UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                HAIGHT, PENLAND, and WOLFE
                                   Appellate Military Judges

                                UNITED STATES, Appellee
                                             v.
                               Specialist SHAWN C. CLARK
                               United States Army, Appellant

                                        ARMY 20140252

                        Headquarters, United States Army Alaska
                                Kurt Bohn, Military Judge
                     Colonel Tyler J. Harder, Staff Judge Advocate
                 Colonel Erik L. Christiansen, Staff Judge Advocate (post

For Appellant: Lieutenant Colonel Charles A. Lozano, JA; Major Aaron R.
Inkenbrandt, JA; Captain Jennifer K. Beerman, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Timothy C. Donahue, JA (on brief).

                                           31 May 2016
                                   ----------------------------------
                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

      A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of attempted rape, attempted kidnapping, disrespect toward a
noncommissioned officer, failure to obey an order, four specifications of assault
consummated by battery, 1 one specification of assault with a dangerous weapon, and

1
  Specification 5 of Charge III alleged that appellant cut the victim on the hand with
a “dangerous weapon, to wit: a handheld edged weapon.” On appeal, both parties
appear to treat this as an aggravated assault. However, the specification does not
allege that the handheld edged weapon (commonly referred to as a “knife”) was used
in a manner likely to cause death or grievous bodily harm, nor does it allege that a
“deep cut” was intentionally inflicted. See Manual for Courts-Martial, United
States (2012 ed.), ¶54.c.(4)(a),(b). Additionally, the parties at trial, and the military
judge during the providence inquiry, treated this specification as an assault
consummated by battery.
CLARK — ARMY 20140252

burglary with intent to commit rape, in violation of Articles 80, 91, 92, 128, and 129
of the Uniform Code of Military Justice, 10 U.S.C. §§ 880, 891, 892, 928, and 929
[hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable
discharge, confinement for nine years, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved the adjudged
sentence.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two issues, both of which we find do not merit relief. 2 We do address one of
the issues raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). The remaining matters personally raised by appellant are without
merit.
                                    BACKGROUND

       In the early morning hours of 30 August 2013, appellant, dressed all in black,
wearing gloves, armed with a knife, and with a bandana covering his face, went to
Private First Class (PFC) TB’s barracks room and knocked on the door. As PFC TB
unlocked her door and started to open it, appellant shoved the door open, forcing
PFC TB backwards. Upon pushing his way through the door, appellant pushed PFC
TB further backwards and then “grabbed her by her arms in order to control her.”

       Appellant intended to rape PFC TB and during the attack, in order to scare his
victim, he “displayed” a knife. During the struggle, PFC TB grabbed the knife and
cut her hand.

       Appellant stands convicted of four different assaults consummated by battery:
one for hitting PFC TB with the door, one for pushing PFC TB, one for grabbing
PFC TB once he was inside her room, and one for cutting her hand when she grabbed
the knife. Furthermore, appellant stands convicted of one specification of
aggravated assault for displaying the knife. Appellant personally asserts that the
assaults “stem from a continuous course of conduct” and that “[e]ach specification
flows into the next.”




2
  Appellant assigns as error that the military judge used an outdated definition of
“force” when explaining the offense of rape to appellant during the providence
inquiry. Regardless of the military judge’s description of the unlawful force
required, after careful review of the record of trial and the stipulation of fact, we
find that appellant knew and understood the elements, admitted them freely, and
pleaded guilty because he was guilty. See United States v. Redlinski, 58 M.J. 117
(C.A.A.F. 2003).
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CLARK — ARMY 20140252

                             LAW AND DISCUSSION

       Our superior court has repeatedly held that individual assaults within an
uninterrupted scuffle should not be parsed out and made the bases for separate
findings of guilty. See United States v. Flynn, 28 M.J. 218 (C.M.A. 1989); see also
United States v. Morris, 18 M.J. 450 (C.M.A. 1984); United States v. Rushing, 11
M.J. 95 (C.M.A. 1981). Similarly, we held last year that merger of specifications is
appropriate in instances of an ongoing attack comprising multiple assaults “united in
time, circumstance, and impulse.” United States v. Clarke, 74 M.J. 627, 628 (Army
Ct. Crim. App. 2015) (quoting Rushing, 11 M.J. at 98).

