UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                              Before
                                    COOK, HAIGHT, and WEIS 1
                                     Appellate Military Judges

                                 UNITED STATES, Appellee
                                              v.
                                 Private E1 JOSE I. AYALA
                                United States Army, Appellant

                                        ARMY 20130610

               Headquarters, Joint Readiness Training Center and Fort Polk
                              Randall Fluke, Military Judge
                   Colonel Samuel A. Schubert, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Aaron R.
Inkenbrandt, JA; Captain Nicholas J. Larson, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major Daniel D. Derner, JA; Major A.G.
Courie III, JA; Captain James P. Curtin, JA (on brief).


                                           22 July 2015
                                    ---------------------------------
                                    MEMORANDUM OPINION
                                    ---------------------------------

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

COOK, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of attempting to remove property to prevent its seizure,
conspiracy to commit housebreaking, conspiracy to obstruct justice, failure to go to
place of duty (four specifications), willfully disobeying a noncommissioned officer,
false official statement (three specifications), wrongful possession of marijuana,
wrongful use of marijuana (two specifications), larceny (five specifications),
housebreaking (five specifications), obstructing justice, and soliciting another to
remove property to prevent its seizure, in violation of Articles 80, 81, 86, 91, 107,
112a, 121, 130, and 134, Uniform Code of Military Justice [hereinafter UCMJ],



1
    Judge WEIS took final action in this case while on active duty.
AYALA—ARMY 20130610

10 U.S.C. §§ 880, 881, 886, 891, 907, 912a, 921, 930, and 934 (2012). 2 The military
judge sentenced appellant to a bad-conduct discharge, confinement for nine years
and reduction to the grade of E-1. The convening authority, pursuant to a pretrial
agreement, only approved only so much of the sentence that included a bad-conduct
discharge, confinement for four months, and reduction to E-1.

      Appellant’s case is now pending review before this court pursuant to Article
66, UCMJ. Appellant raises numerous assignments of error, several of which merit
discussion and relief.

                                   BACKGROUND

       In addition to his wrongful possession and use of marijuana and his repeated
failures to report for duty, the gist of appellant’s misconduct involved: (1) reaching
an agreement with two soldiers to break into other soldiers’ rooms in order to steal
property; (2) repeatedly breaking into these rooms and stealing property; (3)
reaching an agreement with a co-conspirator to remove evidence of the crimes; and
(4) making false statements concerning his crimes. This misconduct generated seven
other charges and nineteen specifications.

                              LAW AND DISCUSSION

                     1. 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
307(c)(4). The prohibition against unreasonable multiplication of charges
“addresses those features of military law that increase the potential for overreaching
in the exercise of prosecutorial discretion.” United States v. Quiroz, 55 M.J. 334,
337 (C.A.A.F. 2001); see also United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F.
2012). In Quiroz, our superior court adopted five factors to guide our analysis of
whether charges have been unreasonably multiplied:

             (1) Did the accused object at trial that there was an
             unreasonable multiplication of charges and/or
             specifications?;

             (2) Is each charge and specification aimed at distinctly
             separate criminal acts?;


2
  A fifth specification of failure to go to place of duty was dismissed at trial. The
convening authority disapproved the findings of guilty to three of the larceny
specifications and dismissed those specifications, leaving two convictions for
larceny.


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             (3) Does the number of charges and specifications
             misrepresent or exaggerate the appellant’s criminality?;

             (4) Does the number of charges and specifications
             [unreasonably] increase the appellant’s punitive
             exposure?; and

             (5) Is there any evidence of prosecutorial overreaching or
             abuse in the drafting of the charges?

