UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         KERN, MORAN, and ALDYKIEWICZ
                             Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                        Specialist MICHAEL V. FRANZA
                         United States Army, Appellant

                                  ARMY 20130813

                           Headquarters, Fort Campbell
                        Steven E. Walburn, Military Judge
          Lieutenant Colonel Sebastian A. Edwards, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Captain Patrick J. Scudieri, JA.

For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed.


                                     19 May 2014

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                              SUMMARY DISPOSITION
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Per curiam:

       Upon review of the entire record pursuant to Article 66(c), UCMJ, we note
that appellant was charged with and pleaded guilty to both wrongfully distributing
and possessing a controlled substance (Specifications 1 and 2 of Charge II,
respectively). The distribution and possession were both alleged to have occurred
on the same day. Appellant distributed all of this particular controlled substance
that he possessed, and the record does not reflect that appellant possessed this
controlled substance for any substantial amount of time between acquiring and
distributing it. Given the pleadings and the lack of any contrary evidence in the
record, we conclude that appellant’s possession of this controlled substance is
multiplicious with the distribution. Cf. United States v. Zubko, 18 M.J. 378, 386
(C.M.A. 1984) (“The elements of this possession offense were necessarily included
within the elements of proof for this distribution offense.”); United States v.
Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002) (“Offenses are multiplicious if one is a
lesser-included offense of the other.”). Although we set aside this conviction for
wrongfully possessing a controlled substance, our holding does not affect the
sentence. The penalty landscape at this special court-martial has not changed, and
FRANZA—ARMY 20130813

the admissible aggravation evidence remains the same as well. * See United States v.
Winckelmann, 73 M.J. 11 (C.A.A.F. 2013); United States v. Sales, 22 M.J. 305
(C.M.A. 1986).

       Accordingly, the finding of guilty of Specification 2 of Charge II is set aside,
and that specification is dismissed. The remaining findings of guilty are
AFFIRMED. Considering the modified findings, we find the sentence as approved
by the convening authority is appropriate and is AFFIRMED. All rights, privileges,
and property, of which appellant has been deprived by virtue of that portion of the
findings set aside by this decision, are hereby ordered restored.


                                        FOR THE COURT:
                                       FOR THE COURT:




                                        MALCOLMH.
                                       MALCOLM       H.SQUIRES,
                                                        SQUIRES,JR.
                                                                 JR.
                                        ClerkofofCourt
                                       Clerk      Court




*
  Although appellant stipulated as a matter of fact that these offenses were neither
multiplicious nor an unreasonable multiplication of charges, this stipulation was not
further developed on the record. Under the circumstances, we do not conclude that
this stipulation constituted an affirmative waiver of a multiplicity claim.


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