       Nonetheless, we find that appellant has forfeited and waived his entitlement to
any relief. “A criminal defendant may knowingly and voluntarily waive many of the
most fundamental protections afforded by the Constitution.” United States v.
Mezzanatto, 513 U.S. 196, 201 (1995). Such waiver may include “double jeopardy.”
United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009). We find waiver for two
separate but related reasons.

       First, appellant pleaded guilty to these offenses. “An unconditional guilty
plea generally waives all defects which are neither jurisdictional nor a deprivation of
due process of law.” United States v. Schweitzer, 68 M.J. 133, 136 (C.A.A.F. 2009)
(citation and internal quotations marks omitted). “By pleading guilty, an accused
does more than admit that he did the various acts alleged in a specification; ‘he is
admitting guilt of a substantive crime.’” United States v. Campbell, 68 M.J. 217, 219
(C.A.A.F. 2009) (citing United States v. Broce, 488 U.S. 563, 570 (1989)).

        Second, as part of his pretrial agreement, appellant affirmatively waived “all
waivable motions” and specifically agreed to waive motions regarding unreasonable
multiplication of charges and multiplicity. “When . . . an appellant intentionally
waives a known right at trial, it is extinguished and may not be raised on appeal.”
Gladue, 67 M.J. at 313. Even in cases where the specifications are facially
duplicative, “[e]xpress waiver or voluntary consent . . . will foreclose even this
limited form of inquiry.” United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F. 1997).
Accordingly, while concerns regarding the units of prosecution in this case exist,
relief is not required for this waived issue.

       Of course, this court may notice waived and forfeited error, and may approve
only those findings that “should be approved.” United States v. Nerad, 69 M.J. 138,
141-42, 146-47 (C.A.A.F. 2010). This is an “awesome, plenary de novo power of
review,” but one that is also subject to “discretion.” Id. at 144-45 (citations and
internal quotation marks omitted). It is only in whether to exercise this
discretionary power that we depart from our dissenting colleague.

      Appellant specifically agreed to plead guilty to these offenses as part of a
negotiated agreement. Appellant further specifically agreed to waive issues

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CLARK — ARMY 20140252

regarding the unreasonable multiplication of charges and multiplicity. To provide
relief in this case would require us to set aside specifications to which appellant
specifically agreed to plead guilty and to notice alleged error that he specifically
agreed to not raise.

       Finally, we note as appellant agreed to plead guilty to these specifications and
agreed to waive issues regarding multiplicity and unreasonable multiplication of
charges, none of these issues were litigated at trial. Thus, while the Care inquiry
reasonably raises whether the batteries formed one unit of prosecution, the factual
basis for this assertion was never litigated at trial and we are left to review an
undeveloped record. Had the parties not treated the matter as waived, additional
inquiry may have revealed the unit of prosecution concerns to be without merit, or
not. Instead we have a providence inquiry which, while adequately establishing
appellant’s guilt to the charged offenses, never attempted to answer the question of
whether the offenses formed one unit of prosecution. 3 This weighs in favor of
accepting appellant’s waiver.

        While the dissent’s proposition that we consolidate the three batteries into one
offense and the two assaults involving the knife into another specification is not
unreasonable, in our exercise of this discretionary authority, we will instead affirm
all five individual assault convictions.

                                   CONCLUSION

       Having found no substantial basis in law or fact to question appellant’s pleas,
and finding the sentence appropriate, the findings and sentence as adjudged and
approved by the convening authority are AFFIRMED.

      Judge PENLAND concurs.

HAIGHT, Senior Judge, concurring in part and dissenting in part:

      I concur that appellant’s convictions for attempted rape, attempted
kidnapping, disrespect toward a noncommissioned officer, failure to obey an order,
and burglary with intent to commit rape should be affirmed. Furthermore, appellant
should remain convicted of assault consummated by battery and aggravated assault


3
  For this reason, we find the case distinguishable from Lloyd. In that case, our
superior court found the in-depth nature of military providence inquiries adequately
established that the offenses were separate. Lloyd, 46 M.J. at 24. We do not read
Lloyd as standing for the proposition that providence inquires will always provide a
sufficient factual basis to resolve unit of prosecution issues, especially in
circumstances where the parties and the military judge had no reason to inquire into
the matter.
                                           4
CLARK — ARMY 20140252

with a knife. I only disagree with my fellow judges in how many convictions of
assault should be approved.

