          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                           Airman First Class STEVEN C. DUNCAN
                                   United States Air Force

                                              ACM S32255

                                            27 January 2016

         Sentence adjudged 27 June 2014 by SPCM convened at Joint Base Pearl
         Harbor-Hickam, Hawaii. Military Judge: Ira Perkins (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 112 days, and
         reduction to E-l.

         Appellate Counsel for Appellant: Major Isaac C. Kennen.

         Appellate Counsel for the United States: Lieutenant Colonel Roberto
         Ramirez; Major Jason S. Osborne; and Gerald R. Bruce, Esquire.

                                                  Before

                                ALLRED, MITCHELL, and KIEFER
                                    Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



KIEFER, Judge:

       Pursuant to his pleas and a pretrial agreement, a military judge convicted
Appellant of wrongful use of cocaine, wrongful use of alprazolam and heroin on divers
occasions, and wrongful possession of heroin, all in violation of Article 112a, UCMJ, 10
U.S.C. § 912a. The military judge sentenced Appellant to a bad-conduct discharge,
confinement for 6 months, and reduction to E-1. As part of Appellant’s pretrial
agreement, he agreed to “waive all waivable motions” and his confinement was limited to
112 days.
                                       Background

       Appellant was admitted to Tripler Army Medical Center in Hawaii in December
2013. A blood sample was collected which tested positive for various controlled
substances. On multiple subsequent occasions, Appellant’s urine was collected and
tested positive for controlled substances. Appellant also made several statements
regarding his use of controlled substances. Additionally, following one of the positive
urinalysis tests, Air Force investigators conducted a search of Appellant’s dorm room and
found a piece of tin foil with a residue which tested positive for heroin.

       In his initial assignments of error, Appellant alleges that the convictions for
wrongful use and wrongful possession of heroin are multiplicious and violate his Fifth
Amendment* right against double jeopardy. Appellant also alleges that his sentence was
inappropriately severe. In supplemental assignments of error, Appellant alleges that this
court’s processing of his case requires relief under United States v. Moreno, 63 M.J. 129
(C.A.A.F. 2006), because he has not received timely appellate review, and as relief, he
requests this court set aside all of his convictions.

                                       Multiplicity

       Appellant argues that he was wrongfully convicted of both wrongful use of heroin
and wrongful possession of heroin in Specifications 3 and 4 of the Charge. Appellant
maintains that based on the facts of this case, these specifications were multiplicious and
therefore violated his Fifth Amendment right to protection from double jeopardy.*

        Appellant’s convictions were pursuant to a guilty plea and pretrial agreement. As
part of Appellant’s guilty plea inquiry, the military judge reviewed the terms of the
pretrial agreement. During this discussion, the military judge addressed a term in which
Appellant waived all waivable motions. Trial defense counsel expressly stated that the
defense had initiated this term and that one of the waived motions was a motion to
dismiss for unreasonable multiplication of charges. In response to further questioning by
the military judge, Appellant stated he understood the potential favorable results of the
waived motions, had no additional questions about this provision, and agreed to waive
the motions to receive the benefit of his pretrial agreement.

        In United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009), our superior court
held that a “waive all waivable motions” provision waived, rather than forfeited, a claim
of multiplicity on appeal, and therefore, the multiplicity claim was extinguished and
could not be raised on appeal. The court held multiplicity was waived because the
pretrial agreement required the appellant to waive all waivable motions, the military
judge conducted a thorough inquiry to ensure the appellant understood the effect of this

*
    U.S. CONST. amend V.


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provision, and the appellant explicitly indicated his understanding that he was waiving
the right to raise any waivable motion. Id. The court also stated the same position would
result for claims of unreasonable multiplication of charges raised on appeal. Id.

        When an appellant affirmatively waives or consents to the abandonment of a
multiplicity challenge, he is precluded from raising that claim on appeal. See United
States v. Lloyd, 46 M.J. 19, 21–22 (C.A.A.F. 1997). “Waiver is different from forfeiture.
Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the
‘intentional relinquishment or abandonment of a known right.’” United States v. Toro, 37
M.J. 313, 320 (C.M.A.1993) (Sullivan, C.J., concurring) (quoting United States v. Olano,
507 U.S. 725, 733 (1993)).

