United States v. Private First Class CERION R. ALLEN ( 2014 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYCIEWICZ, and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class CERION R. ALLEN
United States Army, Appellant
ARMY 20120742
Headquarters, 82d Airborne Division
Tara A. Osborn and Stephen E. Castlen , Military Judges
Lieutenant Colonel Paul J. Cucuzzella, Staff Judge Advocate
For Appellant: Major Vincent T. Shuler, JA; Captain Robert H. Meek, JA.
For Appellee: Major Elisabeth A. Claus, JA.
19 February 2014
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SUMMARY DISPOSITION
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Per curiam:
Upon review of the entire record pursuant to Article 66(c), UCMJ, we note
that appellant was charged with and pleaded guilty to both attempted robbery and
attempted larceny (Specifications 1 and 2 of Charge I, respectively). He was also
charged with and pleaded guilty to conspiracy to commit larceny and conspiracy to
commit robbery (Specifications 1 and 2 of Charge II, respectively). * “Robbery is a
compound offense consisting of assault and larceny.” United States v. Cunningham,
19 C.M.R. 232, 233, 6 U.S.C.M.A. 106, 107 (C.M.A. 1955). “Offenses are
multiplicious if one is a lesser-included offense of the other.” United States v.
Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002). As a matter of logic, both appellant’s
*
On appeal, appellant personally challenged the attempted larceny and conspiracy to
commit larceny as multiplicious with the attempted robbery and conspiracy to
commit robbery, respectively. Appellant personally raised this issue pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). His other personal
submissions lack merit.
ALLEN—ARMY 20120742
attempt to commit robbery and his conspiracy to commit robbery necessarily include
an attempt to commit larceny and a conspiracy to commit larceny, respectively.
Accordingly, the findings of guilty of Specification 2 of Charge I and
Specification 1 of Charge II are set aside, and those specifications are dismissed .
The remaining findings of guilty are AFFIRMED. Although the military judge
varyingly used the terms “multiplicious for the purposes of sentencing” and
“unreasonable multiplication of charges for purposes of sentencing,” the record is
clear that the military judge only sentenced appellant for the grea ter offenses.
Considering the modified findings, we find the sentence as approved by the
convening authority is appropriate and 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.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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