United States v. Sergeant DEREK R. TOPE ( 2014 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
LIND, KRAUSS, and BORGERDING
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant DEREK R. TOPE
United States Army, Appellant
ARMY 20130103
Headquarters, 25th Infantry Division
David Conn, Military Judge (arraignment)
Stefan Wolfe, Military Judge (trial)
Colonel Mark A. Bridges, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Amy E. Nieman, JA; Captain James S. Trieschmann, Jr., JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Carl L. Moore, JA (on brief).
16 June 2014
---------------------------------
SUMMARY DISPOSITION
----------------------------------
BORGERDING, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of false official statement; one
specification of wrongful disposition of military property; one specification of
wrongful introduction of heroin into an installation; one specification of wrongful
possession of heroin; one specification of wrongful use of heroin; and one
specification of larceny of military property in violation of Articles 107, 108, 112a,
and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 908, 912a, 921 (2012)
[hereinafter UCMJ]. The military judge sentenced appellant to confinement for
thirty-three months. Pursuant to a pretrial agreement, the convening authority
approved only so much of the adjudged sentence as provided for confinement for
twenty-four months.
TOPE — ARMY 20130103
This case is before the court for review under Article 66, UCMJ. Appellant
assigns two errors, both relating to his convictions for wrongful use, possession, and
introduction of heroin. He also raises matters pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), which we find are without merit.
Appellant first asserts that his convictions for introduction, possession, and
use of a controlled substance are an unreasonable multiplication of charges for
findings. See United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001). 1 The
government disagrees that the specifications constitute an unreasonable
multiplication of charges, but concedes the specification alleging wrongful
possession of heroin (Specification 2 of Charge II) is a lesser-included offense of,
and therefore impermissibly multiplicious with, the specification alleging wrongful
introduction of heroin (Specification 1 of Charge II). The government asks us to set
aside and dismiss Specification 2 of Charge II.
“[A]ppellate consideration of multiplicity claims is effectively waived by
unconditional guilty pleas, except where the record shows that the challenged
offenses are ‘facially duplicative.’” United States v. St. John, 72 M.J. 685, 687
(Army Ct. Crim. App. 2013) (quoting United States v. Lloyd, 46 M.J. 19, 23
(C.A.A.F. 1997)); 2 see also United States v. Heryford, 52 M.J. 265, 266 (C.A.A.F.
2000). “Facially duplicative means the factual components of the charged offenses
are the same.” St. John, 72 M.J. at 687 (citing Lloyd, 46 M.J. at 23). “Whether
specifications are facially duplicative is determined by reviewing the language of the
specifications and ‘facts apparent on the face of the record.’” Heryford, 52 M.J.at
266 (quoting Lloyd, 46 M.J. at 24).
In all three specifications alleged as violations of Article 112(a), UCMJ,
appellant is charged with the use, possession, or introduction of heroin “on divers
occasions between on or about 12 April 2012 and 30 May 2012.” The specifications
alleging possession and introduction both charge appellant with possessing or
introducing “some amount” of heroin. We find the record reflects the amount of
heroin appellant used and introduced is precisely the same amount he possessed.
The stipulation of fact states appellant “would purchase heroin off the installation,
Schofield Barracks, Hawaii . . . and then bring the drugs backs on post to wrongfully
use. Specifically, he would transport the drugs onto the installation in his personally
1
The military judge considered the three specifications “as one offense for
sentencing purposes.”
2
“We interpret this to mean that an unconditional guilty plea, without an affirmative
waiver, results in a forfeiture of multiplicity issues absent plain error. An appellant
may show plain error and overcome forfeiture by proving the specifications are
facially duplicative.” St. John, 72 M.J. at 687 n.1 (citing United States v. Harcrow,
66 M.J. 154, 156 n.1 (C.A.A.F. 2008)).
2
TOPE — ARMY 20130103
owned vehicle and use them in Mr. [D’s] barracks room.” Neither the stipulation of
fact nor appellant’s admissions during the providence inquiry establish any facts that
appellant possessed a different amount of heroin than what he used or introduced
into Schofield Barracks. Accordingly, under the facts of this case, we agree with the
government and further find that Specification 2 of Charge II (wrongful possession)
is “facially duplicative” with both Specification 1 of Charge II (wrongful
introduction) and with the Specification of the Additional Charge (wrongful use).
