punching through a room window.
   Subsequently, on 17 July 2015, appellant again violated the MPO
when he met up with K.R. at a casino, and then grabbed her by the
back of the neck after becoming angry with her.
                            II. DISCUSSION
A. Incorrect CMO
    At court-martial, the appellant pleaded guilty to four specifications
of assault consummated by battery based upon the three incidents at
the cabin on 14 March 2015 and the single incident at the casino on 17
July 2015. After findings, but before the announcement of sentence,
trial defense counsel moved for Specifications 1, 2, and 3 of Charge
III—the cabin assaults—to be merged as an unreasonable
multiplication of charges.
   The military judge agreed, finding that the three assaults at the
cabin were a “continuing course of conduct that lasted over, a brief
period of time of 10 minutes, and that charging each distinct act and
what was a continuing, ongoing assault exaggerate[d] the [appellant’s]
criminality in this matter.”3 The military judge then consolidated the
specifications, reading a new specification into the record and ordering
the Report of Results of Trial (RROT) to reflect the consolidated
specification in lieu of the three original specifications.4
    While the RROT, prepared immediately after trial, correctly
identified that the appellant was found guilty of only two specifications
of assault consummated by battery, the CMO of 28 March 2016 listed
all three original specifications instead of the military judge’s
consolidated specification and does not otherwise reflect the
consolidation of the three specifications.
   The appellant now asserts that this error demonstrated a
misunderstanding by the CA as to the degree of the appellant’s
criminality and thereby prejudiced the appellant’s clemency request.
We agree there was error, but find that it did not materially prejudice
the appellant.


   3   Record at 142.
   4   Id. at 143.

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   “What is substantially one transaction should not be made the basis
for an unreasonable multiplication of charges against one person.”
R.C.M. 307(c)(4). Unreasonable multiplication of charges is a concept
distinct from mulitiplicity. United States v. Quiroz, 55 M.J. 334, 337
(C.A.A.F. 2001). It “addresses those features of military law that
increase the potential for overreaching in the exercise of prosecutorial
discretion.” Id. The concept “may apply differently to findings than to
sentencing.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012).
    The appropriate remedy depends on the nature of the harm. Id.
(citing Quiroz, 55 M.J. at 339). If the military judge finds unreasonable
multiplication of charges as applied to the sentence, the military judge
may merge offenses only for purposes of sentencing. United States v.
Thomas, 74 M.J. 563, 568 (N-M. Ct. Crim. App. 2014) (citing Campbell,
71 M.J. at 25).
    However, “[w]hen a military judge is presented with findings that
reflect an unreasonable multiplication of charges that cannot be
adequately addressed by merging the charges for sentencing purposes,
the military judge must then decide whether to consolidate or dismiss
the affected specifications.” Id.
        Consolidation is accomplished by simply combining the
        operative language from each specification into a single
        specification that adequately reflects each conviction.
               When consolidation is impracticable, such as when
        the guilty findings involve violations of different UCMJ
        articles, military judges should consider a conditional
        dismissal of one or more findings. Conditional dismissals
        “become effective when direct review becomes final in the
        manner described in Article 71(c), UCMJ” and therefore
        “protect the interests of the Government in the event that
        the remaining charge is dismissed during [appellate]
        review.”
Id. at 569 (quoting United States v. Britton, 47 M.J. 195, 203-05
(C.A.A.F. 1997) (Effron, J., concurring) (alteration in original).5
  While he initially considered merging Specifications 1, 2, and 3 of
Charge III for sentencing only, the military judge eventually


    5 See, e.g. United States v. Parker, 75 M.J. 603 (N-M. Ct. Crim. App. 2016)

(reviving the conditionally dismissed sexual assault conviction after finding the rape
conviction factually and legally insufficient), rev. denied, 75 M.J. 342 (C.A.A.F. 2016).