55 M.J. 338-39 (internal quotation marks and citation omitted).

 a. Attempt to Remove Property to Prevent its Seizure and Obstruction of Justice;
 Conspiracy to Obstruct Justice and Solicitation to Remove Property to Prevent its
                                     Seizure

        Appellant stands convicted of both an attempt to remove property to prevent
its seizure under Article 80, UCMJ, and obstruction of justice pursuant to Article
134, UCMJ for the same act—that is, a co-conspirator’s attempt to remove evidence
of stolen items from appellant’s room. Appellate defense counsel asserts that these
two convictions represent an unreasonable multiplication of charges (UMC). The
government concedes this point and recommends we set aside the conviction for the
Article 80 offense.

       While we accept this concession, we note that during the providence inquiry,
the military judge did not identify this specification as an attempt to remove
property to prevent its seizure, but rather as an offense alleging “attempted
obstruction of justice.” He thereafter covered elements applicable to both of these
underlying offenses enumerated in Article 134, UCMJ, but failed to list the terminal
element and failed to cover the terminal element with appellant during the
subsequent colloquy. This sequence of errors would have also led to our setting
aside and dismissing the conviction for attempted removal of property to prevent
seizure specification. See United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012);
United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011); United States v. Inabinette, 66
M.J. 320 (C.A.A.F. 2008).

       Appellant is also currently convicted of a conspiracy to obstruct justice and
solicitation to remove property to prevent its seizure for the identical act of directing
the same co-conspirator, Private (PVT) AC, to remove evidence from appellant’s
room. Appellate defense counsel claims that these two convictions represent a UMC
while the government contests this characterization. In deciding this issue in favor
of appellant we find the second, third and fifth Quiroz factors weigh heavily in his
favor.




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AYALA—ARMY 20130610

       Although appellant did not raise a UMC objection at trial and this additional
Article 134 offense did not unreasonably increase his punitive exposure, these
charges are aimed at the same criminal act and charging appellant twice for the exact
same misconduct exaggerates his criminality under these circumstances. To the
extent we have found three instances of UMC in appellant’s case, we also find that
the prosecution overreached in drafting this particular charge sheet. We address this
issue in our decretal paragraph by setting aside the finding and dismissing the
Article 134, UCMJ offense of soliciting another to remove property to prevent its
seizure.

              b. False Official Statements made at the same time to the same
                              Noncommissioned Officer

       As found in the stipulation of fact and adduced during the providence inquiry,
Specifications 1 and 2 of Charge VI allege two separate false statements made by
appellant’s accomplice, PVT AC, to Sergeant KF upon PVT AC being caught coming
out of appellant’s room. Government counsel concedes that these two false official
statements “were not distinct criminal acts for the purpose of [a] Quiroz analysis”
and recommends merging these two specifications for findings. We agree with
government counsel and will take appropriate action in our decretal paragraph.

  2. Adequacy of Providence Inquiry to Support Appellant’s Plea to Obstruction of
                                      Justice

       Appellate defense counsel challenges both Article 134, UCMJ, convictions,
alleging the military judge failed to elicit an adequate factual basis to support
appellant’s plea that his misconduct was either prejudicial to good order and
discipline or service discrediting. Because we have already disposed of one of these
specifications (the solicitation offense), we will limit our review to the remaining
Article 134 offense of obstruction of justice.

       “During a guilty plea inquiry the military judge is charged with determining
whether there is an adequate basis in law and fact to support the plea before
accepting it.” Inabinette, 66 M.J. 320, 321–22 (citing United States v. Prater, 32
M.J. 433, 436 (C.M.A. 1991)). “The providence of a plea is based not only on the
accused’s understanding and recitation of the factual history of the crime, but also
on an understanding of how the law relates to those facts.” United States v. Medina,
66 M.J. 21, 26 (C.A.A.F. 2008). We review a military judge’s decision to accept a
plea for an abuse of discretion by determining whether the record as a whole shows a
“substantial basis in law or fact for questioning the [guilty] plea.” United States v.
Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (citing Inabinette, 66 M.J. at 322.

