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

                              No. 201600210
                          _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.
                      BRANDON M. KOLWYCK
                    Corporal (E-4), U.S. Marine Corps
                               Appellant
                        _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

            Military Judge: Major Mark Sameit, USMC.
      For Appellant: Commander R.D Evans, JR., JAGC, USN.
  For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC,
               USN; Captain Sean M. Monks, USMC.
                      _________________________

                        Decided 15 December 2016
                         _________________________

Before C AMPBELL , R UGH , and H UTCHISON , 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 general court-martial convicted the
appellant, pursuant to his pleas, of one specification of assault with intent to
inflict grievous bodily harm and one specification of assault with a means or
force likely to produce death or grievous bodily harm in violation of Article
128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928. The military
judge sentenced the appellant to 14 months’ confinement and a bad-conduct
discharge. The convening authority (CA) approved the sentence as adjudged.
   The appellant now raises as error that he was subjected to an
unreasonable multiplication of charges as applied to sentencing. We agree
                       United States v. Kolwyck, No. 201600210


and analyze for sentence reassessment below. 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
   On 14 November 2015, the appellant resolved a domestic dispute with his
wife by punching her repeatedly in the face with his fists. He then “grabbed
her around the throat and moved her 180 degrees to the hallway wall. . . .
[and] then struck her three or four more times . . . .”1 He did this in their on-
base residence while his one-year-old daughter watched and his two-year-old
son slept downstairs.
    Although the entire assault lasted only a few minutes, the appellant’s
wife suffered a fracture to her left eye socket and spent several days in the
hospital. At trial, the appellant admitted that he punched his wife almost as
hard as he could, that he knew his punches might break bones in her face,
and that he intended to inflict grievous bodily harm on his wife by punching
her. He also acknowledged that he squeezed his wife’s throat with sufficient
force that grievous bodily harm could have occurred.
    Prior to findings, defense counsel objected that the two specifications of
assault arising from the one violent altercation amounted to an unreasonable
multiplication of charges. The military judge disagreed, and, after identifying
the factors for assessing an unreasonable multiplication of charges provided
in United States v. Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001), determined:
         [T]hat these are distinctly separate acts that were charged in
         this case. There is a marked difference between punching
         someone in the face versus [strangling] somebody. Even though
         they occurred during the course of one fight, these are separate
         criminal acts that can be charged separately, and they both
         have their own unique risks to them.2
   On the matter of whether the two specifications unreasonably increased
the appellant’s punitive exposure, he explained:
         These are two separate crimes which have their own individual
         risks and Congress found the need to separate and charge both
         of these separately because of the separate risks. The President
         has assigned separate punishments to these two types of


   1   Record at 17.
   2   Id. at 29.



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                      United States v. Kolwyck, No. 201600210


         crimes that need to be prevented, and the [appellant] actually
         did assault two separate body parts of the victim in this case.3
   The military judge then denied the defense motion.
                                  II. DISCUSSION
A. Unreasonable multiplication of charges
    “What is substantially one transaction should not be made the basis for
an unreasonable multiplication of charges against one person.” RULE FOR
COURTS-MARTIAL (R.C.M.) 307(c)(4), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.). Unreasonable multiplication of charges is a concept
distinct from multiplicity. Quiroz, 55 M.J. at 337. It “addresses those features
of military law that increase the potential for overreaching in the exercise of
prosecutorial discretion.” Id.. A military judge’s unreasonable multiplication
of charges ruling is reviewed for an abuse of discretion. United States v.
Campbell, 71 M.J. 19, 22 (C.A.A.F. 2012).
    Charges may constitute unreasonable multiplication either as applied to
findings or as applied to sentencing. Id. at 23. We consider five non-exclusive
factors to determine whether there is an unreasonable multiplication of
charges:
              (1) Whether the appellant objected at trial;
            (2) Whether each charge and specification is aimed at distinctly
         separate criminal acts;
            (3) Whether the number of charges and specifications
         misrepresents or exaggerates the appellant’s criminality;
            (4) Whether the number of charges and specifications
         unreasonably increases the appellant’s punitive exposure; and,
            (5) Whether there is any evidence of prosecutorial overreaching or
         abuse in the drafting of the charges.
See Quiroz, 55 M.J. at 338-39.
   No one factor is a prerequisite. Instead, these factors are weighed
together, and “one or more. . . . may be sufficiently compelling[.]” Campbell,
71 M.J. at 23. While some factors may be most pertinent when assessing an
unreasonable multiplication of charges as to findings, others may only gain in
prominence when the assessment turns to an unreasonable multiplication of
charges as to sentence.4