                                           4
consolidated the three specifications, combining the operative language
from each specification into a single specification that adequately
reflected each offense. The military judge read the consolidated
specification into the record and ordered the consolidated specification
be reflected in the RROT. As the chosen remedy, the consolidated
specification should have been reflected in the CMO as well. R.C.M.
1114(c)(1) (stating that the CMO must set forth “the charges and
specifications, or a summary thereof, on which the accused was
arraigned; the accused’s pleas; [and] the findings or other disposition of
each charge and specification”).6
   Having found error in the CMO, we next determine whether the
error prejudiced the appellant. “When assessing prejudice for post-trial
error in SJARs and CMOs, courts only require the appellant make
‘some colorable showing of possible prejudice.’” United States v.
Stevens, 75 M.J. 548, 552 (N-M. Ct. Crim. App. 2015) (quoting United
States v. Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)). We find the
appellant has not met this low threshold.
   Just as in Stevens, the three specifications erroneously listed in the
CMO here make clear the conduct alleged involved the same victim at
the same location on the same date. 75 M.J. at 551-52. The CMO
indicates the CA considered the record of trial and the RROT, which
each reflect the consolidated specficiation in some manner.
Additionally, similar to Stevens, who received “a highly favorable
[PTA] that suspended all confinement and forfeitures” prior to the
error in the CMO, the CA and the appellant here previously agreed
upon a favorable PTA that suspended the bad-conduct discharge. Id. at
552.7 Under these circumstances, we find no colorable showing of
possible prejudice merely because the CMO failed to correctly record
the consolidated specification.
    Nevertheless, the appellant is entitled to have the CMO accurately
reflect the results of the proceedings. Id. (citing United States v.
Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). We thus order
corrective action in our decretal paragraph.


   6See e.g. United States v. Nelms, No. 201400369, 2016 CCA LEXIS 227, at *17,
unpublished op. (N-M. Ct. Crim. App. 14 Apr 2016).
   7  See also United States v. White, No. 9900662, 2002 CCA LEXIS 50, at *23,
unpublished op. (N-M. Ct. Crim. App. 5 Mar 2002) (finding no prejudice in the face of
erroneously reported CMO findings because the appellant was sentenced to
confinement for 90 days when the maximimum sentence to confinement was over 16
years).

                                         5
B. The vacation hearing
    The appellant’s PTA provided, in part, that any adjudged punitive
discharge would be suspended until the appellant’s end of obligated
service (EAOS), at which time, unless sooner vacated, the suspended
discharge would be remitted without further action.8 The PTA also
stated that should the appellant commit any misconduct after the date
of the CA’s action, the CA could, after complying with the procedures
set forth in R.C.M. 1109, vacate any periods of suspension agreed to in
the PTA.
    On 17 April 2016, the appellant was arrested by civilian authorities
for assaulting K.R. On 27 April 2016, the cognizant SPCMCA provided
written notice to the appellant that a hearing would be conducted to
determine whether the 17 April incident warranted vacating the
suspension of his bad-conduct discharge. The hearing was scheduled
for two days later.
   In addition to informing the appellant of his rights at the hearing,
the notification provided this background on the underlying
misconduct triggering review:
       On 17 April 2016, you were arrested by the Lower Saucon
       Township Police Department and charged with
       aggravated assault, unlawful restraint, attempted simple
       assault, reckless endangerment, and harassment of
       [K.R.].9
   The SPCMCA, serving as hearing officer, convened the vacation
hearing on 29 April 2016. The appellant was represented by his trial
defense counsel, and the entire hearing lasted 65 minutes.
    At the opening, the hearing officer advised the appellant that he
was accused of aggravated assault, unlawful restraint, attempted
simple assault, reckless endangerment, and harassment, which, if
true, would violate his pretrial agreement. As proof, counsel
representing the government presented the telephonic testimony of the
civilian police officer who responded to the scene and four exhibits: the
notification of vacation hearing; the PTA; the RROT and CMO from



   8 Without accounting for potential periods of tolling that may have occurred after
the CA’s action, the appellant’s original EAOS was 23 September 2016. Appellate
Exhibit V.
   9Appellee’s Motion to Attach Vacation Hearing Documents of 19 May 2016,
Appendix 1 [herineafter Motion to Attach] at 10.