See United States v. Bullington, 18 M.J. 164 (C.M.A. 1984) (per curiam) (holding
use and possession of a controlled substance was multiplicious where appellant used
the same amount at the same place and on the same date); United States v.
Hendrickson, 16 M.J. 62 (C.M.A. 1983) (per curiam) (holding possession and
introduction of a controlled substance was multiplicious where appellant possessed
and introduced the same amount at the same place and on the same date); United
States v. Thomas, 65 M.J. 132, 135 (C.A.A.F. 2007) (“[W]rongful possession of
drugs is itself a lesser included offense of wrongful introduction under Article 112a,
UCMJ.”)). We will grant relief in our decretal paragraph.
In his second assignment of error, appellant asserts, inter alia, 3 that the
military judge failed to define “divers occasions” when reading the elements for
wrongful introduction of heroin and then failed to discuss with appellant the factual
basis for the “on divers occasions” language with respect to this specification.
Appellant is correct on both counts.
We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A guilty
plea will only be set aside if we find a substantial basis in law or fact to question the
plea. Id. (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). The
court applies this “substantial basis” test by determining whether the record raises a
substantial question about the factual basis of appellant’s guilty plea or the law
underpinning the plea. Id.; see also UCMJ art. 45(a); Rule for Courts-Martial
[hereinafter R.C.M.] 910(e). “For this [c]ourt to find a plea of guilty to be knowing
and voluntary, the record of trial must reflect that the elements of each offense
charged have been explained to the accused by the military judge.” United States v.
Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (quoting United States v. Redlinski,
58 M.J. 117, 119 (C.A.A.F. 2003) (internal quotations omitted); see also United
States v. Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969); UCMJ art.
45(a); R.C.M. 910(c)(1). “‘Rather than focusing on a technical listing of the
3
Appellant’s claim that the military judge did not discuss with appellant whether or
not he knew the substance he possessed was, in fact, heroin is rendered moot by our
ruling on his first assignment of error. We nonetheless note that appellant admitted
that he knew the substance he used and introduced into post was heroin because he
“recognized it to be heroin” and because he felt the effects of the drug after using it,
indicating to him that it was heroin.
3
TOPE — ARMY 20130103
elements of an offense, this [c]ourt looks at the context of the entire record to
determine whether an accused is aware of the elements, either explicitly or
inferentially.’” Schell, 72 M.J. at 345 (quoting Redlinski, 58 M.J. at 119). “If the
military judge fails to explain the elements to an accused, it is reversible error
unless ‘it is clear from the entire record that the accused knew the elements,
admitted them freely, and pleaded guilty because he was guilty.’” Schell, 72 M.J. at
345 (quoting United States v. Jones, 34 M.J. 270, 272 (C.M.A. 1992)).
In this case, the military judge read the definition of “divers occasions” with
respect to the specification alleging wrongful possession of heroin. The language in
the stipulation of fact supports multiple instances of use, possession, and
introduction. Moreover, during the colloquy as to the wrongful possession
specification, appellant stated, “I had a controlled substance at least twice, sir.”
Appellant confirmed that these were “two different instances separated in time.”
Appellant also admitted that he “used heroin twice.” In accordance with our finding
that the amount of heroin appellant possessed is the exact same amount of heroin
that appellant introduced on to Schofield Barracks and then used, we find that
appellant understood the meaning and effect of pleading guilty to using heroin and
introducing it onto Schofield Barracks on “divers occasions” and find no substantial
basis in fact or law to question his plea to Specification 1 of Charge II (wrongful
introduction on divers occasions).
Therefore, after considering the entire record and the parties’ briefs, we set
aside and dismiss the finding of guilty of Specification 2 of Charge II (wrongful
possession). 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 (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), 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
ordered restored.
Senior Judge LIND and Judge KRAUSS concur.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
4