UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           LIND, KRAUSS, and BORGERDING
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                  Private First Class JAMES D. SHEWMAKER
                         United States Army, Appellant

                                   ARMY 20130351

                     Headquarters, United States Army Alaska
                          David L. Conn, Military Judge
                   Colonel Tyler J. Harder, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Amy E. Nieman, JA; Lieutenant Colonel Charles C. Choi, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain T. Campbell Warner, JA (on brief).


                                      27 May 2014

                               ---------------------------------
                               SUMMARY DISPOSITION
                              ----------------------------------

LIND, Senior Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of twenty specifications of larceny of property of a value less
than $500.00 in violation of Article 121, Uniform Code of Military Justice,
10 U.S.C. § 921 (2013) [hereinafter UCMJ]. The military judge sentenced appellant
to a bad-conduct discharge, confinement for four months, forfeiture of $934.00 pay
per month for four months, and reduction to the grade of E-1. The convening
authority approved only so much of the sentence as provided for a bad-conduct
discharge, confinement for ninety days, forfeiture of $934.00 pay per month for four
months, and reduction to the grade of E-1. The convening authority also credited
appellant with five days against the sentence to confinement.

       This case is before the court for review under Article 66, UCMJ. Appellant
raises one assignment of error alleging that Specifications 13-19 of the Charge are
an unreasonable multiplication of charges for findings because the items charged in
SHEWMAKER— ARMY 20130351

these specifications were one larceny committed at substantially the same time and
place, and requests that this court dismiss those specifications “[g]iven that
appellant already served his confinement.” The government, citing United States v.
Gladue, 67 M.J. 311 (C.A.A.F. 2009), argues that this court should hold appellant to
his “waive any motions in this court-martial” clause in his pretrial agreement and
find appellant has waived the issue of unreasonable multiplication of charges. If we
decline to apply waiver, the government concedes that Specifications 13-19 of the
Charge arise out of a single larceny and constitute an unreasonable multiplication of
charges for findings, and asks us to merge Specifications 13-19 into Specification 13
and dismiss Specifications 14-19.

       We decline to enforce appellant’s waiver clause on the issue of unreasonable
multiplication of charges pursuant to our authority under Article 66(c), UCMJ. See
United States v. Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001) (citing United States
v. Claxton, 32 M.J. 159, 162 (C.M.A. 1991)); United States v. Powell, 49 M.J. 460,
464 (C.A.A.F. 1998). *

       Application of the Quiroz factors in this case weighs in favor of appellant.
See Quiroz, 55 M.J. at 338-39. We agree that Specifications 13-19 of the Charge
arise from a single larceny and that the specifications are an unreasonable
multiplication of charges for findings. See Manual for Courts-Martial, United
States (2012) ed., pt. IV, ¶ 46.(c)(1)(i)(ii) (“When a larceny of several articles is
committed at substantially the same time and place, it is a single larceny even
though the articles belong to different persons.”); see also United States v. Hines,
73 M.J. 119, 123 (C.A.A.F. 2014). However, we disagree that dismissal is the
appropriate remedy and will consolidate Specifications 13-19 of the Charge into one
specification.

      Specifications 13-19 of the Charge are consolidated into Specification 13 of
the Charge as follows:

             In that PFC James D. Shewmaker, U.S. Army, did, at or
             near Fort Wainwright, Alaska, between on or about
             1 September 2012 and on or about 12 January 2013, steal a
             Playstation Vita portable game system; a Playstation Vita
             All Star Battle Royal video game; a Playstation Vita Call
             of Duty: Roads to Victory video game; a Playstation Vita
             Gravity Rush video game; a Playstation Vita Assassin’s

*
 Appellant specifically waived a motion to suppress evidence and a motion to
suppress his statement in his pretrial agreement’s “waive any motions in this court-
martial” clause. Unreasonable multiplication of charges was not addressed in the
clause, nor was there any discussion of waiver of any motion regarding unreasonable
multiplication of charges between appellant and the military judge.


                                          2
SHEWMAKER— ARMY 20130351

             Creed III: Liberation video game; a Playstation Vita
             LEGO Batman 2 video game; and a Playstation Vita Need
             for Speed: Most Wanted video game, of a value of $500
             or less, the property of the Army and Air Force Exchange
             Service.

       The finding of guilty of Specification 13 of the Charge as consolidated is
AFFIRMED. The findings of guilty of Specifications 14-19 of the Charge are set
aside and dismissed. The remaining findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the error noted, the entire record,
and applying the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986) and the factors set forth in United States v. Winckelmann, 73 M.J. 11, 15-16
(C.A.A.F. 2013), we are confident the military judge would have adjudged the same
sentence.

       In evaluating the Winckelmann factors, there is no change in the penalty
landscape because appellant’s maximum punishment was capped at the jurisdictional
limit of a special court-martial: a bad-conduct discharge, confinement for one year,
forfeiture of two-thirds pay per month for twelve months, and reduction to the grade
of E-1. 73 M.J. at 15-16; UCMJ art. 19; Rule for Courts-Martial [hereinafter
R.C.M.] 201(f)(2)(B); R.C.M. 1003(b)(4). The gravamen of the offenses has not
changed and appellant remains convicted of all of the items originally charged.
Winckelmann, 73 M.J. at 16. Finally, this court reviews the records of a substantial
number of courts-martial involving larceny from the Army and Air Force Exchange
Service and we have extensive experience with the level of sentences imposed for
such offenses under various circumstances. Id.

       The sentence 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.

       Judge KRAUSS and Judge BORGERDING concur.

        
                                        FORTHE
                                       FOR  THECOURT:
                                                COURT:




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




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