                                          6
the appellant’s court-martial; and a Lower Saucon Police Department
criminal complaint.10
    Following the hearing, the hearing officer completed DD Form 455,
“Report of Proceedings to Vacate Suspension of a Special Court-Martial
Sentence including a Bad-Conduct Discharge.” Although not submitted
as an exhibit during the hearing, in Block 4 of this form, the hearing
officer listed “MPO of 17 Dec 15” as a supporting document.11
    Similarly, while not raised in the hearing notice or in the hearing
officer’s opening advisement, in Block 5, “alleged violation(s) of
conditions of suspension,” the hearing officer wrote that the appellant
“violated the terms of his pre-trial agreement (PTA) by his misconduct
of being arrested and charged with aggravated assault, unlawful
restraint, simple assault, reckless endangerment, and harassment. He
also violated a military protective order.”12
   The hearing officer further remarked:
             The evidence clearly demonstrated that [the appellant]
         violated the terms of his PTA. After reviewing the police
         report, the MPO issued after his court-martial, and taking
         the testimony of the arresting police officer, I determined
         that [the appellant] committed misconduct. He assaulted
         the same person he victimized before his court-martial
         and violated a MPO. There simply is no excuse for his
         conduct. I strongly recommend that the suspended portion
         of [the appellant’s] punishment be vacated.13
    The report was forwarded to the GCMCA, who concurred with the
hearing officer’s recommendation and vacated the appellant’s
suspended discharge on 11 May 2016. In doing so, the GCMCA stated
that he relied on the record of the vacation hearing proceedings with
all exhibits and the recommendation of the hearing officer. He further
explained:




   10  Defense counsel objected to the criminal complaint on the basis it was
cumulative to the police officer’s testimony. The hearing officer accepted the report
over this objection. Likewise, K.R. did not testify at the hearing but was instead
declared unavailable for the hearing over defense counsel’s objection.
   11   Motion to Attach at 43.
   12   Id. (emphasis added).
   13   Motion to Attach at 45.

                                         7
         “After reviewing the Record of Proceedings, all exhibits
         submitted by the government representative and
         probationer’s counsel, and the recommendation of [the
         hearing officer], I find that [the appellant] committed
         misconduct. [The appellant] was arrested, and is
         currently incarcerated, for assaulting the same victim of
         his special court-martial. This misconduct is in clear
         violation of his pretrial agreement. The bad conduct
         discharge is appropriate.”14
   The appellant now contends the vacation hearing failed to provide
him with due process. We agree and set aside the vacation of the
appellant’s suspended discharge.
   Article 72, UCMJ, requires a hearing before the vacation of the
suspension of any special court-martial sentence that includes a bad-
conduct discharge. Such hearings, referred to as vacation hearings, are
conducted in accordance with R.C.M. 1109.15
   Article 72, UCMJ, and R.C.M. 1109 are designed to “provide[] the
accused the fundamental due process protections required in probation
revocation hearings, as set forth by the Supreme Court in Gagnon v.
Scarpelli, 411 U.S. 778 . . . (1973) and Morrissey v. Brewer, 408 U.S.
471 . . . (1972).” United States v. Englert, 42 M.J. 827, 830 (N-M. Ct.
Crim. App. 1995) (citing United States v. Bingham, 3 M.J. 119, 121
(C.M.A. 1977)).16




