          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                        Master Sergeant HOLLY M. DICKINSON
                                 United States Air Force

                                            ACM S32134

                                       10 February 2014

         Sentence adjudged 23 January 2013 by SPCM convened at Mountain Home
         Air Force Base, ID. Military Judge: Martin T. Mitchell (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 183 days, and
         reduction to E-4.

         Appellate Counsel for the Appellant: Lieutenant Colonel Jane E. Boomer.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Major Brett D. Burton; and Gerald R. Bruce, Esquire.

                                                 Before

                          ROAN, SANTORO, and MARKSTEINER
                                Appellate Military Judges

                   This opinion is subject to editorial correction before final release.

PER CURIAM:

       A special court-martial composed of a military judge sitting alone convicted the
appellant, consistent with her pleas, of two specifications of making a false official
statement; one specification of wrongful possession of Meperidine (commonly known as
Demerol); one specification of larceny of Demerol; and one specification of larceny of
Nalbuphine (commonly known as Nubain), in violation of Articles 107, 112a, and 121,
UCMJ, 10 U.S.C. §§ 907, 912a, 921. The military judge sua sponte held that the two
false official statement specifications were an unreasonable multiplication of charges and
merged them for sentencing.

      The adjudged and approved sentence was a bad-conduct discharge, confinement
for 183 days, and reduction to E-4. Before us, the appellant asserts: (1) The military
judge abused his discretion in not sua sponte merging the specifications of larceny and
possession of Demerol for sentencing purposes; and (2) Her sentence is inappropriately
severe. We disagree and affirm.

                                                  Background

       The appellant, the non-commissioned officer in charge of the base pharmacy, stole
83 syringes of Demerol and Nubain, prescription pain medications, from the pharmacy on
39 different occasions. The military treatment facility where she worked used a Pyxis
machine to control the dispensing of medication. Without any lawful justification or
authorization, the appellant accessed the Pyxis machine using her hospital access badge
and fingerprint verification to steal and retain the drugs. On one occasion, her theft
depleted the entire supply of pain medication, leaving the treatment facility without
Demerol for several days. When Air Force Office of Special Investigations agents
interviewed her in connection with the missing drugs, she lied and told them she had not
been in the area and that she had been unable to access the Pyxis machine for weeks.

                                 Unreasonable Multiplication of Charges

        “What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges” against an accused. Rule for Courts-Martial
307(c)(4). The appellant unconditionally pled guilty to both the larceny and wrongful
possession of Demerol on divers occasions between the same range of dates. Although
the military judge did not specifically ask, the context of the appellant’s statements in her
Care1 inquiry make clear that she would often retain the Demerol she had stolen for later
use. The duration of her subsequent possessions was unstated, but included at least
several periods of time long enough for her to go from being sober, to being intoxicated,
to returning to sobriety.

        The appellant raises the issue of unreasonable multiplication of charges for the
first time on appeal. We hold that by not raising this issue at trial, the appellant has
forfeited her right to relief on appeal absent plain error. United States v. Gladue,
67 M.J. 311, 313 (C.A.A.F. 2009); United States v. Butcher, 56 M.J. 87, 93 (C.A.A.F.
2001). Plain error occurs when there is error, the error is plain or obvious, and the error
results in material prejudice to a substantial right of the appellant. United States v.
Maynard, 66 M.J. 242 (C.A.A.F. 2008). Here, we find no error, plain or otherwise. The
larceny and possession of the Demerol represent discrete offenses on the part of the
appellant. There was no requirement for the military judge to merge the two for
sentencing. Moreover, the military judge was cognizant of his authority under
United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001), to provide equitable relief
when he deemed it appropriate, as he raised the issue himself and exercised that very

1
    United States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969).


                                                         2                       ACM S32134
authority when he merged the false official statement specifications. Furthermore, after
the military judge first raised the issue, the trial defense counsel, citing the appropriate
legal standards, successfully argued for merger of the false official statement
specifications, but remained mute with regard to the specifications now challenged on
appeal. We find no error on the military judge’s part.

       The appellant has also failed to establish any material prejudice to a substantial
right. Even had the military judge granted the relief the appellant belatedly seeks, the
sentencing landscape in this judge-alone special court-martial and the evidence upon
which the military judge based his sentence would remain unchanged. We are convinced
the appellant would have received the same sentence even if the larceny and possession
charges had been merged for sentencing purposes.

                                Sentence Appropriateness

       The appellant next argues her sentence to a bad-conduct discharge was
inappropriately severe.      This Court reviews 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). “We assess sentence appropriateness by
considering the particular appellant, the nature and seriousness of the offenses, the
appellant’s record of service, and all matters contained in the record of trial.”
United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff’d sub nom.
Bare v. United States Air Force, 65 M.J. 35 (C.A.A.F. 2007).

       The appellant had approximately 16 1/2 years of service at the time of her
offenses, a strong duty performance history, and attributed her criminal conduct to bad
judgment in the midst of separation from her family. However, while we have a great
deal of discretion in determining whether a particular sentence is appropriate,
United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999), we are not authorized to engage
in exercises of clemency. United States v. Healy, 26 M.J. 394, 395-96 (C.M.A. 1988).
The approved sentence was clearly within the discretion of the convening authority and
was appropriate in this case. Accordingly, we hold that the approved sentence is not
inappropriately severe for a senior non-commissioned officer who, taking advantage of
her duty position and knowledge of a system designed to keep controlled substances
secure, on multiple occasions stole drugs from an Air Force military treatment facility
and then lied about her conduct.

                                        Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)


                                             3                                   ACM S32134
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). Accordingly, the approved findings and the sentence are

                                   AFFIRMED.



            FOR THE COURT


            STEVEN LUCAS
            Clerk of the Court




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