   3   Id. at 30.
   4 The flavor of unreasonable multiplication raised, and thereby the nature of the
harm implicated, directly affects the remedy a military judge should craft. In cases in

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    Here, the appellant objected at trial. Additionally, the parties do not
allege prosecutorial overreaching or abuse in the drafting of the charges.5 The
military judge also fully developed on the record his reasons for denying the
appellant’s motion with regards to unreasonable multiplication of charges as
to findings—that the appellant striking his wife in the face with the intent to
cause grievous bodily harm and strangling her with a means likely to cause
grievous bodily harm constituted “two separate crimes which have their own
individual risks[.]”6
    As a result, we do not find, and the appellant does not allege, that the
military judge abused his discretion in balancing the Quiroz factors in
assessing for an unreasonable multiplication of charges as applied to
findings.
   However, we disagree with the military judge’s determination regarding
the unreasonable multiplication of charges as applied to sentencing,
particularly when weighing whether the charging scheme unreasonably
exaggerated the appellant’s criminality and increased his punitive exposure.



which there is an unreasonable multiplication of charges as to findings, the military
judge should ordinarily resolve the harm through consolidation of the specifications—
accomplished by “combining the operative language from each specification into a
single specification that adequately reflects each conviction.” United States v.
Thomas, 74 M.J. 563, 568-69 (N-M. Ct. Crim. App. 2014) (footnote omitted). When
consolidation is inappropriate, the military judge should consider conditionally
dismissing one or more of the findings, to become effective upon final appellate
review. Id. at 569. Consolidation or conditional dismissal should then be accurately
reflected in any subsequent CA’s action.
    In cases in which there is an unreasonable multiplication of charges as to
sentencing, the military judge should ordinarily resolve the harm through merging
the specifications for sentencing. In this situation, each affected specification
remains, but the maximum punishment available is reduced to that of the greatest
offense merged. In other words, the accused should be punished as if the affected
specifications or charges were but a single offense. The military judge should advise
members of the new, applicable maximum punishment and that the accused should
be sentenced as if the merged specifications were one. In the case of military judge-
alone sentencing, the military judge should announce on the record that the affected
specifications are being merged for sentencing and that the accused will be sentenced
on the affected specification as merged. The military judge should then inform the
accused of the new, applicable maximum punishment.
   5  At trial, just as now, the defense acknowledged that, “[T]here is[n’t] anything
that the prosecutor has done that is out of line in any way.” Record at 27.
   6   Id. at 30.



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    While the military judge’s “separate risks” analysis was preeminent in
determining whether each specification was aimed at distinctly separate
criminal acts and whether the sheer number of specifications misrepresented
the appellant’s criminality, its applicability in the context of the appellant’s
punitive exposure is less persuasive. Instead, generally “one act
implicating . . . separate criminal purposes” should be treated as one offense
for purposes of sentencing.7 Additionally, while both Articles 128(b)(1) and
128(b)(2), UCMJ,8 carry distinct maximum punishments—three years’ and
five years’ confinement, respectively—asserting this as grounds for denying
relief from an unreasonable multiplication of charges would devour the rule,
as every offense under the code comes with its own unique limits proscribed
by the President.9
    Though the abuse of discretion standard is “a strict one, calling for more
than a mere difference of opinion,” United States v. Lloyd, 69 M.J. 95, 99
(C.A.A.F. 2010) (citations and internal quotation marks omitted), under the
circumstances of this case, in which the two assaults arose from the same
altercation and occurred at the same time without interruption, it was
inappropriate to set the maximum punishment based on the aggregate of the
two offenses. Doing so unfairly exaggerated the appellant’s punitive exposure
and resulted in an unreasonable multiplication of charges as to sentencing.