     As we have recently noted in United States v. Knight, ARMY 20130432, 2015
CCA LEXIS (Army Ct. Crim. App. 17 June 2015) (summ. disp.), it can be tempting



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AYALA—ARMY 20130610

to simply acknowledge some misconduct is intuitively, inherently, or per se
prejudicial to good order and discipline or service discrediting. Appellate
government counsel basically advocates we adopt this approach. However, it is well
established that the terminal element “cannot be conclusively presumed from any
particular course of action,” even deplorable behavior such as that charged and
admitted to here. United States v. Phillips, 70 M.J. 161, 165 (C.A.A.F. 2011); see
also Fosler, 70 M.J. 225, 229-31 (determining that an accused cannot be convicted
under Article 134 only for committing the misconduct in question—that misconduct
must also be proven to satisfy the terminal element).

       While appellant agreed that his conduct of trying to impede an investigation
was prejudicial and discrediting, his “Yes, sir” response to a single “question[] put
to him as to whether his conduct was prejudicial to good order and discipline or
service discrediting” was a “‘mere conclusion[] of law recited by [him that is]
insufficient to provide a factual basis for a guilty plea.’” United States v. Jordan,
57 M.J. 236, 239 (C.A.A.F. 2002) (quoting United States v. Outhier, 45 M.J. 326,
331 (C.A.A.F. 1996)).

       In this case, the military judge did not elicit an adequate factual basis during
the colloquy with appellant to support his plea that his effort to obstruct justice was
either prejudicial to good order and discipline or service discrediting. The
stipulation of fact similarly fails to satisfy the providency requirement for either
clause of the terminal element. Compare United States v. Sweet, 42 M.J. 183, 185
(C.A.A.F. 1995).

      Therefore, on the record before us, we find a substantial basis in fact to
question appellant’s guilty plea to the Article 134 offense of obstruction of justice.

                                   CONCLUSION

       The findings of guilty of the Specification of Charge II and Charge II are set
aside, and that specification and charge are DISMISSED.

       The findings of guilty of Specifications 1 and 2 of Charge V and Charge V are
set aside and those specifications and charge are DISMISSED. Furthermore,
Specifications 1 and 2 of Charge VI are consolidated into a single amended
specification to read as follows:

             In that [Appellant], U.S. Army, did, at or near Fort Polk,
             Louisiana, on or about 28 December 2012, with the intent
             to deceive, make to Sergeant K.F., U.S. Army, an official
             statement, to wit: “the phones in the I-Phone box are mine,”
             or words to that effect, and “I am getting hair clippers that
             belong to me,” or words to that effect, in response to the



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AYALA—ARMY 20130610

             question, “what are you doing in this room,” which statement
             was totally false and was then known by [Appellant]
             to be so false.

The findings of guilty of this consolidated specification of Charge VI and Charge VI
are AFFIRMED. The finding of guilty of Specification 2, Charge VI is set aside and
that specification is DISMISSED.

      The remaining findings of guilty are AFFIRMED.

      We are able to reassess the sentence on the basis of the errors noted,
and do so after conducting a thorough analysis of the totality of circumstances
presented by appellant’s case and in accordance with the principles articulated by
our superior court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

       In evaluating the Winckelmann factors, we find no dramatic change in the
penalty landscape or exposure which might cause us pause in reassessing appellant’s
sentence. Second, the gravamen of appellant’s misconduct remains the same. In
addition, appellant was sentenced by a military judge and based on our experience
we are familiar with the remaining offenses so that we may reliably determine what
sentence would have been imposed at trial.

       After reassessing the sentence and the entire record, the sentence is
AFFIRMED. We find this reassessed sentence is not only purged of any error
but is also appropriate. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings set aside
by our decision, are ordered restored.

      Judge HAIGHT and Judge WEIS concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM
                                       MALCOLM H.  H. SQUIRES,
                                                      SQUIRES, JR.
                                                                JR.
                                       Clerk of Court
                                       Clerk of Court




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