   14   Motion to Attach at 46.
   15  Vacation hearings held pursuant to R.C.M. 1109 incorporate notice, witness
and evidence procedures provided by R.C.M. 405, a rule otherwise applicable to
Article 32, UCMJ, preliminary hearings. The appellant’s vacation hearing was held
on 29 April 2016. Thus, the hearing was conducted in accordance with R.C.M. 1109
as modified on 17 June 2015 by Executive Order (EO) 13696. 80 Fed. Reg. 35,787 (
June 22, 2015). EO 13696 substantially overhauled R.C.M. 405, thereby changing
vacation hearing procedures. Subsequent to the appellant’s vacation hearing, and
therefore not applicable here, vacation hearing procedures were again modified on 20
May 2016 by EO 13730. 81 Fed. Reg. 33,334 (May 26, 2016). The appellant’s brief
bases its due process arguments on the original version of R.C.M. 405—no longer in
effect at the time of appellant’s vacation hearing. Regardless, R.C.M. 405(d) as
incorporated by R.C.M. 1109, on which we base our analysis, remained largely the
same through all iterations of the rule.
   16 See also United States v. Suttle, No. NMCCA 201100030, 2011 CCA LEXIS
178, unpublished op. (N-M Ct. Crim. App. 31 Oct. 2011).

                                         8
   The Supreme Court has held that due process requires, in part,
“written notice of the claimed violations of parole” and “disclosure to
the parolee of evidence against him[.]” Morrissey, 408 U.S. at 489.17
This is reflected in R.C.M. 1109(d)(1)(B)(iii), which requires that before
a vacation hearing, “the officer conducting the hearing shall cause the
probationer to be notified in writing of . . . alleged violation(s) of the
conditions of suspension and the evidence expected to be relied on[.]”
The notice requirement is based in the notion that “the liberty of a
parolee, although indeterminate, includes many of the core values of
unqualified liberty and its termination inflicts a ‘grievous loss’ on the
parolee and often on others.” Id. at 482.
   We review vacation proceedings to ensure compliance with
fundamental due process protections.18
   Here, the hearing officer considered an MPO issued to the appellant
on 17 December 2015 as evidence of the appellant’s violation of the
conditions of his suspension.19 However, the alleged MPO violation was
not included in the notice of the hearing, in the hearing officer’s verbal
advisement at the hearing, or as an exhibit presented by Government
counsel during the hearing. Only passing reference was made to the
MPO in the summarized record of the hearing, and the MPO was not
included in the exhibits attached to the DD Form 455. It remains
unclear from the record whether the MPO was even applicable on 17
April 2016, the date of the alleged violation.
   The hearing officer prominently listed the MPO violation as one of
the breaches of the appellant’s conditions of suspension, and he made
clear that he gave weight to the MPO violation when recommending
the appellant’s sentence be vacated. This matter was then considered
by the GCMCA in arriving at a final adverse determination.




   17 See Bingham, 3 M.J. at 120-21 (applying this requirement to military vacation
hearings).
   18 See United States v. Miley, 59 M.J. 300 (C.A.A.F. 2004) (setting aside the
determination of a vacation hearing based on a failure to comply with R.C.M. 1109
procedures).
   19 The date of the MPO is mere conjecture based solely on its mention in Block 4
of the hearing officer’s report. This reference implies the hearing officer had some
knowledge of the MPO, but where that knowledge came from remains inscrutable
from the record.