       The majority’s declination to merge these offenses perpetuates what I
perceive may be an incomplete approach to addressing this particular set of
circumstances; that is, that an analysis of the correct unit of prosecution is merely a
subset or alternative method of determining whether an unreasonable multiplication
of charges has occurred. While the concepts of unit of prosecution, multiplicity, and
unreasonably multiplication of charges overlap and address similar concerns and are
often addressed simultaneously in case law, they are all three distinct.

       The majority views any issue regarding the unit of prosecution for assaults as
waived due to appellant’s express waiver of motions regarding multiplicity and
unreasonable multiplication of charges. Furthermore, the appellant agreed to “waive
all waivable motions known to myself or my defense counsel at this time,” a
provision comparable to one our superior court has found sufficient to waive even
those issues not expressly discussed with the military judge. See United States v.
Gladue, 67 M.J. 311 (C.A.A.F. 2009). However, the unit of prosecution problem “is
so plainly presented” here that I would correct the error. United States v. Chin, 75
M.J. __, 2016 CAAF LEXIS 312, at *9 (C.A.A.F. 26 Apr. 2016) (citation and
internal quotation marks omitted).

       “Unit of prosecution” was never mentioned, addressed, or even apparently
considered at appellant’s court-martial. Apart from appellant’s waivers just
discussed, the record makes it clear that appellant did not knowingly give up his
right to be convicted under the correct unit of prosecution. See Gladue, 67 M.J. at
316 (Baker, J., concurring in the result) (“I do not see how we can determine
Appellant’s plea was knowing and voluntary if we do not assess it in the context in
which it was explained on the record to Appellant.”). Therefore, despite appellant’s
guilty plea or any consequent waiver or forfeiture, I would notice this plain and
obvious error and merge the assaults.

       Multiplicity, a constitutional violation under the Double Jeopardy Clause,
occurs if a court, “contrary to the intent of Congress, imposes multiple convictions
and punishments under different statutes for the same act or course of conduct.”
United States v. Teters, 37 M.J. 370, 373 (C.M.A. 1993). It is well-settled that
multiplicity and unreasonable multiplication of charges are distinct concepts. See
United States v. Roderick, 62 M.J. 425, 433 (C.A.A.F. 2006) (“While multiplicity is a
constitutional doctrine, the prohibition against unreasonable multiplication of charges
is designed to address prosecutorial overreaching.”). The standard for determining
multiplicity focuses on the elements of the offenses, whereas the standard for
determining an abuse of prosecutorial discretion is reasonableness. See United States
v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001). The standard for determining the proper unit



                                           5
CLARK — ARMY 20140252

of prosecution is neither a comparison between the elements of different statutes nor
a question of reasonableness. It is a separate question unto itself.

       The relevant question when determining the appropriate unit of prosecution is
“whether conduct constitutes one or several violations of a single statutory
provision.” Callanan v. United States, 364 U.S. 587, 597 (1961). This
determination is solely one of congressional intent, permission, and allowance. See
United States v. Collins, 16 U.S.C.M.A. 167, 36 C.M.R. 323 (1966). In military
jurisprudence, our superior court has addressed the unit of prosecution for many
offenses, to include conspiracy (number of agreements vs. number of criminal
objectives), damage to property (number of items damaged vs. incidents of damage),
drunken driving resulting in injury (number of victims vs. acts of drunken driving),
robbery (number of assaults vs. number of larcenies), and obstruction of justice
(number of solicitations to provide false testimony vs. number of witnesses
solicited). See United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000); Collins, 16
U.S.C.M.A. 167, 36 C.M.R. 323; United States v. Scranton, 30 M.J. 322 (C.M.A.
1990); United States v. Szentmiklosi, 55 M.J. 487 (C.A.A.F. 2001); United States v.
Guerrero, 28 M.J. 223 (C.M.A. 1989).