       We find that Appellant affirmatively waived the issues of both multiplicity and
unreasonable multiplication at trial. The defense initiated the “waive all waiveable
motions” provision at trial, and trial defense counsel expressly stated that a motion to
dismiss for unreasonable multiplication of charges was waived. See Lloyd, 46 M.J. at
21–22. Because we apply waiver, Appellant is not entitled to relief and no further
analysis is necessary.

                                     Sentence Severity

       Appellant also argues that his sentence is inappropriately severe. This court “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 review
sentence appropriateness de novo, employing “a sweeping congressional mandate to
ensure a fair and just punishment for every accused.” United States v. Baier, 60 M.J.
382, 384 (C.A.A.F. 2005) (quoting United States v. Bauerbach, 55 M.J. 501, 504 (Army
Ct. Crim. App. 2001)). “We assess sentence 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) (citing United States v. Snelling, 14 M.J. 267,
268 (C.M.A. 1982)). Although we are accorded great discretion in determining whether
a particular sentence is appropriate, we are not authorized to engage in exercises of
clemency. United States v. Nerad, 69 M.J. 138, 148 (C.A.A.F. 2010).

       The military judge convicted Appellant of wrongful use of cocaine, wrongful use
of alprazolam on divers occasions, wrongful use of heroin on divers occasions, and
wrongful possession of heroin. Given the forum of a special court-martial, Appellant
faced a maximum sentence of reduction to the grade of E-1, forfeiture of two-thirds pay
per month for 12 months, 12 months confinement, and a bad-conduct discharge.
Appellant’s pretrial agreement limited the period of confinement to 112 days, which he
had already served in pretrial confinement. The military judge sentenced Appellant to a


                                             3                                   ACM S32255
bad-conduct discharge, confinement for 6 months, and reduction to E-1. Pursuant to the
pretrial agreement, the convening authority limited the confinement to 112 days, but
otherwise approved the sentence as adjudged.

       We have reviewed the entire record of trial including all evidence in mitigation
and extenuation as well as evidence in aggravation. Based on the facts of this case,
including the nature of the offenses and appellant’s background, service record, and
character, there is nothing that indicates Appellant’s approved sentence was
inappropriately severe.

                                  Post-Trial Processing

        In the supplemental assignments of error permitted by this court, Appellant alleges
that he received untimely appellate review and his convictions pursuant to his pleas
should be set aside. Appellant acknowledges that the appellate process in this case is
within the standard set forth in Moreno and that he has suffered no prejudice other than
awaiting appellate review. See Moreno, 63 M.J. at 142 (applying a presumption of
unreasonable delay if appellate review is not completed within 18 months of docketing).
He nonetheless argues that this court has denied him proper appellate review and that he
is entitled to relief.

       Appellant advocates for a more stringent standard than that established by Moreno
without indicating what cases or circumstances should trigger this more stringent
standard, other than to suggest the instant case has a relatively short record of trial and
seemingly common issues. Appellant, however, fails to recognize the myriad of factors
that impact the appellate review process, not the least of which is a detailed and thorough
review of all issues submitted to this court. See id. at 137–38 (providing a more flexible
review of the time period of a court of criminal appeal’s decision because it involves the
exercise of judicial decision-making authority). Processing of appellate cases takes
varying lengths of time based on many circumstances, and we decline to establish or
apply a new standard more stringent than the one set forth in Moreno based on the facts
of this case. Consequently, given that this case was processed within the 18-month
standard, a Moreno analysis is neither required nor warranted in this instance. See id. at
136 (“[U]nless the delay is facially unreasonable, the full due process analysis will not be
triggered.”).

        We also decline to grant the relief requested of dismissal of all charges and
specifications. In the supplemental assignments of error, Appellant seeks dismissal based
exclusively on a perceived injustice in the appellate processing of his case, despite
compliance with the Moreno standard and effectively no alleged prejudice. Article
66(c), UCMJ, also empowers appellate courts to grant sentence relief for excessive post-
trial delay without the showing of actual prejudice required by Article 59(a), UCMJ, 10
U.S.C. § 859(a). United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002). We find the


                                             4                                   ACM S32255
time for the appellate review of this case, to include the supplemental assignment of
errors, was not excessive.

                                       Conclusion

       The 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) and 66(c),
UCMJ. Accordingly, the findings and the sentence are AFFIRMED.




             FOR THE COURT


             LEAH M. CALAHAN
             Clerk of the Court




                                            5                                  ACM S32255