                                         9
    While the facts necessary to prove the assault allegations and MPO
allegation overlap, the two offenses are sufficiently distinct such that
being notified of the assault allegations did not provide the appellant
constructive notice of the MPO allegation. Without proper notice, the
appellant was not given the opportunity to prepare for or present a
defense to the MPO violation. The omission of notice regarding the
alleged MPO violation was in clear contravention of R.C.M.
1109(d)(1)(B)(iii), and the minimum requirements of due process as set
out by the Supreme Court in Morrissey and C.A.A.F. in Bingham.
   Under these circumstances, we find that the vacation of the
appellant’s bad-conduct discharge suspension was substantively
invalid because it was premised on an improperly conducted hearing.
As this was a structural error, further analysis for prejudice would be
inappropriate.20 Therefore, the vacation will be set aside.
C. Evidence of prior misconduct at presentencing
   During the presentencing phase of trial, the military judge
admitted Prosecution Exhibits 2 and 8 without defense objection.
Prosecution Exhibit 2 included a statement by K.R. that “there have
been assaults in the past that have not been reported,” and that when
she and the appellant “were in Indiana [the appellant] beat the f[***]
out of me.”21 Prosecution Exhibit 8 included information regarding a
prior, civilian domestic violence charge that was dismissed over a year
before trial.
   The appellant now asserts it was plain error for the military judge
to admit Prosecution Exhibits 2 and 8 under R.C.M. 1001(b) because
the exhibits contained evidence of uncharged misconduct and criminal
charges dismissed prior to conviction.
    As indentified by the appellant in his brief, we review the military
judge’s decision to admit evidence when the appellant does not object
at trial for plain error. United States v. Ramirez, No. 200800055, 2009
CCA LEXIS 453, at *7 unpublished op., (N-M. Ct. Crim. App. 17 Dec.
2009) (citing United States v. Powell, 49 M.J. 460, 463-65 (C.A.A.F.
1998)). In order to prevail on a claim of plain error, an appellant must



    20 See Miley, 59 M.J. at 304-05 (declining to test for prejudice before setting aside

the vacation of a suspended sentence because “we will not speculate as to what
decision the GCMCA may have made if the SPCMCA had properly” followed the
procedures in R.C.M. 1109).

    21   Prosecution Exhibit 2 at 7.

                                           10
persuade the court that: (1) an error was committed; (2) the error was
clear or obvious; and (3) the error resulted in material prejudice to a
substantial right of the appellant. Id. at *7-8 (citation omitted).
   Because the appellant’s court-martial was by military judge alone,
he faces “a particularly high hurdle.” Id. at *8. Military judges are
presumed capable of filtering inadmissible evidence, to know and apply
the law correctly, and not to rely on inadmissible evidence. Id.22
    Here, the appellant is unable to leap that particularly high hurdle.
Assuming without deciding that the exhibits contained improper
aggravation evidence, we are confident the admission of this evidence
did not alter the appellant’s sentence or result in any other material
prejudice to the appellant’s substantial rights. It thus did not amount
to plain error.
                               III. CONCLUSION
    The findings and sentence, as approved by the CA, are affirmed.
The supplemental court-martial promulgating order shall correctly
reflect that Specifications 1-3 of Charge III were consolidated by the
military judge and that the appellant was found guilty of the following
consolidated Specification 1 of Charge III, as follows:
         In that Chief Air Controller Jeremy E. Hassett, U.S.
         Navy,     Navy     Recruiting    District,   Philadelphia,
         Pennsylvania, on active duty, did at or near 4200 South
         Lake Mary Road, Flagstaff, Arizona, on or about 14
         March 2015, unlawfully grab the hair of K.R. with whom
         he cohabitated as a person similarly situated to a spouse
         and drag her across the ground with his hand, unlawfully
         strike the body of K.R. with a softball bag multiple times
         and unlawfully strike K.R. in the face by slapping her
         with an open palm.23
We set aside the action of the GCMCA in vacating the suspension of
the sentence to a bad-conduct discharge. The record of trial is returned




     22 In Ramirez, this court found that evidence of the appellant’s pre-service

marijuana use was insufficiently “related in time, type, or outcome to the convicted
crime to qualify as proper evidence in aggravation.” 2009 CCA LEXIS 453, at *8
(citing United States v. Hardison, 64 M.J. 279, 281-82 (C.A.A.F. 2007)). Regardless,
utilizing the standard applied to military judge-alone proceedings, we found that
admission of pre-service drug use did not rise to the level of plain error. Id.
   23   Record at 142-43.

                                        11
to the Judge Advocate General for action consistent with this opinion.
   Senior Judge CAMPBELL and Judge GROHARING concur.

                                    For the Court



                                    R.H. TROIDL
                                    Clerk of Court




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