   7   Campbell, 71 M.J. at 25 (finding that the military judge did not abuse his
discretion in merging three offenses into one for purposes of sentencing). See also
United States v. Jinetecabarcas, 2015 CCA LEXIS 122, *17 (A. Ct. Crim. App. 27 Mar
2015), (finding that “[b]ecause [the] appellant’s singular conduct . . . violated two
orders that were essentially the same order issued by two different officials, the
military judge appropriately merged these two specifications for sentencing
purposes.”) (citation and internal quotation marks omitted) (alteration in original),
rev. denied, 75 M.J. 11 (C.A.A.F. 2015); United States v. Parker, 2015 CCA LEXIS 9,
*14-16 (N-M. Ct. Crim. App. 22 Jan 2015) (upholding the military judge’s decision at
trial to merge sodomy and adultery offenses occurring with the same person at the
same time while not merging similar offense with a separate person occurring over
two separate time periods), rev. denied, 75 M.J. 16 (C.A.A.F. 2015). Cf. United States
v. Ryan, 2014 CCA LEXIS 217, *2, *8-9, unpublished op. (A. F. Ct. Crim. App. 28 Mar
2014) (finding the military judge did not abuse his discretion in declining to merge
specifications for drug possession and use, in part because the maximum punishment
was limited by referral to special court-martial).
   8 MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶¶ 54e(8)c
and 54e(9)c.
   9   See Art. 56, UCMJ.



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B. Sentence reassessment
    Having determined that the two specifications should have been merged
for sentencing, we must reassess the sentence. Courts of Criminal Appeals
(CCAs) can often “modify sentences ‘more expeditiously, more intelligently,
and more fairly’ than a new court-martial[.]” United States v. Winckelmann,
73 M.J. 11, 15 (C.A.A.F. 2013) (quoting Jackson v. Taylor, 353 U.S. 569, 580
(1957)). In such cases, CCAs “act with broad discretion when reassessing
sentences.” Id.
    Reassessing a sentence is only appropriate if we are able to reliably
determine that, absent the error, the sentence would have been at least of a
certain magnitude. United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000). A
reassessed sentence must not only “be purged of prejudicial error [but] also
must be ‘appropriate’ for the offense involved.” United States v. Sales, 22 M.J.
305, 308 (C.M.A. 1986).
   We base these determinations on the totality of the circumstances of each
case, guided by the following “illustrative, but not dispositive, points of
analysis”:
          (1) Whether there has been a dramatic change in the penalty
       landscape or exposure.
          (2) Whether sentencing was by members or a military judge alone.
           (3) Whether the nature of the remaining offenses captures the
       gravamen of criminal conduct included within the original offenses
       and whether significant or aggravating circumstances addressed at
       the court-martial remain admissible and relevant to the remaining
       offenses.
          (4) Whether the remaining offenses are of the type with which
       appellate judges should have the experience and familiarity to reliably
       determine what sentence would have been imposed at trial.
Winckelmann, 73 M.J. at 15-16.
    Under all the circumstances presented, we find that we can reassess the
sentence and that it is appropriate for us to do so. First, the merger of
specifications reduces the maximum authorized confinement from eight years
to five years, but the appellant was adjudged only 14 months’ confinement.
While the three years’ difference is significant, this does not represent a
dramatic change in the sentencing landscape given the adjudged sentence.
Second, the appellant elected to be sentenced by a military judge, and we are
more likely to be certain of what sentence the military judge, as opposed to
members, would have imposed. Third, we have extensive experience and
familiarity with the offenses as modified, as none presents a novel issue in

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aggravation. Finally, the modified offenses capture the gravamen of the
criminal conduct at issue, and all of the evidence remains admissible. Indeed,
the military judge sentenced the appellant based on evidence of the one
altercation.
    Taking these facts as a whole, we can confidently and reliably determine
that, absent the error, the military judge would have sentenced the appellant
to at least confinement for 14 months and a bad-conduct discharge. We also
conclude that the adjudged sentence is an appropriate punishment for the
modified offenses and this offender—thus satisfying the Sales requirement
that the reassessed sentence is not only purged of error, but is also
appropriate. Sales, 22 M.J. at 308.
                              III. CONCLUSION
   The findings and sentence, as approved by the CA, are affirmed.
   Senior Judge CAMPBELL and Judge HUTCHISON concur.


                                       For the Court



                                          R.H. TROIDL
                                          Clerk of Court




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