       The question in such cases is framed as what was permissible, proper, or
allowable vs. impermissible, improper, or not allowed. The analysis was never
couched in terms of reasonable vs. unreasonable or one of within discretion vs.
abuse of discretion. In other words, the unit of prosecution for a given offense is
either correct or incorrect. The Supreme Court addressed this very notion when
addressing the appropriate unit of prosecution for the offense of transporting women
across state lines (number of women vs. number of transports):

             The punishment appropriate for the diverse federal
             offenses is a matter for the discretion of Congress, subject
             only to constitutional limitations, more particularly the
             Eighth Amendment. Congress could no doubt make the
             simultaneous transportation of more than one woman in
             violation of the Mann Act liable to cumulative punishment
             for each woman so transported. The question is: did it do
             so? It has not done so in words in the provisions defining
             the crime and fixing its punishment. Nor is guiding light
             afforded by the statute in its entirety or by any controlling
             gloss. . . . Again, it will not promote guiding analysis to
             indulge in what might be called the color-matching of
             prior decisions concerned with “the unit of prosecution” in
             order to determine how near to, or how far from, the
             problem under this statute the answers are that have been
             given under other statutes.



                                          6
CLARK — ARMY 20140252

             It is not to be denied that argumentative skill, as was
             shown at the Bar, could persuasively and not unreasonably
             reach either of the conflicting constructions. About only
             one aspect of the problem can one be dogmatic. When
             Congress has the will it has no difficulty in expressing it
             -- when it has the will, that is, of defining what it desires
             to make the unit of prosecution and, more particularly, to
             make each stick in a faggot a single criminal unit. When
             Congress leaves to the Judiciary the task of imputing to
             Congress an undeclared will, the ambiguity should be
             resolved in favor of lenity. . . . It merely means that if
             Congress does not fix the punishment for a federal offense
             clearly and without ambiguity, doubt will be resolved
             against turning a single transaction into multiple offenses.

United States v. Bell, 349 U.S. 81, 82-84 (1955) (emphasis added).

       There is no doubt as to what the unit of prosecution is for the offense of
assault under Article 128, UCMJ. “Congress intended assault, as prescribed in
Article 128, UCMJ, 10 USC § 928, to be a continuous course-of-conduct type
offense and that each blow in a single altercation should not be the basis of a
separate finding of guilty.” United States v. Flynn, 28 M.J. 218, 221 (C.M.A. 1989).
While several cases in the past have labeled charges involving an incorrect unit of
prosecution as also an unreasonable multiplication of charges, I have been unable to
find a case with multiple convictions where the applied unit of prosecution was
determined to be incorrect yet the multiple convictions were nevertheless allowed to
stand. I find it difficult to see how this court can say that under the circumstances
found in this case that multiple convictions “should be approved” when binding
precedent unequivocally informs us that separate findings of guilty “should not be”
approved. UCMJ art. 66(c); Flynn, 28 M.J. 218; see also United States v. Clarke, 74
M.J. 627 (Army Ct. Crim. App. 2015).

        In United States v. Campbell, 68 M.J. 217 (C.A.A.F. 2009), our superior
court, when declining to determine the unit of prosecution for possession of child
pornography (same images vs. number of different media), found that because
appellant pleaded guilty unconditionally to multiple specifications and failed in his
burden to show the specifications were facially duplicative, appellant waived his
ability to contest on appeal whether he should have been charged with only one
specification of his crime. I distinguish this case from Campbell on several grounds.
First, as explained and acknowledged by the majority, there is no current dispute
regarding what the unit of prosecution is in cases such as this; that question has been
answered. Second, because appellant pleaded guilty, the record of trial contains a
detailed factual basis and providence inquiry that show that the specifications in this
case were “‘facially duplicative’, that is, factually the same,” United States v. Lloyd,

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CLARK — ARMY 20140252

46 M.J. 19 (C.A.A.F. 1997) (citing United States v. Broce, 488 U.S. 563, 575
(1989)), in that appellant’s attack was uninterrupted and “united in time,
circumstance, and impulse.” United States v. Rushing, 11 M.J. 95, 98 (C.M.A.
1981). Indeed, it can be argued that while each specification, viewed individually,
stated an offense, because this was a continuous crime, the cumulative battery
specifications failed to state the multiple offenses of which appellant stands
convicted. Third, as referenced earlier, even in cases of waived or forfeited error,
we are still statutorily required to determine what “should be approved.” UCMJ art.
66(c). I believe we should apply the correct unit of prosecution to appellant’s
criminal misconduct.

       Accordingly, I would consolidate the three simple battery specifications into a
single specification and the two assaults involving the knife into a single aggravated
assault specification. After merger, I would affirm the remaining findings of guilty,
reassess the sentence in accordance with 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), and
affirm the approved sentence.

                                      FOR
                                       FORTHE
                                           THECOURT:
                                               COURT:




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




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