UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          MULLIGAN, HERRING, and BURTON
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                       Private (E-2) JEFFERY D. JOHNSON
                           United States Army, Appellant

                                    ARMY 20140480

                          Headquarters, 7th Infantry Division
                  David L. Conn and Jeffery Lippert, Military Judges
              Lieutenant Colonel Michael S. Devine, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Amy E. Nieman,
JA; Captain Payum Doroodian, JA (on brief).

For Appellee: Colonel Mark. H. Sydenham, JA; Major A.G. Courie, III, JA; Major
John K. Choike, JA; Captain Robyn M. Chatwood, JA (on brief).


                                   16 December 2015

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of robbery, one specification of assault
consummated by a battery, one specification of assault with an unloaded firearm,
one specification of burglary, and one specification of obstruction of justice, in
violation of Articles 122, 128, 129, and 134 Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 922, 928, 929, 934 (2012). The military judge
sentenced appellant to a bad-conduct discharge, seven years confinement, total
forfeiture of pay and allowances, and reduction to the grade of E-1. In accordance
with the pretrial agreement, the convening authority approved only so much of the
sentence as provided for a bad-conduct discharge, confinement for five years, total
forfeiture of all pay and allowances, and reduction to the grade of E-1.

      Appellant’s case is before the court for review pursuant to Article 66, UCMJ.
Appellant raises two assignments of error, one of which merits discussion and
JOHNSON—ARMY 20140480

relief. The matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), are without merit.

                    Multiplicity and Lesser-Included Offenses:
                               Robbery and Assault

       Appellant pleaded guilty to robbery of NW by means of force and violence
and putting him in fear with a firearm (The Specification of Charge I). Appellant
also pleaded guilty to assault consummated by a battery by striking NW on the face
and head with his hand and foot (Specification 1 of Charge II), and assault with an
unloaded firearm by pointing it at NW (Specification 2 of Charge II). Appellant
now argues the military judge should have dismissed the assault specifications for
multiplicity as they are lesser-included offenses of the robbery as charged.

       At trial, the military judge’s solution was to “merge for sentencing” the
assault specifications with the robbery specification, because they are “part and
parcel” with the robbery by force and violence and with a firearm. The military
judge made his decision sua sponte at the close of the presentencing case on the
basis of unreasonable multiplication of charges. He did not address multiplicity.
“Offenses are multiplicious if one is a lesser-included offense of the other.” United
States v. Elespuru, 74 M.J. 326, 328 (C.A.A.F. 2014), quoting United States v. Leak,
61 M.J. 234, 248 (C.A.A.F. 2005). “As a matter of logic and law, if an offense is
multiplicious for sentencing it must necessarily be multiplicious for findings as
well.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012).

       Appellant’s pretrial agreement contained a provision that waived specific
motions, including “defenses or objections in the charges and specifications.” “A
waiver is an intentional relinquishment or abandonment of a known right or
privilege.” Elespuru, 74 M.J. at 328, quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938). “There is a presumption against the waiver of constitutional rights.”
Elespuru, 74 M.J. at 328, quoting Brookhart v. Janis, 384 U.S. 1, 4 (1966). An
“unauthorized conviction has ‘potential adverse consequences that may not be
ignored,’ and constitutes unauthorized punishment in and of itself.” United States v.
Savage, 50 M.J. 244, 245 (C.A.A.F. 1999), quoting Ball v. United States, 470 U.S.
856, 865 (1985).

       Without addressing whether appellant should have moved to dismiss for
multiplicity after the military judge “merged for sentencing,” we analyze the issue of
multiplicity for plain error. United States v. Barner, 56 M.J. 131 (C.A.A.F. 2002).
An appellant may demonstrate plain error by proving the offenses are “facially
duplicative.” United States v. St. John, 72 M.J. 685, 687 n.1 (Army. Ct. Crim. App.
2013).




                                          2
JOHNSON—ARMY 20140480

       “Facially duplicative” means the factual components of the charged offenses
are the same. Id. at 687 (citing Lloyd, 46 M.J. at 23). “Two offenses are not
facially duplicative if each ‘requires proof of a fact which the other does not.’”
United States v. Pauling, 60 M.J. 91, 94 (C.A.A.F. 2004) (quoting United States v.
Hudson, 59 M.J. 357, 359 (C.A.A.F. 2004)). This analysis does not solely involve a
“‘literal application of the elements test,’” but rather requires a “realistic
comparison of the two offenses to determine whether one is rationally derivative of
the other.” Pauling, 60 M.J. at 94, (quoting Hudson, 59 M.J. at 359). It “turns on
both the factual conduct alleged in each specification and the providence inquiry
conducted by the military judge at trial.” Pauling, 60 M.J. at 94 (quoting Hudson,
59 M.J. at 359) (internal quotation marks omitted). Consequently, where after
examination of these factors, an offense is a lesser-included offense of another, the
offenses are facially duplicative. See St. John, 72 M.J. at 688-89; see also United
States v. Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002). “Whether an offense is a
lesser-included offense is a matter of law” we review de novo. St. John, 72 M.J. at
687.

       We find these offenses as charged in this case are facially duplicative because
the conduct alleged in the assault specifications is the means by which appellant
committed the robbery. The providence inquiry established that appellant struck
NW in the face and head with his hands and foot on 28 January 2013, and appellant
or his accomplice pointed the unloaded firearm at NW. Such unlawful
persuasiveness caused NW to relinquish his property; and the military judge
convicted appellant of robbery by means of force and violence and placing NW in
fear with a firearm. Under the facts of this case, the assault consummated by a
battery and the assault with an unloaded firearm were lesser-included offenses of the
robbery as charged. “If the evidence shows that the force and violence is the means
for perpetrating the robbery is also the means by which grievous bodily harm is
inflicted, liability for the lesser-included offense will not lie.” United States v.
Szentmiklosi, 55 M.J. 487, 491 (CA.A.F. 2001) citing United States v. Walker, 25
C.M.R. 144, 147 (C.M.A. 1958).

                                   CONCLUSION

       The findings of guilty of Specifications 1 and 2 of Charge II and Charge II are
set aside. Specification 1 and 2 of Charge II and Charge II are dismissed. The
remaining findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of United States v. Sales, 22 M.J. 305, 307-08
(C.M.A. 1986) and 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
absent the errors noted as he limited appellant’s punitive expose by considering the
three offenses as one for sentencing purposes. The approved sentence is



                                          3
JOHNSON—ARMY 20140480

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
ordered restored.


                                        FORTHE
                                       FOR  THECOURT:
                                                COURT:




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




                                           4
